October 3, 2018
On September 6, 2018, the Appellate Division reinstated Plaintiffs’ Complaint in the matter of Linda Cowley, et al. v. Virtua Health System, et al., after a trial court dismissed the medical malpractice claim due to Plaintiff’s failure to obtain an “Affidavit of Merit.”
One of New Jersey’s most successful tort reforms, the “Affidavit of Merit Act” requires plaintiffs in professional malpractice actions to obtain affidavits of licensed professionals in the same field to opine that there exists a reasonable probability of professional malpractice having occurred in the action. This requirement is a pleading requirement, which required plaintiffs to obtain and provide such an affidavit within a short period of time after a defendant answers. Failure to obtain such an affidavit is considered failure to state a cause of action, and is strictly enforced – most of the time.
In this instance, however, the Appellate Division reversed a trial court dismissal of the Complaint due to lack of an Affidavit of Merit. In this case, Plaintiff alleged that during, or after, a gallstone procedure, a nasogastric (NG) tube (a tube inserted through the nose, down the throat, and into the stomach) was placed pursuant to a physician’s order. Less than two (2) days later, the Plaintiff herself pulled the tube out and “refused replacement.” The nurses at the facility did not reinsert the tube, and did not contact the prescribing physician for further instructions. After undergoing surgery and being discharged from the hospital, the Plaintiff suffered various post-surgical complications that, she contends, were caused by the “failure to comply with the order” to insert the NG tube.
After failing to obtain an Affidavit of Merit, the trial court, on defense motion, dismissed the Complaint with prejudice. Plaintiff argued in opposition that an Affidavit of Merit was not required, insofar as the “common knowledge exception” applied. This common law abrogation of the Affidavit of Merit Act is strictly construed, and only applies when facts arise which a jurors’ knowledge as laypersons is sufficient to enable them to assess a professional’s alleged negligence.
The plaintiff herein argued that the original order to insert the NG tube was continuing, and that a juror could understand the standard of care required in order to follow that order – including what nurses should do when a prescribed NG tube was removed. Common knowledge cases require demonstration, or allegation, of obvious or extreme error. The Appellate Division found that this case presented the circumstance “of an alleged obvious act or omission, rather than an affirmative action that clearly bespoke negligence.” The Court analogized the alleged failing of the defendants to cases where nurses did not inquire as to how often a diabetic patient should receive insulin; or where health providers failed to obtain blood tests to monitor Lithium levels, despite a physician’s order.
The health providers’ failure to even contact the attending physician who had given the NG tube orders to inquire as to what to do bespoke plain and obvious negligence, according to the Appellate Division.
This case demonstrates that, while the Affidavit of Merit Act provides various protections to licensed professionals, courts will permit certain claims that they deem meritorious on their face to proceed despite apparent violations of the Act.