NJ Supreme Court Clarifies Affidavit of Merit Requirement for Vicarious Liability Claims

In Haviland v. Lourdes Medical Center of Burlington County, Inc., (A-70-20/085419)(Decided April 12, 2022), the Supreme Court of New Jersey held that plaintiffs are not required to serve an Affidavit of Merit (AOM) against defendant health care facilities for claims of vicarious liability arising from the negligent conduct of an employee for whom an AOM is not required under N.J.S.A. 2A:52A-26.

Facts of Haviland v. Lourdes Medical Center of Burlington County, Inc.

In February 2018, following surgery on his left shoulder, plaintiff Troy Haviland (Plaintiff) presented to Lourdes Medical Center for a radiological examination. Plaintiff alleges that during the examination, an unidentified radiology technician asked plaintiff to “hold weights contrary to the [ordering physician’s] instructions.” While holding the weights, Plaintiff sustained an injury to his newly repaired left shoulder, requiring a surgical procedure two months later.

Plaintiff brought a claim against defendant Lourdes Medical Center of Burlington County, Inc. (Defendant), alleging that an unnamed radiology technician employed by Defendant negligently performed his radiological imaging examination, causing serious injuries. Defendant’s answer denied the allegations in Plaintiff’s complaint and further contended that, because Defendant is “a healthcare facility as defined in [N.J.S.A. 26:2H-2],” plaintiff was required to produce an AOM. At a conference, Plaintiff advised the court that he was proceeding against Defendant solely on a theory of vicarious liability for the conduct of an unlicensed employee, and that an AOM was therefore unnecessary.

Defendant filed a motion to dismiss Plaintiff’s complaint for failure to serve an AOM, which was granted. The Appellate Division reversed, determining that an AOM is not required when a plaintiff’s claim against a licensed person is limited solely to vicarious liability, based upon the alleged negligence of an employee who is not a licensed person under the AOM statute.

NJ Supreme Court’s Decision in Haviland v. Lourdes Medical Center of Burlington County, Inc.

The New Jersey Supreme Court affirmed, holding that the AOM statute does not require submission of an AOM to support a vicarious liability claim against a licensed health care facility based only on the conduct of its non-licensed employee.

“Plaintiff’s vicarious liability claim does not implicate Lourdes Medical Center’s standard of care and therefore falls outside the intended scope of the AOM statute. Accordingly, we remand to the trial court for further proceedings,” the court wrote.

As the court explained, the AOM statute requires plaintiffs in professional negligence actions to provide an affidavit from an appropriate licensed professional attesting to the merit of the plaintiffs’ claims. The statute explicitly limits the term “licensed person” to the individuals and entities listed in N.J.S.A. 2A:53A-26.

The New Jersey Supreme Court next turned to whether an AOM must be served on an employer who is a “licensed person” within the meaning of the AOM statute to support a vicarious liability claim predicated on alleged negligence by an employee who is not a licensed person. While the court acknowledged that it had not previously addressed the precise legal question presented in the case, it noted that the Appellate Division has found that vicarious liability claims are tethered to the AOM requirements as to the alleged employee, not the employer.

The New Jersey Supreme Court also looked to the plain language of N.J.S.A. 2A:53A-27. It noted that the AOM requirement applies only where (1) a plaintiff’s claim is for personal injuries, wrongful death, or property damages result from an alleged act of malpractice or negligence, and (3) the alleged act of malpractice or negligence is carried out by a licensed person in the course of practicing the person’s profession.

“In this case, both the first and second requirements of the statute apply to plaintiff’s claim: he alleges that defendant’s employee caused him serious personal injuries by ‘deviat[ing] from accepted standards of medical care.’ However, plaintiff’s vicarious liability claim against defendant does not satisfy the AOM statute’s third element because the alleged act of ‘malpractice or negligence’ was not committed by a ‘licensed person,’” the court concluded.

In further support of its decision, the New Jersey cited Appellate Division cases that focused “on the nature of the underlying conduct responsible for the plaintiffs’ injuries,” as well as the AOM statute’s legislative history, namely its initial limitation to nine individual professions and later expansions to include other professions, but not that of “radiology technician.”

Finally, the New Jersey Supreme Court emphasized that if Plaintiff had raised any direct claims against the hospital for negligent hiring, training, or supervision of the non-licensed employee, those claims would have been properly dismissed for failure to provide a timely AOM. Additionally, the court noted that, although Plaintiff may pursue his claim without submission of an AOM from a licensed expert, the “holding in this case in no way relieves him of the burden of demonstrating the technician’s professional negligence at trial.”

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