New Jersey’s Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, requires plaintiffs alleging medical malpractice against a licensed professional to include an affidavit from a medical expert in their filing. The affidavit must provide that there exists a reasonable probability the standard of care exercised in the alleged malpractice fell outside the acceptable professional or occupational standards.
The primary purpose of the New Jersey Affidavit of Merit Statute is to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily can be identified at an early stage of litigation. In enacting the statute, the New Jersey Legislature was not concerned with a plaintiff’s ability to prove the allegation contained in his or her complaint, but rather with whether there is some objective threshold merit to the allegations.
On its face, the Affidavit of Merit Statute applies to any action involving professional malpractice, and no exception is made for common knowledge cases. “In the exceptionally rare cases in which the common knowledge exception applies, however, an expert is not needed to demonstrate that a defendant professional breached some duty of care “where the carelessness of the defendant is readily apparent to anyone of average intelligence.”” The common knowledge exception applies for cases in which 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 issue before the New Jersey Supreme Court in the appeal it decided on May 4, 2020 was whether the failure to act when a patient dislodges her nasogastric tube (a tube that passes through the nose into the stomach to deliver medicine, liquids, and liquid food to a patient, commonly referred to as a “NG tube”) and refuses its reinsertion would fall within the jury’s common knowledge as a departure from the acceptable standards (the New Jersey medical malpractice plaintiffs alleged that the defendants failed to take action after the NG tube properly inserted in accordance with a physician’s order was dislodged).
The New Jersey Supreme Court held: “The common knowledge exception to the Affidavit of Merit Statute applies only when expert testimony is not required to prove a professional defendant’s negligence. Thus, in the limited cases where a person of reasonable intelligence can use common knowledge to determine that there was a deviation from a standard of care, an expert is no more qualified to attest to the merit of a plaintiff’s malpractice practice claim than a non-expert. This is not one of those cases. Here, where a patient removed the tube herself and refused replacement, important questions about the procedures, protocols, and duties of a licensed nurse in these circumstances must be explained in order to establish a deviation in the standard of care. In addition, important considerations about patient autonomy complicate the standard-of-care analysis. A jury could not reach a determination as to a nurse’s responsibility under these circumstances without the benefit of expert opinion as to the appropriate balance between patient autonomy and prescribed treatment. An affidavit of merit was therefore required, and we accordingly reverse the judgment of the Appellate Division.”
Source Linda Cowley v. Virtua Health System, A-47-18.
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