Wade Clark Mulcahy LLP

<p style="text-align: justify;">The New Jersey Supreme Court recently held that a third-party defendant in a medical malpractice action was subject to contribution claims and needed to participate in the trial despite the plaintiff not having filed a direct claim against the third-party defendant, and no Affidavit of Merit being served against it.</p>
<p style="text-align: justify;"><em><a href="https://njcourts.gov/attorneys/assets/opinions/supreme/a_88_18.pdf?c=6lp">Samuel Mejia v. Quest Diagnostics, Inc</a>.</em> involved Quest’s failure to detect the plaintiff’s cervical cancer.  The plaintiff sued as a result and the Quest defendants filed a third-party claim for contribution and indemnification against Dr. Fernandez who was the gynecologist.  The plaintiff never filed a direct claim against Dr. Fernandez.</p>
<p style="text-align: justify;">Shortly before trial, Fernandez filed a motion seeking to be treated as defendants in previous similar cases.  Specifically, in one such case, a third-party public entity defendant was barred from suit pursuant to the notice of claims provisions of Tort Claims Act.  In another case, a professional defendant was dismissed from suit because of the plaintiff’s failure to serve an affidavit of merit.  In those cases, the third-party defendants were relieved from participating at trial, but the remaining defendants were entitled to present evidence of their negligence.  Such defendants were allowed credits for the percentages of fault attributed to the relieved third-party defendants.  Fernandez’s motion was ultimately denied.  The appellate division affirmed, and Fernandez appealed to the Supreme Court of New Jersey.</p>
<p style="text-align: justify;">Ultimately, the Supreme Court affirmed the denial.  In reaching its determination, the Court held that third-party defendants are subject to contribution claims filed against them by joint tortfeasors unless there exists a right to a dismissal.  The fact that the plaintiff could not recover from Fernandez directly did not mean that Fernandez’s participation was not necessary to enable the trier of fact to allocate fault.  Moreover, a defendant does not have to provide an affidavit of merit against a third-party defendant, especially if the defendant serves an expert report opining that the third-party defendant deviated from the accepted standard of care.</p>
<p style="text-align: justify;">Accordingly, in professional negligence actions, parties should be aware, that an affidavit of merit is not necessarily needed to implead a third-party professional defendant.  Moreover, if the plaintiff does not assert a direct claim against a third-party defendant, this does not <em>ipso facto</em> result in the third-party defendant not being required to participate at trial.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this post.  If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>
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