In its opinion filed on April 12, 2022, the New Jersey Supreme Court stated: “The Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29, requires a plaintiff bringing a malpractice or a negligence claim against a “licensed person” to submit an AOM by an appropriately licensed person stating that there is a reasonable probability that the claim is meritorious. In this appeal, we consider whether a plaintiff must submit an AOM in support of a vicarious liability claim against a licensed entity, based on the alleged negligent conduct of an employee who is not a “licensed person” under the AOM statute. We conclude that, under the facts of this case, a plaintiff has no such obligation.”
In February 2018, following surgery on his left shoulder, plaintiff Troy Haviland presented to Lourdes Medical Center for a radiological examination. Plaintiff alleged that during the examination, an unidentified radiology technician asked plaintiff to “hold weights contrary to the [ordering physician’s] instructions.” While holding the weights, plaintiff sustained an injury to his newly repaired left shoulder, requiring a surgical procedure two months later.
Plaintiff brought a claim against defendant Lourdes Medical Center of Burlington County, Inc., alleging that an unnamed radiology technician employed by defendant negligently performed his radiological imaging examination, causing serious injuries. Defendant’s answer denied the allegations in plaintiff’s complaint and further contended that, because defendant is “a healthcare facility as defined in [N.J.S.A. 26:2H-2],” plaintiff was required to produce an AOM. At a conference, plaintiff advised the court that he was proceeding against defendant solely on a theory of vicarious liability for the conduct of an unlicensed employee, and that an AOM was therefore unnecessary.
The AOM statute explicitly limits the term “licensed person” to an accountant; an architect; an attorney admitted to practice law in New Jersey; a dentist; an engineer; a physician in the practice of medicine or surgery; a podiatrist; a chiropractor; a registered professional nurse; a physical therapist; a land surveyor; a registered pharmacist; a veterinarian; an insurance producer; a certified midwife, certified professional midwife, or certified nurse midwife; a licensed site remediation professional; and “a health care facility as defined in [N.J.S.A. 26:2H-2].” N.J.S.A. 2A:53A-26. N.J.S.A. 26:2H-2(a), in turn, defines “health care facility” as a “facility or institution, whether public or private, that is engaged principally in providing services for health maintenance organizations, diagnosis, or treatment of human disease, pain, injury, deformity, or physical condition, including, but not limited to, a general hospital.”
The New Jersey Supreme Court held: “the AOM statute does not require submission of an AOM to support a vicarious liability claim against a licensed health care facility based only on the conduct of its non-licensed employee. Plaintiff’s vicarious liability claim does not implicate Lourdes Medical Center’s standard of care and therefore falls outside the intended scope of the AOM statute. Accordingly, we remand to the trial court for further proceedings.”
Source Troy Haviland v. Lourdes Medical Center of Burlington County, Inc., A-70-20.
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