Judge's ruling in Delaware opens door for cases involving Munoz to be re-litigated

It is rare for a Judge to openly and harshly rip apart a witness in a published court decision, as Delaware Superior Court Judge Peggy Ableman did in 2006 when she attacked the credibility and integrity of Eric Munoz, a UMDNJ trauma surgeon and a four-term Republican Assemblyman from Union County.

Ableman's comments that allegedly sham expert testimony, like the one offered by Munoz, is exactly why states like New Jersey have adopted laws to prevent frivolous medical malpractice lawsuits to keep insurance rates in check. Munoz, a Republican Assemblyman from Union County, has been an outspoken proponent of medical malpractice reform. A few years ago, while escorting the Governor for a speech on the Assembly floor, he wore a doctors gown to show the plights of his fellow physicians.

But at the same time, Munoz was allegedly helping plaintiffs less than credible lawsuits that he was, apparently, not qualified to pass judgment on. This is not something minor. The Delaware court opinion could open the door for other defendants in cases where Munoz acted as an expert, to re litigate. That puts some legitimate victims of medical malpractice in danger, as well as potentially innocent defendants in the medical community.

As a way of cracking down on frivolous lawsuits, a number of states, including New Jersey and Delaware, require plaintiffs in malpractice cases to produce an "affidavit of merit" within a short time period of the lawsuit being filed. The affidavit of merit statute requires the plaintiff to produce an expert professional to give his or her sworn opinion that the lawsuit is legitimate and that malpractice may have occurred. If the plaintiff cannot produce an affidavit of merit, the lawsuit is dismissed.

New Jersey's old affidavit of merit law was singled out for criticism during the recent medical malpractice crisis. The physician community pointed out that the N.J. affidavit of merit statute was too weak, and that many plaintiffs were shopping for "hired guns" around the country who would come in and give affidavits on areas of medicine for areas where they were no experts. For example, there was nothing under New Jersey law to prohibit a family practice physician from filing an affidavit of merit statute in a complicated case involving neurosurgery.

The New Jersey Medical Society and others suggested strongly suggested reforming the law to require that the affidavit of merit include expert testimony from the same specialty or subspecialty of the defendant physician. Under legislation signed into law during the last legislative session, New Jersey strengthened its affidavit of merit law on expert witness testimony. New Jersey -- like Delaware -- now requires the plaintiff's expert to be of the same specialty or subspecialty as the defendant physician. This is to help ensure that the affidavit is produced by a true expert in the field and not a hired gun.

In New Jersey, Munoz was a prime sponsor of legislation that would require experts to be board certified in the area of medicine they were addressing.