In Brugaletta v. Garcia, 234 N.J. 225 (2018) the plaintiff was diagnosed with necrotizing fasciitis. During her lengthy hospitalization, the plaintiff’s doctor recorded in the 4,500-page medical record that the plaintiff missed doses of antibiotics but the plaintiff was not informed of that fact. A PSA investigation was commenced which ultimately led to the defendant hospital determining that there was no serious preventable adverse event. The Supreme Court, balancing the interests of the patient against the hospital’s right to safeguard PSA investigatory material in a very narrow fact pattern, compelled the defendant hospital to provide a “narrative summary” to “steer” plaintiff to the information in the chart that identified an adverse incident, citing its common law rights to compel the narrative summary as well as citing N.J.A.C. 8:43-15.2(e) and N.J.S.A. 26-2H-12.8(c) to support its decision to compel the “narrative summary”.
In ABC Patient v. DEF Hospital, the plaintiff sought to compel the hospital to provide a narrative summary of Patient Safety Act documents that were created during a Patient Safety Act investigation. Clare & Scott argued that the ABC case was very distinguishable from Brugaletta in that, in Brugaletta, there was evidence in the plaintiff’s medical chart of a deviation from the standard of care in the form of missed doses of antibiotics. Also, the physician’s interconnected entries in the 4,500-page chart were “buried” which would not have alerted the plaintiff of the adverse incident. In ABC, there were no entries in the mother’s labor and delivery record (which consists of only about 250 pages, along with the fetal monitoring strips) that could be construed as evidence of deviations from the standard of care by the defendant healthcare providers or that an “adverse incident” occurred. Clare & Scott also argued that the Supreme Court in Brugaletta did not hold that every time a Patient Safety Committee conducted an investigation the court is required to conduct an in camera review and require that a “narrative summary” of the PSA documents be provided by the defendant.
The Court denied plaintiff’s motion to compel the hospital to provide a narrative summary of the hospital’s Patient Safety Committee’s investigation and documents. The basis for the court’s decision is that the hospital provided proof that the 7 pages of its Patient Safety Committee documents were created in the context of a Patient Safety Act investigation which, under the Patient Safety Act statute and the New Jersey Supreme Court’s decision in C.A. ex re. Applegrad v. Bentolila, 219 N.J. 449 (2014), are absolutely privileged and protected from discovery. The court also accepted Clare & Scott’s argument that Brugaletta does not amount to a per se rule requiring hospitals to submit a narrative summary in each and every case in which a hospital conducts a Patient Safety Act investigation.
The Court’s order in ABC v. DEF Hospital is an important ruling for New Jersey hospitals as it can be argued in future similar motions filed by plaintiffs that “narrative summaries” of Patient Safety Committee materials are not required, thus upholding the public interest in preserving the confidentiality of documents created by a Patient Safety Committee.When defending licensed healthcare facilities, it is critical to scrutinize the Affidavit of Merit and, where appropriate, challenge the sufficiency of the Affidavit of Merit to potentially limit the vicarious liability exposure of the licensed healthcare facility.
In John Doe v. ABC Hospital , plaintiffs’ expert included in her Affidavit of Merit a “catchall” paragraph criticizing (but without naming) “other healthcare practitioners”. Plaintiffs later served an expert report that included opinions against two nurses, one of whom had never been named as a defendant and a second nurse who had been a defendant, but was later dismissed from the suit on statute of limitations grounds. Plaintiffs never served an Affidavit of Merit with respect to either nurse now the subject of criticism in the expert report.
Clare & Scott argued that the Affidavit of Merit statute imposes an obligation upon plaintiffs to serve upon the hospital an Affidavit of Merit that substantiates the basis for any and all “vicarious liability” claims asserted. Further, the statute requires that plaintiffs identify the licensed professionals who allegedly committed the negligent acts or omissions that form the basis of the vicarious liability claims. Lastly, it was argued by the defendant hospital that the failure of the plaintiffs to serve an Affidavit of Merit on the hospital that specifically included the nurses constituted a failure to state a claim against the hospital, mandating an order barring such vicarious liability claims.
The Court accepted Clare & Scott’s argument that, as a matter of law, plaintiffs were obligated to serve upon the hospital an Affidavit of Merit specifically identifying the deviations from the standard of care as well as identifying the specific hospital employees if plaintiffs intended to pursue vicarious liability claims against the hospital based upon the act(s) or omissions of the unnamed nurses.
