Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a licensed professional must produce an affidavit from an expert attesting to the merits of the claim. Issues regarding the expert affidavit — the Affidavit of Merit (AOM) — are to be resolved at an accelerated case management conference conducted by the trial court in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003), otherwise known as a Ferreira conference. The New Jersey Supreme Court stated in its decision filed on July 11, 2024 that the issue before it was whether the trial court properly found, without holding a Ferreira conference, that the AOM submitted by plaintiff Candace Moschella was insufficient.
Background Facts
On July 20, 2018, plaintiff’s daughter, Alexandrianna Lowe, who suffered from an opioid addiction, was admitted to Hackensack Meridian Jersey Shore University Medical Center (JSUMC) for complications associated with Type 1 diabetes. Two days later, Lowe was found unresponsive. Hospital staff administered anti-opioid medication but failed to check Lowe’s blood sugar levels. An autopsy revealed Lowe had no illicit drugs in her system at the time of her death.
Plaintiff filed a complaint against JSUMC, Michael Carson, M.D., and John and Jane Does 1 through 100. At the time of the complaint’s filing, plaintiff had not yet been appointed administratrix ad prosequendum of her daughter’s estate, so she did not have access to Lowe’s medical records.
Defendants moved to dismiss Dr. Carson because he did not participate in any of the events that led to Lowe’s death. The motion included an affidavit identifying Dr. Vikas Singh as the attending physician at the time of Lowe’s death and two pages of Lowe’s medical records. The court granted defendants’ motion.
Plaintiff submitted an AOM prepared by Dr. Joseph Fallon that stated Fallon was “Board Certified in Internal Medicine, as was . . . Dr. Michael P. Carson and at least one of the John and Jane Doe [d]efendants sued therein (now known to be Dr. Vikas Singh, the physician in charge of the efforts to resuscitate [Lowe]).”
Defendants argued that the Fallon AOM was insufficient because it failed to name the surviving defendants in the action; did not state that Dr. Fallon was a “similarly licensed physician” as contemplated by the AOM statute; and failed to state that Dr. Fallon reviewed Lowe’s medical records. Without a Ferriera conference, the trial court dismissed plaintiff’s complaint with prejudice for failure to submit a sufficient AOM. The Appellate Division affirmed. The New Jersey Supreme Court granted certification.
The New Jersey Supreme Court stated in its July 11, 2024 decision: “We hold that the Fallon AOM complied with N.J.S.A. 2A:53A-27. First, an AOM does not need to specify that the affiant reviewed medical records. Second, a doctor to whom the affidavit attributed negligence is the agent of a named defendant and is identified in the AOM as one of the John or Jane Doe defendants included in the complaint. We therefore reverse the judgment of the Appellate Division and remand the matter for further proceedings. We stress once again the importance of the Ferreira conference in professional negligence actions.”
Source Candace A. Moschella v. Hackensack Meridian Jersey Shore University Medical Center (A-7-23) (088312)
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