Business & Commercial Litigation Alert

In March, we issued an alert regarding the New Jersey Appellate Division’s recent guidance on whether an Affidavit of Merit is required by N.J.S.A. § 2A:53A-27.  Specifically, the Court addressed 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 New Jersey Supreme Court has since agreed to weigh in on the decision.  

The Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27 was enacted to require plaintiffs seeking to assert claims of professional malpractice to make a threshold showing that their claim is meritorious at an early stage in the litigation, allowing the court to “weed out” meritless claims.  Galik v. Clara Maass Medical Center, 167 N.J. 341, 350-1 (2001) (citing Cornblatt v. Barow, 153 N.J. 218, 242 (1998). The statute requires plaintiffs alleging claims of professional malpractice against certain licensed professionals to file an affidavit from a similarly licensed professional.  The Affidavit must state that there exists a reasonable probability that the defendant’s actions deviated from accepted standards of care. Licensed professionals are individuals licensed in a profession delineated by N.J.S.A. § 2A:53A-26.  While the majority of “licensed professionals” are professions held by individuals, the statute identifies health care facilities as licensed professionals. Id.  A health care facility is defined generally as a facility or institution engaged principally in providing services for the diagnosis or treatment of human disease. Id., N.J.S.A. § 26:2H-2. This definition can include most hospitals, extended care and rehabilitation facilities, nursing homes and diagnostic laboratories.

In Troy Haviland v. Lourdes Medical Center of Burlington County, Inc., A-1349-19T3, the 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.  Radiology technicians are not “licensed persons” as defined by N.J.S.A. § 2A:53A-26

The Burlington County Court dismissed plaintiff’s complaint for failure to serve an Affidavit of Merit, finding that Lourdes Medical Center is a “licensed professional.”  The Appellate Division reversed the trial court’s decision and held that Haviland was not required to serve an Affidavit of Merit for his vicarious liability claims. The Appellate Division articulated 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, the Affidavit of Merit statute did not apply to plaintiff’s claim.

While the New Jersey Supreme Court has not expressed its reasoning behind deciding to hear argument on the case, this is certainly a matter for New Jersey healthcare professionals to watch.  The decision on appeal indicates that claims arising from the negligent actions of employees of health care facilities, whose professions are not delineated in the list of licensed professionals, may not be subject to the Affidavit of Merit statute, even if the defendant/employer is a “licensed professional.”  The Supreme Court’s ultimate interpretation on this matter could greatly impact the Courts’ ability to identify meritless claims against professional defendants for the acts of their employees who are not among the “licensed professionals” delineated by N.J.S.A. § 2A:53A-26 at an early stage of litigation.

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