LPN Not Subject To Affidavit Of Merit Statute: The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its published opinion dated November 9, 2022 that a licensed practical nurse (“LPN”) is not a “licensed person” as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29 “because the AOM statute applies only to certain specified “licensed person[s]” and a licensed practical nurse is not included in the statute.”
New Jersey AOM Statute
The AOM statute was enacted in 1995 as part of a tort reform package. The statute was designed to strike a balance between reducing frivolous lawsuits and permitting injured plaintiffs to recover for meritorious claims. The AOM statute requires a plaintiff alleging “malpractice or negligence by a licensed person” to file an “affidavit of an appropriate licensed person” who can attest that there is a “reasonable probability” that defendant’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” N.J.S.A. 2A:53A-27.
Section 26 of the statute identifies sixteen “licensed person[s]” and a “healthcare facility” as covered by the statute. N.J.S.A. 2A:53A-26. Accordingly, the AOM statute expressly limits the professionals covered by its terms.
One of the identified “licensed person[s]” in the AOM statute is “a registered professional nurse pursuant to P.L.1947, c. 262 (C.45:11-23 et seq.).” N.J.S.A. 2A:53A-26(i). The statute identified in that subsection is the nursing licensure statute (the Nursing Statute), N.J.S.A. 45:11-23 to -84. The Nursing Statute defines “[t]he practice of nursing” for “a registered professional nurse.” N.J.S.A. 45:11-23(b). The Nursing Statute also defines the practice of nursing for “a licensed practical nurse.” In addition, the Nursing Statute provides definitions for a “[h]omemaker-home health aide,” an “[a]dvanced practice nurse,” and a “[c]ollaborating physician.” N.J.S.A. 45:11-23(c), (d), and (e).
The New Jersey Appellate Court stated: “The AOM statute expressly uses the term “a registered professional nurse.” N.J.S.A. 2A:53A-26(i). Although the AOM statute states that it covers “a registered professional nurse pursuant to P.L.1947, c. 262 (C.45:11-23 et seq.),” the reference to the Nursing Statute plainly does not include “a licensed
practical nurse” … Nowhere in that definition of a registered professional nurse is there a reference to a licensed practical nurse. Instead, the Nursing Statute has a separate definition of the practice of nursing as a licensed practical nurse. … the Nursing Statute defines the practice of nursing separately for a registered professional nurse and a licensed practical nurse and recognizes the additional responsibilities of registered professional nurses to diagnose and treat physical and emotional health problems. Moreover, in defining the practice of nursing as a licensed practical nurse, the Legislature expressly recognized that a licensed practical nurse works under the direction of “a registered nurse or licensed or otherwise legally authorized physician or dentist.””
Hence, the New Jersey Appellate Court held: “we hold that the AOM statute does not cover a negligence claim against a licensed practical nurse.”
Source Gilligan v. Junod, L.P.N., Docket No. A-1907-21.
If you or a loved one may have been injured (or worse) as a result of LPN medical negligence in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical negligence claim against a licensed practical nurse for you and represent you or your loved one in a L.P.N. medical malpractice case, if appropriate.
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