December 4, 2008
VIOLA DAVIS AND STANFORD DAVIS, PLAINTIFFS-APPELLANTS,
SAINT BARNABAS MEDICAL CENTER, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4109-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Wefing and Parker.
Plaintiffs Viola Davis and her husband Stanford Davis*fn1 appeal from an order entered on January 4, 2008 dismissing her complaint with prejudice for failure to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. We affirm.
The alleged facts giving rise to this complaint are as follows. Plaintiff was admitted to Saint Barnabas Medical Center (Saint Barnabas) on May 20, 2005. She claims that she was given a number of medications, after which she wandered out of her hospital room in a drug-induced state, fell and sustained injuries.
In her complaint, which was pled as a medical malpractice action, plaintiff alleged that "physicians, internist physicians, resident physicians, registered nurses, licensed practical nurses, orderlies, nursing assistants, physician assistants, maintenance personnel and/or security personnel" had a duty "to exercise such reasonable skill and/or care as is usually and/or customarily required by in-patient and/or out-patient hospital facilities . . . in making all diagnosis [sic], examination[s], prescribing of medications, administering medications, providing protective security for patients and providing restraints for patients." Plaintiff further alleged that the medical personnel and/or practitioners and/or assistants to medical personnel . . . deviate[d] from accepted standards of hospital care, medical care, nursing care . . . . failed and/or refused to properly diagnose the condition being suffered by and/or complained of by [p]laintiff . . . . failed to conduct and/or improperly conducted diagnostic testing of [p]laintiff . . . . failed to take medically accepted and/or directed precautions in securing the safety of [p]laintiff . . . . failed and/or refused to prescribe and/or administer appropriate medications under the circumstances to . . . [p]laintiff . . . . and did thereby deviate from accepted standards of medical care, medical treatment, physician care, physician treatment, registered nursing care and treatment, licensed practical nursing care and treatment, orderly care and treatment, nursing assistance care and treatment, physician assistance care and treatment and/or patient security.
Plaintiff further alleged that Saint Barnabas failed to warn her of "dangerous and/or hazardous conditions of the premises." She claimed that all of these allegations proximately caused her injuries.
The record before us is scant. There is no indication as to why or in what condition plaintiff was admitted to Saint Barnabas. The nurses' notes included in the appendix indicate that she was given Ambien at 12:15 a.m. on May 24, 2005, but at 2:00 a.m. was awake and confused; she was reoriented to time and place, and safety was maintained. At 2:30 a.m., however, the notes indicate that plaintiff "began running down hall . . . [and] fell;" and that an aide following plaintiff assisted her. No "apparent injury" was noted. Throughout the night plaintiff remained "combative," refused to sit, continued to try to get out of bed, exhibited "paranoid thoughts," and was "screaming, refusing med." Security was called to sit with plaintiff at 3:15 a.m. By 3:40 a.m., her family was in the room with her, trying to calm her. A note entered at 4:50 a.m. indicates that a family member advised the nursing staff that plaintiff "ha[d] some swelling . . . to [her] forehead."
Plaintiff never served an affidavit of merit and defendant moved to dismiss the complaint on that ground. The motion was argued on January 4, 2008, after which the trial court granted it.
In this appeal, plaintiff argues that the trial court erred in requiring her to produce an affidavit of merit. Plaintiff maintains here, as she did in the trial court, that an affidavit of merit is not necessary because the case is based solely on negligence, not medical malpractice. She contends that since a nurse's aide is not a "licensed person" within the scope of N.J.S.A. 2A:53A-26, the affidavit of merit is not required.
While the nurse's aide is not a "licensed person" subject to the affidavit of merit statute, plaintiff's allegations include the entire medical staff: the physicians who diagnosed her condition, prescribed medications and gave orders for her care and the nurses who administered her care. As it is pled, the complaint clearly sounds in medical malpractice, not simple negligence.