Clare & Scott also argued that plaintiffs had a statutory mechanism in place if the hospital chart signatures were illegible and/or other information was needed to comply with the Affidavit of Merit statute. Having failed to avail themselves of the relief afforded under N.J.S.A. 2A:53A-28, the plaintiffs were precluded from arguing that they were relieved of providing a compliant Affidavit of Merit as to the hospital by relying upon that statutory provision.
The decision prevents plaintiffs from circumventing the requirements of the Affidavit of Merit by contending they were pursuing only vicarious liability claims against the healthcare facility, because the nurses were the de facto defendants. The law requires that where vicarious liability claims are pursued against a licensed healthcare facility, the facility must be provided with an Affidavit of Merit identifying the specific act(s) of negligence of a specific agent, servant or employee. The failure to provide the Affidavit of Merit is tantamount to the failure to state a claim.
Clare & Scott, LLC focuses its practice on the defense of negligence claims against hospitals, physicians and other medical professionals and the representation of medical professionals in New Jersey Board matters.
JANE DOE v. ABC HOSPITAL
Clare & Scott, LLC
recently secured summary judgment on
behalf of a defendant hospital in a surgical burn case. The plaintiff,
who was undergoing a hysterectomy, sustained a third degree burn on her thigh
from a surgical cautery device. The plaintiff sued the surgeon, two
residents and the hospital, alleging negligence against all parties under the
doctrine of res ipsa loquitur.
The plaintiff abandoned the prosecution
of the case against the two residents and settled with the defendant surgeon
shortly before trial. The hospital then filed a motion for summary
judgment asserting that the plaintiff failed to serve an expert report that
addressed the hospital’s negligent maintenance of the cautery device and that
the plaintiff could not prove the necessary element of “exclusive control” in a res ipsa loquitur
case. Plaintiff opposed the motion, arguing that
the settling defendant could offer an opinion on the cause of the plaintiff’s
burn under the seminal case of Stigliano v. Connaught Laboratories,
Inc.,
140 N.J. 305 (1995) and that “exclusive control” could be established
because the settling defendant would be a witness at trial.
The trial court accepted the defendant hospital’s arguments that a product liability expert report was required in this case because the defendant surgeon was not qualified to offer an opinion on whether the hospital’s maintenance of the cautery device was proper. Further, the court ruled that the plaintiff’s abandonment of the case against the two residents was fatal to the application of the doctrine of res ipsa loquitur because the residents, who had potential control over the cautery device in the operating room, were not defendants in the case.
This case highlights the court’s reaffirmance of the need for expert testimony in medical device cases and that, before the court will allow a case to proceed on a res ipsa loquitur theory of liability, all parties who could have had control over the medical device at the time of the injury must be defendants in the case and present during trial.
For those living in the northeast, it means dealing with snow and ice during the winter season. For businesses operating in the northeast and their insurers, it likely means you will soon have a lot of new claims alleging people fell on ice and snow. But, a recent decision out of the New Jersey Appellate Division reminds us that the law, unlike winter, is not unabating.
While commercial property owners have a duty to use reasonable care to see to it that the sidewalks abutting the property are in a reasonably safe condition including being free of ice and snow, that duty does not require sidewalks to always be free of ice and snow. In Quiles v. Hector , the New Jersey Appellate Division breathed new life into the “storm in progress” defense.
Whether a person owes a duty of reasonable care will be determined by whether the imposition of a duty satisfies an “abiding sense of basic fairness” under the circumstances. See Hopkins v. Fox & Lazo Realtors , 132 N.J. 426 (1993). Among the factors to be considered are: (1) the relationship of the parties, (2) the nature of the attendant risk, (3) the opportunity and ability to exercise care, and (4) the public interest in the proposed solution. Under the storm in progress defense, there is no duty to act in the midst of ongoing storm event. A property owner is only obligated to act to remove snow and ice within a reasonable period of time after a storm event ends. The rationale behind this defense recognizes that a storm is an uncontrollable force and a property owner does not need to undertake measures that are impractical, if not impossible. New Jersey has thus balanced competing public interests, in affording property owners a reasonable period of time after conclusion of a storm to remove ice and snow.
