The issue decided by the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) in its August 31, 2023 Per Curium opinion was whether an affidavit of merit must be served on a defendant, who as a physician is a “licensed person” within the meaning of the Affidavit of Merit Statute, to support a negligence claim based on a failure to report suspected child abuse pursuant to N.J.S.A. 9:6-8.10.

The New Jersey Appellate Court held that “because the alleged underlying harmful conduct – the failure to report suspected child abuse under N.J.S.A. 9:6-8.10 – does not implicate the standards of care within Gordina’s profession, see McCormick, 446 N.J. Super. at 613-14, we hold the motion judge erred in concluding plaintiff was required to provide an affidavit of merit regarding her claim against Gordina.”

The Underlying Facts

On July 21, 2021, plaintiff filed a complaint against defendants Tyshkov, Maria Tyshkov, Medkey LLC, Atlantic Health System, Inc., Overlook Medical Center, RWJ Barnabas Health, Inc., and Saint Barnabas Medical Center. She alleged Tyshkov, who began to treat plaintiff in 2007 when she was nine-years old, had sexually assaulted her when she was eighteen-years old during an April 2016 examination and on several other occasions. According to plaintiff, Tyshkov was arrested on March 29, 2019, and pleaded guilty to two counts of fourth-degree criminal sexual contact and one count of endangering the welfare of a minor on December 3, 2020.

On February 9, 2022, plaintiff amended her complaint, naming Alla Gordina, M.D. as a defendant. In count VIII, entitled “NEGLIGENCE AND GROSS NEGLIGENCE,” plaintiff alleged Gordina had possessed information in late 2017 or early 2018 “that would reasonably make her believe . . . Tyshkov was being inappropriate and/or assaulting his female patients.” Plaintiff asserted Gordina had failed to fulfill a mandatory duty under N.J.S.A. 9:6-8.10 to report Tyshkov’s misconduct to DCPP. Plaintiff subsequently filed another amended complaint, naming additional defendants. Gordina filed an answer, demanding plaintiff provide an affidavit of merit, and subsequently moved to dismiss, with prejudice, plaintiff’s claim against her based on plaintiff’s failure to provide an affidavit of merit.

N.J.S.A. 9:6-8.10 provides the long-standing standard for the reporting of suspected child abuse: “Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately” to the State. If reasonable cause exists to believe that child abuse has occurred, a statutory duty to report arises.

The New Jersey Appellate Court stated: “Thus, the standard of care under N.J.S.A. 9:6-8.10 is not specific to a profession; it applies to “all persons.” L.A., 217 N.J. at 330. And the failure to report under that standard of care is not an “act of . . . negligence . . . carried out by a licensed person in the course of practicing the person’s profession” but is
an act of negligence for failing to fulfill a duty that applies to all.”

The New Jersey Appellate Court held: “The judge erred in finding “a properly qualified medical expert” must “opine as to the standard of care applicable to Dr. Gordina with respect to her duty, if any, under N.J.S.A. 9:6-8.10″ and because of that purported need for an expert on a standard of care specific to Gordina, plaintiff was required to provide an affidavit of merit. Accordingly, we reverse the dismissal of the claim against Gordina based on the failure to provide an affidavit of merit and remand for proceedings consistent with this opinion.”

“We … do not express an opinion about other issues not raised in this appeal, including whether Gordina was required to report Tyshkov based on the standard set forth in N.J.S.A. 9:6-8.10, whether she had a duty to this plaintiff to report Tyshkov, what evidence would be required to prove she had a duty to this plaintiff to report him and failed in that duty, and whether any such failure proximately caused plaintiff damages.”

Source M.M. v. Atlantic Health System, Inc. Docket No. A-2218-22.

If you or a loved one were harmed as a result of sexual misconduct by a physician in New Jersey or in another U.S. state, you should find a New Jersey medical malpractice attorney, or a medical malpractice attorney in your U.S. state, who may investigate your physician sexual abuse claim for you and represent you or your loved one in a physician sexual misconduct case, if appropriate.

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