In an unpublished opinion filed on June 26, 2017, the Superior Court of New Jersey Appellate Division (“Appellate Court”) held that the plaintiff’s complaint against the defendant nursing home involving the injuries he suffered as a result of his fall while being transferred from his wheelchair was based on ordinary negligence.
The Appellate Court stated: “[a]lthough the incident occurred at a licensed healthcare facility, [the plaintiff’s] complaint alleges that the proximate cause of his injury was ordinary negligence, and not the breach of a professional or occupational standard of care. Based upon the pleadings, it is not clear how [the plaintiff] fell, or who was assisting him when he fell, but an AOM [affidavit of merit] is not required under N.J.S.A. 2A:53A-27 for a claim of ordinary negligence.”
The 440-pound plaintiff was a patient at the defendant’s rehabilitation and long-term care facility on September 3, 2013 when he fell to the floor and was injured when he was lifted out of his wheelchair. The plaintiff subsequently filed a personal injury claim against the defendant in which he did not specify who lifted him from the wheelchair, but alleged that his fall was “due to inadequate assistance getting out of the wheelchair” as a result of the defendant’s “recklessness, carelessness, and/or negligence.”
The defendant filed a motion to dismiss the plaintiff’s complaint with prejudice pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, arguing that the plaintiff failed to satisfy N.J.S.A. 2A:53A-26 by failing to file an AOM identifying the standard of care that the defendant breached in causing his injury. The trial court granted the defendant’s motion to dismiss, and the plaintiff appealed.
N.J.S.A. 2A:53A-27 states: “In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.”
Common Knowledge Doctrine
However, an affidavit of merit is not required in a case where the ‘common knowledge’ doctrine applies and obviates the need for expert testimony to establish a deviation from the professional’s standard of care. The common knowledge doctrine applies where jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts. Therefore, in certain instances, plaintiffs are not required to provide an AOM, even though licensed medical facilities are involved, because jurors are competent to assess simple negligence occurring in a hospital without expert testimony to establish the standard of ordinary care, as in other negligence cases.
The Appellate Court stated, “we conclude that dismissal of [the plaintiff’s] complaint based upon the pleadings for failure to provide an AOM was misguided. The motion judge seemed to limit [the plaintiff’s] claim to one for professional or occupational malpractice, but that was not the cause of action he pled. Although the incident occurred at a licensed healthcare facility, [the plaintiff’s] complaint alleges that the proximate cause of his injury was ordinary negligence, and not the breach of a professional or occupational standard of care. Based upon the pleadings, it is not clear how [the plaintiff] fell, or who was assisting him when he fell, but an AOM is not required under N.J.S.A. 2A:53A-27 for a claim of ordinary negligence. We express no opinion on the merits of [the plaintiff’s] negligence claim, but conclude it is necessary that he be allowed to develop facts through discovery so that the trial court will have a record to determine any future motions.”
Source Blake v. Alaris Health At Essex, Docket No. A-1254-15T1
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in New Jersey or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home understaffing, or resident on resident abuse, you should promptly contact a local nursing home claim attorney in your U.S. state who may investigate your nursing home claim for you and file a nursing home claim on your behalf, if appropriate.
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