UPDATE: Third Circuit Upholds Dismissal on Appeal (See below)

O’Brien & Ryan attorneys Dan Ryan and Anthony P. DeMichele obtained a dismissal of all claims lodged against a kidney transplant team in New Jersey federal court. 

The plaintiff had received a kidney from a co-worker, who was positive for the CMV virus, rather than his wife, who was negative for the CMV virus.  After contracting the CMV virus, the plaintiff alleged that he would have chosen to receive a kidney from his wife had he been made aware of the donor’s positive CMV virus.  He alleged that the defendant transplant team failed to adhere to the standard of care and failed to obtain informed consent for the procedure.  He also brought a claim against the hospital where the transplant took place for fraudulent misrepresentation.  The defendants denied these allegations.

Pursuant to New Jersey substantive law, the plaintiff submitted an affidavit of merit by a family physician.  The defendants thereafter moved to dismiss the plaintiff’s complaint for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, et seq.  The plaintiff argued that no affidavit of merit was required, or, in the alternative, the affidavit of merit by the family physician met the requirements of the statute.

The court, in its written opinion, disagreed.  It found that the plaintiff’s allegations did not meet the common knowledge exception to the obligation to present expert testimony.  Further, each of the plaintiff’s claims, including the claims for lack of informed consent and fraudulent misrepresentation, required proof of deviation from a professional standard, and, therefore, an affidavit of merit. 

Finally, the court characterized the plaintiff’s contention that informed consent is the same across all medical disciplines as nonsense.  “Certainly there is a difference between informed consent for a flu shot and informed consent for a kidney transplant.”  Even if a family physician has general knowledge regarding the CMV virus, “there is no evidence that he has expertise as to how the viruses relate to the risks involved in kidney transplant surgery.”  Accordingly, the plaintiff’s claims were dismissed with prejudice.


Following the dismissal of his claims with prejudice by the District Court, the plaintiff filed an appeal to the United States Court of Appeals for the Third Circuit.  After reviewing briefs and holding oral argument, the Third Circuit issued an opinion affirming the dismissal.

The court found that this case falls squarely within prior Third Circuit precedent which held that affidavits of merit are required to pursue informed consent cases.  Despite the plaintiff’s argument that the facts of this case meet the common knowledge exception to the affidavit of merit requirement, the Third Circuit held the intervening New Jersey Supreme Court cases, including those relating to the common knowledge exception, did not alter the analysis for informed consent cases.  The court also held that the plaintiff did not substantially comply with the affidavit of merit requirement.  Therefore, the judgment below was upheld.