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.”

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 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.

Div. 2014). The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires that a plaintiff in a professional malpractice or professional negligence case submit at an early stage an affidavit of merit (“AOM”) from an “appropriate licensed person” that shows a “reasonable probability” that the defendant professional’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” But the statute does not comprehensively define “appropriate licensed person,” a term that appears in section 27 (except for “the more stringent specialization requirements imposed for affiants in medical malpractice cases in N.J.S.A. 2A:53A-41).Today’s opinion, written by Judge Sabatino, analyzes the issue at length in the context of a complaint against a licensed architect, supported by an AOM from a licensed engineer, and concludes that only a “like-licensed” person is an “appropriate licensed person” under the statute.

Hargett v. Hamilton Park OPCO, LLC, et al., No. A-2036-22, 2023 WL 8533057 (N.J. App. Div. Dec. 11, 2023) (approved for publication)The trial court dismissed the plaintiff’s complaint with prejudice for failure to provide an appropriate affidavit of merit (AOM) pursuant to N.J.S.A. 2A:53A-26 to -29. The plaintiff served a single AOM on behalf of all claims against the defendants: Alaris Health, Jersey City Medical Center, and the nursing and administrative staffs at both facilities. The AOM alleged collective negligence by multiple, unidentifiable nurses, but it failed to identify any individually negligent persons or acts. The plaintiff appealed the trial court’s dismissal of her complaint. On appeal, the appellant argued that she was not required to serve an AOM that identified individual nurses because the case—involving a pressure injury—was not premised upon isolated acts of negligence but, rather, was due to the negligence of the nursing staff as a whole. In its opinion, the Appellate Division recounted the general rules that: (1) the submission of an appropriate AOM is an element of a professional malpractice claim (Meehan v. Antonellis, 226 N.J. 216, 228 (2016)); (2) failure to provide an AOM is deemed a failure to state a cause of action (N.J.S.A. 2A:53A-29); and

” The Appellate Division answered “yes.”The final appeal is Cowley v. Virtua Health System. The question presented there is “Under the circumstances presented, did the ‘common knowledge’ exception apply to plaintiffs’ claims of medical malpractice, thereby relieving plaintiffs of their obligation to serve an affidavit of merit as required by the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29?” A published opinion of a three-judge Appellate Division panel, reported at 456 N.J. Super. 278 (App.

Placed in the Middlesex County Adult Correctional Facility, he died there, 24 hours after his arrest, while strapped to a “restraint chair.”Plaintiffs sued nineteen defendants, including three nurses at the Correctional Facility. But plaintiffs’ original attorney did not take any action to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. The attorney did not obtain an affidavit of merit, which the statute required in order for claims of professional negligence or malpractice to proceed against the nurses.

That result arose from the Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42 (“PFA”). The PFA goes beyond the requirements of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (“AOS”).Judge Fasciale issued an opinion for the Appellate Division today in which the expert that plaintiff named, Dr. John Edoga, had been retired for five years before the occurrence that formed the basis for plaintiff’s medical negligence case.

Hill International, Inc. v. Atlantic City Board of Education, 2014 N.J. Super. LEXIS 177 (App. Div. Dec. 30, 2014) The Superior Court of New Jersey, Appellate Division held that, in order to support of claim of professional malpractice or professional negligence, New Jersey’s Affidavit of Merit Statute, NJSA 2A:53A-26 to -29, requires that the affidavit of merit must be signed by an affiant who is licensed within the same profession as the defendant. In 2009, the Atlantic City Board of Education (“School Board”) and SOSH Architects (“SOSH”) entered into a contract for the design of a school building.

Judge Kimmelman also wrote the Appellate Division’s opinion in Cornblatt v. Barow, 303 N.J. Super. 81 (App. Div. 1997), a case that later led to a landmark opinion of the Supreme Court under the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, in Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998).