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.
Plaintiff, a minor, alleged that between February 2006 and June 2009, she was sexually assaulted in a school bus owned and operated by a bus company with which the Board of Education ("BOE") contracted to service its students. Specifically, plaintiff alleged that the driver, an employee of the bus company, did “coerce, compel, force and engage" plaintiff in various sexual acts contrary to N.J.S.A. 2A:61B-1 and did sexually assault plaintiff in violation of certain federal and state statutes. It was further alleged that these acts violated plaintiff's federal and state Civil Rights and otherwise discriminated against her.
Clare & Scott moved for summary judgment and secured an order dismissing the following claims: violation of the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1; Assault and Battery; Intentional Infliction of Emotion Distress; 42 U.S.C. 1983 claims; Law Against Discrimination; Common law bullying and violation of the Anti-Bullying Statute, N.J.S.A. 18A:37-15; Negligent hiring, supervision and retention; New Jersey Civil Rights Act; Invasion of Privacy; and Punitive Damages. The rulings substantially reduced the potential exposure for the BOE and completely eliminated the fee shifting claims asserted against the BOE.
Patrick Clare, Esq. and John R. Scott, Esq., citing to a recent unpublished decision issued by the Appellate Division in John Doe et al v. Hopewell Valley Regional School District Board of Education , ___ N.J. Super. ___ (A-0142-15T1 May 8, 2017), argued that "Sexual abuse" under the Act meant an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult standing in loco parentis within the household. Patrick Clare, arguing the case before the Court, forced plaintiff to concede that the BOE was not " in loco parentis within the household" and, in turn, the plaintiff abandoned this claim allowing the Court to dismiss this count of the complaint.
Clare & Scott argued that the BOE could not be held vicariously liable for the acts or omissions of the independent contractor defendant driver. At oral argument, Patrick Clare convinced the Court that the BOE’s conduct was too attenuated to impose liability upon it for alleged battery on plaintiff. Similarly, Mr. Clare convinced the Court that a sexual battery was an intentional act and, as such, the BOE could not be held liable for either the Battery or Intentional Infliction of Emotional Harm. Alternatively, even if liability existed as to the BOE as asserted by plaintiff, the BOE was immunized under the Tort Claims Act, N.J.S.A. 59:2-10.
The Court also accepted Clare & Scott's argument that any claim under 42 U.S.C. Title 1983, commonly known as a Monell claim, must be predicated on a widespread policy or practice adopted by the BOE. In this instance, discovery failed to identify any such policy or practice. Mr. Clare's exacting discovery and work with the BOE to establish Board policies and practices created an irrefutable record that allowed the court to summarily dismiss this fee shifting claim.
Clare & Scott also successfully argued that the New Jersey Law Against Discrimination claim must be dismissed because plaintiff could not prove gender harassment or that she was bullied. Clare & Scott successfully established that there was no admissible evidence to sustain a claim for age, familial, status, or gender discrimination as required under the statute. Similarly, the NJ Civil Rights Act claims were dismissed because Clare & Scott successfully argued that the plaintiff did not fall within a protected classification. And finally, Clare & Scott secured a dismissal of the statutory and common law bullying claims as plaintiff failed to identify any fact that would support an argument that the school had direct or indirect knowledge that the plaintiff was being bullied. Thorough and exacting discovery conducted by Clare & Scot t on behalf of the BOE created the record that allowed these claims to be summarily dismissed.
Lastly, the negligent hiring and supervision claims were dismissed because Clare & Scott successfully established that the bus driver was an independent contractor and, as a matter of law, respondeat superior could not apply under the Tort Claims Act or under any common law. Once this ruling was made by the court, Clare & Scott successfully argued that the Invasion of Privacy claim could not be sustained because the BOE could not be vicariously liable for the Invasion of Privacy by an independent contractor.
The lesson learned from this case is that a school’s policies and procedures, school employee training and education history and school curriculum must be produced in discovery (even if same is not demanded by the plaintiff) to create an adequate record upon which a motion or trial judge can dismiss civil rights, LAD and bullying claims asserted against a school district.
Clare & Scott, LLC serves the insurance industry and focuses its practice on the defense of personal injury claims.
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.
