The pro se medical malpractice plaintiffs in a New Jersey medical malpractice case alleged that the defendant medical professionals deviated from the standard of care by failing to postpone surgery and obtain cardiac clearance given plaintiff’s pre-existing conditions, failing to conduct pertinent pre- and post-operative testing, and failing to provide proper discharge instructions. They argued that an Affidavit of Merit (AOM) was not necessary based on the common knowledge exception, which applies if the alleged conduct or failure to act, if accepted as true, would be readily recognizable, by a person of average intelligence, as a failure to exercise the appropriate standard of care.
The Superior Court of New Jersey Appellate Division stated in its November 15, 2024 decision: “We discern no error in the judge’s determination that such allegations of medical negligence are beyond common knowledge and understanding of a layperson and require expert testimony to explain the standard of care. We are satisfied the judge correctly determined that this case required an AOM and did not fall within the common knowledge exception. A fact finder will need to know why the surgery should have been postponed and whether each of the doctors fell below a recognized standard of care in not postponing the surgery. A fact finder would need that same information concerning the claims regarding the pre- and post-operative testing and the discharge instructions. None of those medical issues are within the common knowledge of a lay person.”
Despite arguing that an AOM was not necessary in their case, the pro se plaintiffs nonetheless submitted an AOM from Monique S. Monroe, Registered Nurse, signed and notarized but not submitted under oath. The New Jersey appellate court stated with regard to the plaintiffs’ AOM: “The judge correctly found that Nurse Monroe’s AOM failed to satisfy the statute. She was not qualified to opine on the standard of care for those defendants who are licensed physicians: Dr. Brener, a licensed physician who specializes in cardiovascular surgery; Dr. Chiu, a licensed anesthesiologist; and Dr. Dick, a licensed physician who specializes in surgery. Further, Nurse Monroe provides no basis upon which she is qualified to opine on the standard of care as to the hospital and its staff. We conclude that the judge properly found the AOM deficient and dismissed plaintiffs’ complaint with prejudice for failing to state a claim.”
Source Pennix v. Newark Beth Israel Medical Center, Docket No. A-0323-23.
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