MARY MALONEY v. HACKENSACK UNIVERSITY MEDICAL CENTER MELISSA STATILE JOELLE BARON (2013)

Plaintiff appeals from the September 5, 2012 order of the Law Division dismissing her complaint with prejudice.   Plaintiff alleged negligence and intentional torts during a hospital admission in April 2011.   We affirm.

On April 1, 2011, plaintiff was admitted to Hackensack University Medical Center (HUMC) where she underwent an emergency surgical procedure.   She was discharged on the following day, but developed complications from an infection and was re-admitted to HUMC on April 8, 2011, remaining there until April 11, 2011.

Plaintiff's hospital records indicate that on April 9, 2011, restraints were placed on her for her safety and assistance.   On April 11, 2011, plaintiff's chart indicates that she signed herself out of HUMC against medical advice.

On July 29, 2011, plaintiff filed a complaint naming HUMC and two members of its nursing staff as defendants.   Plaintiff claims that during her second hospitalization, defendants restrained her against her will;  subjected her to battery and unlawful touching;  negligently and intentionally caused her emotional and physical distress;  invaded her privacy;  disclosed information about her without consent;  and engaged in libel, slander, defamation and the tort of outrage.   Plaintiff sought punitive damages.

On July 6, 2012, defendants moved to dismiss for failure to provide an affidavit of merit.  N.J.S.A. 2A:53A–27.   After hearing oral argument, the trial court entered an order on September 5, 2012, dismissing plaintiff's complaint with prejudice for failure to comply with the affidavit of merit statute.   The order was accompanied by a written opinion.   On appeal, plaintiff presents the following arguments:

POINT I

THE LOWER COURT ERRED IN DETERMINING THAT PLAINTIFF–APPELLANT'S CAUSES OF ACTION SOUNDED IN MALPRACTICE.

POINT II

PLAINTIFF–APPELLANTS' NEGLIGENCE CAUSES OF ACTION DO NOT REQUIRE AN EXPERT AFFIDAVIT AS THE DEVIATIONS ARE SUCH THAT THEY CONSTITUTE EXCEPTIONS TO THIS REQUIREMENT UNDER THE COMMON KNOWLEDGE DOCTRINE.

POINT III

PLAINTIFF–APPELLANT MAY NOT ELICIT EXPERT TESTIMONY REGARDING STATUTORY VIOLATIONS THUS NEGATING THE NEED FOR EXPERT TESTIMONY ON THOSE CAUSES OF ACTION.

POINT IV

PLAINTIFF–APPELLANT SHOULD BE AWARDED COSTS AND APPROPRIATE SANCTIONS FOR DEFENDANTS–RESPONDENTS' BRINGING A MOTION AND FOR THIS APPEAL.

We have considered these points in light of the record and applicable legal principles.   We affirm substantially for the reasons expressed by Judge Philip H. Mizzone, Jr. in his cogent and well-reasoned written opinion.   We add only the following comments.

Whether a cause of action implicates the affidavit of merit statute is a legal conclusion, reviewed de novo.   See Triarsi v. BSC Group Servs., LLC, 422 N.J.Super. 104, 113 (App.Div.2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

N.J.S.A. 2A:53A–27 requires plaintiffs to serve defendants with an affidavit of merit (AOM) in all professional malpractice or negligence matters.   The statute provides in pertinent part:

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.

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].

[N.J.S.A. 2A:53A–27.]

In determining whether the AOM statute applies to a particular claim, courts consider three factors:

(1) whether the action is for “damages for personal injuries, wrongful death or property damage” (nature of injury);  (2) whether the action is for “malpractice or negligence” (cause of action);  and (3) whether 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” (standard of care).

[Couri v. Gardner, 173 N.J. 328, 334 (2002) (alteration in original) (quoting N.J.S.A. 2A:53A–27).]

Plaintiff argues on appeal that the causes of action set out in her complaint are for intentional torts and general negligence only.   Judge Mizzone rejected this argument:

These causes of action are clearly premised on allegations of medical malpractice or negligence;  in particular, the supposed breach of medical standards of care regarding when and how restraints should be applied, supervision of patients while in the bathroom, removal of non-hospital medications for patient safety, discussion and communication of patient information among medical providers, responses to patient concerns, and record-keeping.   All of these charged failures go to the heart of the professional judgment exercised by these healthcare professionals;  all require compliance with the Affidavit of Merit statute, N.J.S.A. 2A:53A–27.

We have previously explained that “causes of action alleging intentional torts that rely for their success upon proof of a deviation from the professional standard of care applicable to the profession are subject to the [AOM] requirement, regardless of their label.”  Balthazar v. Atl. City Med. Ctr., 358 N.J.Super. 13, 27 (App.Div.) (citing Couri, supra, 173 N.J. at 340), certif. denied, 177 N.J. 221 (2003).   We agree with Judge Mizzone that the factual allegations underpinning each of plaintiff's causes of action implicate professional standards of care.

Plaintiff next argues that no AOM is required as the common knowledge exception applies.  “The ‘common knowledge’ doctrine applies where ‘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.”  Bender v. Walgreen E. Co., Inc., 399 N.J.Super. 584, 590 (App.Div.2008).   Judge Mizzone rejected plaintiff's contention that her claims were excepted from the AOM requirement by virtue of the common knowledge doctrine:

[An] average juror would simply not have the knowledge base to assess whether or not the exercise of a nurse's professional judgment requires supervision of a patient during bathroom and shower use for her safety.   An average juror would not be familiar with the practices and standards of communication among medical providers and recordkeeping/medical charting standards.   While a juror may basically understand that medical staff should respond to patient concerns and calls, the standards regarding the substance of those medical concerns, the information relayed to the patient regarding their medical treatment, and the reasonableness of particular response time would require expert testimony based upon the specific facts of the case.   Lastly, an average juror would not be familiar with hospital practice regarding removal of patient belongings, including prescription medication to avoid duplicative or contraindicated use of medications prescribed prior to the admission.   All of these issues require the jury's consideration of professional standards as explained by appropriately credentialed experts.

All of the allegations in plaintiff's complaint relate to the patient care and medical treatment rendered by defendant nurses, and require a finding of deviation from the acceptable standards of professional care.   Whether the nurses breached their duty of care in connection with their treatment of plaintiff is not susceptible to lay evaluation, since these standards are not “ ‘readily apparent to anyone of average intelligence and ordinary experience.’ ”  Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469–70 (1999) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)).   Rather, any issue of the nurses' negligence would be related to “ ‘technical matters peculiarly within the knowledge’ ” of practitioners in the nursing field.   Chin, supra, 160 N.J. at 470 (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)).

We have carefully reviewed the record and the arguments presented and conclude that the remaining issues presented by plaintiff are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).

Affirmed.

PER CURIAM