New Jersey Affidavit of Merit Statute Applied to Nursing Case Despite “Common Knowledge” Claim

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The Supreme Court of New Jersey unanimously held in Linda Cowley v. Virtua Health System (A-47-18) (081891) that the “common knowledge” exception of the Affidavit of Merit Statute applies only when a simple negligence standard is at issue, and does not apply when a specific standard of care must be evaluated.  In this case involving if and how to reinsert a removed nasogastric tube, the Court reversed the judgement of the Appellate Division and dismissed the plaintiff’s complaint with prejudice because she failed to submit an affidavit of merit within the time required by the Affidavit of Merit Statute.

Enacted in 1995, the Affidavit of Merit Statute requires that plaintiffs in medical malpractice cases “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.” N.J.S.A. 2A:53A-27. The statute’s primary purpose “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.” Cornblatt v. Barow, 153 N.J. 218, 242 (1998). Failure to provide an affidavit or its legal equivalent is “deemed a failure to state a cause of action,” N.J.S.A. 2A:53A-29, requiring dismissal with prejudice.

An exception to this rule is the judicially-created “common knowledge” exception which provides that 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.” Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). In those exceptional circumstances, the “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.” Hubbard v.  Reed, 168 N.J. 387, 394 (2001). Thus, a plaintiff in a malpractice case is exempt, under the common knowledge exception, from compliance with the affidavit of merit requirement where it is apparent that “the issue of negligence is not related to technical matters peculiarly within the knowledge of [the licensed] practitioner[].” Sanzari v.  Rosenfeld, 34 N.J. 128, 142 (1961).

In Cowley, the plaintiff was diagnosed with gallstones and other medical conditions that required surgery. After the operation, a physician entered an order directing nursing staff to insert a nasogastric tube, a tube that passes through the nose into the stomach to deliver medicine, liquids, and liquid food to a patient. According to the hospital’s records, Cowley removed her nasogastric tube overnight and refused to allow it to be replaced.  Cowley and her husband sued Virtua and others, alleging defendants did not comply with the written order to insert the tube, causing post-operative complications.

Plaintiffs did not file an affidavit of merit, and argued that they were not required to do so because the alleged malpractice was an issue of “common knowledge.” The trial court held that an affidavit was required because a jury needed to determine the standard of care, including procedures and protocols, for nursing staff when a competent adult refuses medical treatment. The Appellate Division reversed the trial court and held that the case involved “an alleged obvious act of omission.” Therefore, according to the Appellate Division, a layperson was capable of judging whether the nursing staff’s failure to contact the physician who ordered the tube insertion was a meritorious claim.

The Supreme Court began its analysis with the purpose of the Statute: to establish a “threshold” of merit and weed out non-meritorious claims. It emphasized that the common knowledge exception applies only when “jurors are competent to assess simple negligence occurring . . . without expert testimony to establish the standard of ordinary care.” Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 292 (App. Div. 1995). This case, however, involved a multi-disciplinary medical team providing care to a hospitalized patient. The Court found that to properly assess a deviation in the standard of care in this setting, one must know the procedures, protocols, and scope of duties of the licensed professional nurses in such circumstances. An expert is required to explain those standards.

The Supreme Court reasoned that if the Appellate Division ruling was permitted to stand, jurors would be required to speculate that “some sort” of action should have been taken by the nursing staff, instead of determining what specific action was required in order to comply with the standard of care. In addition, because a competent adult is permitted to refuse treatment under New Jersey law, medical professionals are forced to balance patient autonomy and their role in providing adequate care. Therefore, the plaintiff should have submitted an affidavit and subsequent expert testimony to inform the jury of the specific procedures a nurse is required to take when a patient refuses nasogastric tube replacement. Contrary to the Appellate Division’s reasoning, the issue for the jury was not whether a nurse may ignore a physician’s order, but rather what steps are required of a nurse when a patient refuses reinsertion of a nasogastric tube after its removal. This issue required expert analysis, and therefore the Court dismissed the complaint with prejudice.

This case is important beyond its relationship to medical malpractice.  For example, it should remind those charged with quality assurance and employee supervision at medical facilities that professional judgments, and standards and procedures for reviewing them, remain important supportive mechanisms for the professional you employ as well as bulwarks against tort liability.  It is also a useful example of the Supreme Court’s process as it examines the lower courts’ implementation of a judicially-created exception to a statutory requirement. Starting with the legislative purpose of the statute, the Court examined both legal precedent and the policy implications of the lower court’s decision, ultimately determining that the common knowledge exception must remain “exceptionally rare.”


The authors represented amicus curiae New Jersey Doctor-Patient Alliance in this matter.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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