In a recent decision, the New Jersey Appellate Division provided new guidance on whether an affidavit of merit is required when a plaintiff’s sole claim against a health care facility is based on a theory of vicarious liability for the alleged medical negligence of an employee. The Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27, requires the plaintiff alleging claims of professional malpractice against certain licensed professionals to file an affidavit from an appropriately licensed professional stating that there exists a reasonable probability that the defendant’s actions deviated from accepted standards of care. Generally, the licensed professionals are individuals licensed in a profession delineated by N.J.S.A. § 2A:53A-26. However, licensed professionals can also be organizations and facilities, such as health care facilities. Traditionally, when the plaintiff’s vicarious liability claim against a firm, organization or facility is based on the negligence of a “licensed professional,” the plaintiff must serve an affidavit of merit from an expert with the same kind of professional license as the alleged negligent employee.
In a recent decision, Troy Haviland v. Lourdes Medical Center of Burlington County, Inc., A-1349-19T3, the Appellate Division addressed the need for a plaintiff to serve an affidavit of merit when Plaintiff only claimed vicarious liability against a health care facility for claims of negligence of an employee whose role is not defined as a “ licensed professional” pursuant to N.J.S.A. § 2A:53A-26. In Haviland, Plaintiff alleged he was injured during a radiological examination of his left shoulder when a radiology technician asked plaintiff to “hold weights contrary to the [ordering physician’s] instructions.” Plaintiff’s complaint alleged that the unidentified radiology technician and Lourdes Medical Center, “fail[ed] to properly perform … imaging and otherwise deviated from accepted standards of medical care” and claimed Lourdes Medical Center was vicariously liable for the radiology technician’s negligent acts. Critically, Plaintiff advised he was proceeding against Lourdes Medical Center on a theory of vicarious liability only.
The Burlington County Superior Court dismissed Plaintiff’s complaint for failure to serve an affidavit of merit, finding that Lourdes Medical Center is a “licensed professional.” However, the Appellate Division reversed the Court’s decision and held that Plaintiff was not required to serve an affidavit of merit for his vicarious liability claims against Lourdes Medical Center. Plaintiff’s sole claim against Lourdes Medical Center was vicarious liability for the negligent actions of the radiology technician. A radiology technician is not a “licensed professional” defined by N.J.S.A. § 2A:53A-26.
The Court noted that the doctrine of respondeat superior recognizes the principle of vicarious liability in which a master will be held liable for certain wrongful acts of his or her employees. More specifically, under the doctrine, “an employer can be found liable for the negligence of an employee causing injuries to their parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). In order to establish vicarious liability, a plaintiff “must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of employment.” Id. at 409.
The Appellate Division held that the standard of care at issue in a claim for vicarious liability is the standard of care of the employee, not that of the employer. Therefore, because Plaintiff’s claims were solely based on vicarious liability of the radiology technician, whose job title was not listed as the “licensed persons” defined by N.J.S.A. § 2A:53A-26, the affidavit of merit statute did not apply to Plaintiff’s claim and Plaintiff was not required to serve an affidavit of merit when his only claim against Lourdes Medical Center.
Parties must take great care in evaluating the basis for the claims of vicarious liability to determine whether the employee whose conduct is at issue is a “licensed professional” pursuant to N.J.S.A. § 2A:53A-26. Claims arising from negligent actions of “licensed professional” employees may be subject to the affidavit of merit statute, even when the employer is not a “licensed professional.” However, as this recent case explains, claims arising from the negligent actions of employees who are not licensed professionals may not be subject to the affidavit of merit statute, even though the defendant is a “licensed professional.”