The Supreme Court of New Jersey recently addressed whether under the affidavit of merit (“AOM”) statute N.J.S.A. 2A:53A-26 to – 29, a plaintiff must submit an affidavit of merit in support of a vicarious liability claim against a health care facility based on the negligent conduct of a non-licensed employee. Haviland v. Lourdes Med. Ctr. of Burlington Cty., 2022 N.J. LEXIS 309 (Apr. 12, 2022). Ultimately, the Court held that the AOM statute does not require an AOM in a case where a plaintiff asserts only vicarious liability against a healthcare facility for the negligent acts of its non-licensed agents or employees. Id. at *25.
The AOM statute requires plaintiffs in professional negligence actions by a licensed person in their profession, to submit an affidavit from a licensed professional attesting to the merits of the plaintiff’s claims. Id. at *14-15. The statute goes on to explicitly limit the term “licensed person” to sixteen professions and “a healthcare facility.” Id., N.J.S.A. 2A:53A-26.
In Haviland, Plaintiff presented to the Lourdes Medical Center for a radiological examination following surgery on his left shoulder. Id. at *9. According to Plaintiff, during the examination an unidentified radiology technician (“John Doe”) asked him to hold weights, which was contrary to the physician’s instructions. Id. Holding the weights caused Plaintiff to sustain an injury to his newly repaired left shoulder. Id. The new injury required a surgical procedure two months later. Id. A year later Plaintiff filed a complaint alleging that John Doe and Lourdes Medical Center were careless, negligent, and “deviated from accepted standards of medical care.” Id. at *9-10. In its Answer, Defendant contended that since it was a healthcare facility, Plaintiff was required to submit an AOM. Id. The trial court notified Plaintiff that it needed to produce an AOM, however Plaintiff advised the court that since it was proceeding against Defendant solely on a vicarious liability theory, an AOM was not required. Id. Defendant filed a motion to dismiss for failure to submit an AOM, which the judge granted. Id. at *10-11. Plaintiff appealed this decision and the Appellate Division reversed the trial court’s decision, finding that an AOM was not required under the circumstances presented. Id. at *11.
The New Jersey Supreme Court affirmed the Appellate Division’s decision and found that the AOM statute does not require plaintiffs to submit an AOM in cases where the plaintiff only asserts vicarious liability against a healthcare facility for the negligent acts of non-licensed employees. Id. at *25. In arriving at its decision, the Court looked at previous decisions from the Appellate Division which, when dealing with similar legal questions, focused “on the nature of the underlying conduct responsible for the plaintiff’s injuries.” Haviland v. Lourdes Med. Ctr. Of Burlington Cty., 2022 N.J. LEXIS at *24-25. Additionally, the Court sought to stay consistent with the statute’s legislative history by pointing out that during the initial drafting process the professions listed under the bill were only nine, then it was amended three times to expand the definition of “licensed person,” yet it never included “radiology technician” as one of them. Id. at *25. The Court also noted that Plaintiff does not dispute that had he raised direct claims against the hospital for negligent hiring, training, or supervision of the non-licensed employee, he would have been required to submit an AOM under the AOM statute. Id. at *25-26.