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A Better Partnership
February 15, 2012

COA Opinion: Affidavit of merit for medical malpractice claim based on improper reading of x-ray was not insufficient even through expert did not review the allegedly misinterpreted film

It was discovered that, in the statutorily-required affidavit of merit that accompanied a plaintiff's notice of intent to bring a medical malpractice claim for misdiagnosis of an x-ray, the expert had been provided with later x-ray film of the plaintiff, and not the x-ray film that had been allegedly misdiagnosed. Indeed, it appears that x-ray film at issue could not be located by either party. The trial court concluded that without the misdiagnosed x-rays, the expert's opinion of a misdiagnosis was speculative and dismissed plaintiff's complaint. In Kalaj v. Kahn, the Court of Appeals reversed and found that plaintiff had provided a statutorily sufficient affidavit of merit. Specifically, the court noted that plaintiff's expert had concluded that he did not need the allegedly misdiagnosed x-rays to render his opinion, but instead could reach that opinion based upon plaintiff's symptoms and other x-rays taken around the same time as those taken by defendant. Judge Borrello's opinion noted that such an opinion is all that is necessary to satisfy the statutory requirement for an affidavit of merit, and that even though the expert relied on circumstantial evidence to reach his conclusion, that does not mean that his testimony (without the benefit of reviewing the x-rays in question) would be inadmissibly speculative. Thus, the Court of Appeals reinstated plaintiff's complaint and remanded the case for further proceedings.

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