The New Jersey Supreme Court has affirmed the Appellate Division’s decision that plaintiffs are not required to serve an Affidavit of Merit against defendant health care facilities for claims of vicarious liability arising from the negligent conduct of an employee for whom an Affidavit of Merit is not required by N.J.S.A. 2A:52A-26.
The New Jersey Affidavit of Merit Statute, N.J.S.A. § 2A:53A-27 was enacted to ensure that plaintiffs seeking to assert claims of professional malpractice can first make a threshold showing that their claims are meritorious, allowing courts 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 that plaintiffs alleging claims of professional malpractice against certain licensed professionals file an affidavit from a similarly licensed professional affirming that a reasonable probability exists that the licensed defendant’s actions deviated from accepted standards of care. Licensed professionals are defined by the statute, N.J.S.A. § 2A:53A-26, as individuals licensed in one of the fifteen delineated professions or a health care facility. The statute defines a health care facility as a facility or institution engaged principally in providing services for the diagnosis or treatment of human disease. The 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., Haviland alleged that he was injured during a radiological examination of his left shoulder when a radiology technician asked Haviland to “hold weights contrary to the [ordering physician’s] instructions.” Haviland’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, Haviland confirmed that his claims against Lourdes Medical Center are only based on a theory of vicarious liability.
The Burlington County Court dismissed Haviland’s Complaint for failure to serve an Affidavit of Merit, finding that Lourdes Medical Center, a health care facility, is a “licensed professional” under the statute and therefore an Affidavit of Merit was required for Haviland to proceed on his claims. The Appellate Division reversed the Court’s decision, finding that an Affidavit of Merit is not required for Haviland’s claims against Lourdes Medical Center because the claims were based on a theory of vicarious liability for the actions of an employee who was not a licensed professional under the statute.
In affirming the Appellate Division’s decision, the New Jersey Supreme Court emphasized that the New Jersey Legislature intended for an Affidavit of Merit to be required only where 1) a plaintiff’s claim is for personal injuries, wrongful death, or property damages, 2) the personal injuries, wrongful death, or property damages result from an alleged act of malpractice or negligence, and 3) the alleged act of malpractice or negligence is carried out by a licensed person in the course of practicing the person’s profession.
The Supreme Court emphasized that the requirement of an Affidavit of Merit hinges on the nature of the underlying conduct which resulted in the plaintiff’s injuries. Therefore, when the conduct at issue is performed by a licensed person, an Affidavit of Merit is required. Previously, New Jersey Courts have held that an Affidavit of Merit is required to maintain claims against unlicensed entities for the negligent acts of licensed employees.
Haviland’s claims arose from the conduct of an unlicensed employee of a licensed entity. Focusing on the status of the individual who performed the alleged negligent act, the New Jersey Supreme Court found that because Haviland’s claims arise from the conduct of the radiology technician employed by Defendant Lourdes Medical Center and a radiology technician is not a licensed professional under the statute, an Affidavit of Merit is not required to maintain Haviland’s claim despite Defendant Lourdes Medical Center’s status as a licensed professional.
The Court’s decision impacts the Affidavit of Merit statute’s function in assisting the Courts in the early identification of meritless claims against professional entity defendants for the acts of their employees who are not among the “licensed professionals” delineated by N.J.S.A. § 2A:53A-26.