Hargett v. Hamilton Park OPCO, LLC, et al., No. A-2036-22, 2023 WL 8533057 (N.J. App. Div. Dec. 11, 2023) (approved for publication)

The trial court dismissed the plaintiff’s complaint with prejudice for failure to provide an appropriate affidavit of merit (AOM) pursuant to N.J.S.A. 2A:53A-26 to -29. The plaintiff served a single AOM on behalf of all claims against the defendants: Alaris Health, Jersey City Medical Center, and the nursing and administrative staffs at both facilities. The AOM alleged collective negligence by multiple, unidentifiable nurses, but it failed to identify any individually negligent persons or acts. The plaintiff appealed the trial court’s dismissal of her complaint. On appeal, the appellant argued that she was not required to serve an AOM that identified individual nurses because the case—involving a pressure injury—was not premised upon isolated acts of negligence but, rather, was due to the negligence of the nursing staff as a whole.

In its opinion, the Appellate Division recounted the general rules that: (1) the submission of an appropriate AOM is an element of a professional malpractice claim (Meehan v. Antonellis, 226 N.J. 216, 228 (2016)); (2) failure to provide an AOM is deemed a failure to state a cause of action (N.J.S.A. 2A:53A-29); and (3) an AOM is required when the plaintiff’s claim of vicarious liability hinges upon allegations of deviation from professional standards of care by licensed individuals who worked for the named defendant (Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc., 250 N.J. 368, 381 (2022)). Generally, the court noted, an AOM should identify the licensed person who allegedly deviated from the acceptable standard of care (Medeiros v. O’Donnell & Naccarto, Inc., 347 N.J. Super. 536, 542 (App. Div. 2002)). Thus, the Appellate Division held that it must at least be possible to identify, by the description within the AOM, the licensed person or entity alleged to have deviated from the applicable standard of care.

Because it was not possible to identify any individual nurses who were negligent, and combined generally the nursing staffs of both facilities, the Appellate Division found the appellant’s AOM to be insufficient and affirmed the trial court’s decision dismissing the complaint.