The Quiles decision, although an unpublished decision and thus not precedential, is the most recent decision to relieve a property owner of the duty to protect against ice and snow. In Jimenez v. Maisch , 329 N.J. Super. 398 (App. Div. 2000), a postal worker slipped and fell in a snow covered driveway after a storm event that dumped more than 20 inches of snow on the region. Applying a Hopkins analysis, the court considered the following facts: there been a very severe snow storm resulting in a state of emergency that was still in effect when plaintiff fell, the risk of falling was obvious to plaintiff, and it questioned the burden placed upon the property owner if the court were to impose a duty. After weighing all these factors in light of considerations of public policy and fairness, it determined that the property owner had no duty to clear snow and ice from his driveway and/or walkway. In Holmes v. INCAA-Carroll Street Holmes Corp. , another unpublished Appellate Division decision, a tenant fell coming out of the door to her apartment complex during a storm event. The court held that the defendant had no duty to act in the midst of an ongoing snow storm.
While the “storm in progress” doctrine is not yet as widely recognized and developed in New Jersey case law as it is in some sister states, e.g. New York, the doctrine is nevertheless re-emerging as a viable defense that property owners and their insurers should avail themselves of when confronted with a slip and fall case.
Clare & Scott, LLC serves the insurance industry and focuses its practice on the defense of personal injury claims.
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-27, requires that a plaintiff in a professional malpractice action serve an affidavit of merit within sixty days of the filing of defendant's answer. Specifically, it provides:
“In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, 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. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.”
N.J.S.A. 2A:53A-26 defines "licensed person" to include physicians, podiatrists, chiropractors, registered professional nurse practitioners, physical therapists, dentists, healthcare facilities and many other professionals. With respect to healthcare facilities, “Healthcare facility" includes, but is not limited to a general hospital, special hospital, skilled nursing home, and nursing home. N.J.S.A. 26:2H-2. By designating different entities that provide services for the diagnosis or treatment of human disease, pain, injury, deformity or physical conditions, the Legislature recognized differences among those diverse entities. This is important because, in the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in N.J.S.A. 2A:53A-41. In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.
The Affidavit of Merit imposes upon a plaintiff the obligation to, early on, make a “threshold showing” that a malpractice claim has merit. See In re Petition of Hall , 147 N.J. 379 (1997). The Legislature intended to impose this obligation to weed-out frivolous lawsuits. See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998). Those recognized public policies cannot be served if a plaintiff is permitted to utilize a general or blanket affidavit to cover specialized licensed persons.
The failure to provide the affidavit is “deemed a failure to state a cause of action”. Affidavits should be challenged in an effort to weed out meritless claims.
Despite these long-recognized public and statutory policy principles, courts have increasingly created exceptions to the statute to avoid “an inflexible application of the statute”. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. at 151 (acknowledging applicability of doctrine of substantial compliance and extraordinary circumstances). See also Galik v. Clara Maass Medical Center , 167 N.J. 341 (2001) (lack of prejudice to the defendant professionals constituted sufficient “substantial compliance”).
Plaintiffs frequently assert direct causes of action against “licensed” healthcare facilities as defined under the Affidavit of Merit Statute. Scrutiny of the qualifications of the affiant of the Affidavit of Merit against the healthcare facility is required in all cases. Many attorneys and judges incorrectly assume that the affiant’s clinical practice automatically qualifies him/her to author an Affidavit of Merit against a healthcare facility.
Clare & Scott, LLC recently challenged the sufficiency of an Affidavit of Merit authored by a registered nurse in a pressure ulcer case. The affiant offered opinions in the Affidavit of Merit against both the defendant nurses and the defendant healthcare facility. The affiant had not cumulatively worked in a hospital setting for at least five years (despite a 25+ year career as a clinical provider) and had never held any hospital administrative positions. There is no reported decision on this issue. Clare & Scott successfully argued that the affiant’s non-hospital nursing experience did not satisfy the requirements of having “particular expertise in the general area or specialty involved” and that she had not devoted a substantial portion of her practice for a period of at least five years to healthcare facilities. In its written decision, the Law Division held that the affiant lacked the necessary qualifications under the Affidavit of Merit Statute with respect to direct causes of action against the healthcare facility. The court also ruled that the plaintiff was required to secure an Affidavit of Merit from an appropriately licensed person relative to hospital administration.
The court’s decision requiring an affiant who was critical of a healthcare facility to have “healthcare facility qualifications” advances the laudatory purposes of the Affidavit of Merit Statute. Challenging the qualifications of an affiant who has authored an Affidavit of Merit against a healthcare facility has several salutary purposes as a successful motion may: (1) dispose of direct claims against a healthcare facility (2) limit claims against a healthcare facility to vicarious liability only, (3) redirect the focus of a plaintiff’s case away from the healthcare facility, and (4) minimize expenses a healthcare facility may incur in discovery and other pretrial proceedings.
Clare & Scott, LLC focuses its practice on the defense of negligence claims against hospitals, physicians and other medical professionals.
