New Jersey Appellate Court Affirms No Affidavit Of Merit Needed For Malpractice Claim Involving Unlicensed Employee

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) stated in its published opinion filed on January 27, 2021, “This appeal presents a discrete yet novel issue, requiring us to determine whether an affidavit of merit (AOM) is mandated under the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29, when a plaintiff’s sole claim against a health care facility, which is defined as a licensed person under the AMS, is vicarious based on the alleged medical negligence of an employee, who is not a licensed person within the meaning of the AMS and as to whom no AOM is required. For the reasons that follow, we hold an AOM is not required in those specific circumstances. We therefore reverse the order under review, and remand for reinstatement of the complaint.”

The Underlying Facts

On April 15, 2019, plaintiff Troy Haviland filed a one-count complaint, alleging he was injured at Lourdes Medical Center of Burlington County, Inc. (Lourdes) the previous year. During a radiological examination of his left shoulder on February 23, 2018, an unidentified technician asked plaintiff to “hold weights contrary to the [ordering physician’s] instructions,” causing injuries that thereafter required surgical repair of the plaintiff’s shoulder. The plaintiff’s complaint alleged John Doe and Lourdes “fail[ed] to properly perform . . . imaging and otherwise deviated from accepted standards of medical care,” thereby proximately causing plaintiff to suffer serious personal injuries. The plaintiff also claimed Lourdes was vicariously liable for Doe’s negligent acts, as its “agent, servant and/or employee.”

The AMS requires service of an AOM “[i]n any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation.” N.J.S.A. 2A:53A-27. The term “licensed person” is defined in section 26 of the AMS and is expressly limited to sixteen individual professionals, and “a health care facility.” N.J.S.A. 2A:53A-26.

The New Jersey Appellate Court stated, “the parties do not dispute that Doe was a radiology technician at the time he performed plaintiff’s radiological examination. It is further undisputed that a radiology technician is a health care professional who does not fall within the definitions of a licensed person under the AMS. See N.J.S.A. 2A:53A-26. Accordingly, the parties agree that an AOM was not required for plaintiff’s claims of medical negligence against the radiology technician.”

“To establish vicarious liability, a plaintiff therefore “must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment.” Id. at 409. Therefore, the employer’s standard of care is not directly implicated, but is imputed from that of its employee.” Neither the Supreme Court nor this court has directly considered whether an AOM is required where a plaintiff’s sole theory of liability against a licensed entity is vicarious based upon the alleged medical negligence of an unlicensed person.”

The New Jersey Appellate Court further stated: “we initially observe the Legislature expressly enumerated nearly twenty professionals, including a health care facility, within the definition of a licensed person as used in the AMS. Radiology technicians were excluded from that definition … having abandoned his direct liability claims against Lourdes, plaintiff’s remaining claims arose solely from the technician’s alleged medical negligence; plaintiff no longer claimed Lourdes deviated from its professional standards. Plaintiff likewise relinquished his negligent supervision and hiring allegations. Under plaintiff’s remaining vicarious liability theory, Lourdes only may be held liable for the radiology technician’s alleged medical negligence if plaintiff was injured while Doe was “acting within the scope of his . . . employment” with Lourdes.”

The New Jersey Appellate Court held: “An AOM is not required for a health care facility when the plaintiff’s claims in a medical negligence action are limited to vicarious liability for the alleged negligence of its employee, who does not meet the definition of a licensed person under section 26 of the AMS … We express no opinion as to whether plaintiff would need to present expert testimony on radiology standards of care to meet his burden of proof at trial.”

Source Haviland v. Lourdes Medical Center of Burlington County, Inc., Docket No. A-1349-19T3.

If you or a loved one may have been injured as a result of medical negligence in New Jersey or in another U.S. state, you should promptly consult with a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Friday, February 19th, 2021 at 5:26 am. Both comments and pings are currently closed.


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