The affidavit of merit statute, designed as a tort reform measure in 1995, requires a plaintiff in a medical malpractice case to make a threshold showing that the claims asserted are meritorious. Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001). The statute requires that a plaintiff file an affidavit of merit in any action for damages for personal injury resulting from alleged malpractice by a "licensed person." N.J.S.A. 2A:53A-27. The affidavit of merit must be filed and served on defendants within sixty days of the filing of the answer. Ibid. The time may be extended once for good cause. Ibid. The affidavit must establish that a reasonable probability exists that the care, skill or knowledge exercised or exhibited in the treatment, practice or work fell outside accepted professional standards or practices. Ibid. The "licensed persons" covered under the statute include physicians in the practice of medicine or surgery, registered professional nurses and health care facilities, all of whom were included as defendants in the complaint. N.J.S.A. 2A:53A-26.
If a plaintiff fails to file an affidavit of merit within the required time, the statute mandates that the complaint be dismissed for failure to state a cause of action. N.J.S.A. 2A:53A-29; Cornblatt v. Barow, 153 N.J. 218, 242 (1998). A dismissal under the statute is "with prejudice" and "[s]uch a dismissal 'concludes the rights of the parties as if the suit had been prosecuted to final adjudication adverse to the plaintiff.'" Cornblatt, supra, 153 N.J. at 243 (quoting Mayflower Indus. v. Thor Corp., 17 N.J. Super. 505, 509 (Ch. Div.), appeal dismissed, 20 N.J. Super. 39 (App. Div. 1952)).
Plaintiff contends that she does not allege medical malpractice, but rather presents "a simple case of a hospital employee being negligent in watching a patient." Plaintiff claims that because a nurse's aide or assistant does not fall within the affidavit of merit statute, no affidavit is required. In the alternative, plaintiff contends that even if a nurse's aide were to fall within the statute, in this case, the common knowledge exception applies. Hubbard v. Reed, 168 N.J. 387 (2001).
Plaintiff's characterization of her complaint as simple negligence is inconsistent with the allegations and the complaint, as pled, requires an affidavit of merit. The nurse's aide, even though she is not a "licensed person" under the statute, was not ultimately responsible for determining a standard of care necessary to prevent injury to any patient. Rather, it was the nurses and physicians higher up in the chain of command, as well as the established policies and protocols of the hospital, that determined what medications to administer, whether to monitor or restrain plaintiff, how often to check on her and check for hazardous conditions, and how to supervise the aide assigned to plaintiff. It is precisely to define a requisite standard of care for the treatment of a patient in plaintiff's condition for which the nurses, doctors and hospital were ultimately responsible, that an affidavit of merit was required in this case. The trial court's reasoning in rejecting plaintiff's argument is sound:
The failure of the nursing assistant cannot be looked at in isolation of a professional duty of care to take adequate precautions on the part of representatives of the hospital, albeit medical professionals and/or nursing professionals based upon [plaintiff's] diagnosis, . . . her medications and her symptomology. The case is indeed in essence a breach of the duty of care on the part of the professionals attending this particular individual and cannot be isolated solely to the nursing aide as a simple garden variety negligence case. An affidavit of merit should have been provided under the circumstances notwithstanding that indeed it was the nurse's aide who was the last link in all of the alleged negligent [sic] to take adequate precautions which ultimately led to [plaintiff's] injury. (Emphasis added).
We agree with the trial court.
Plaintiff next argues that the common knowledge doctrine obviates the need for an affidavit in her case. She contends that "we would be underestimating the intelligence and comprehension of the average juror" if we required an expert to explain that the nurse's aide was supposed to watch the patient and make sure she did not get out of bed, and that because she failed to do so, the patient suffered injuries.
This is an oversimplification of the case. The aide's alleged failure to monitor plaintiff cannot be viewed in isolation of the overarching professional duty of the "licensed persons" to diagnose, treat and care for plaintiff.
Even if characterized as "simple negligence," the case would turn on issues of whether the patient was properly diagnosed, medicated, restrained and monitored. Resolution of these issues revolves around the professional duties of "licensed persons" under the statute.
The common knowledge doctrine allows a plaintiff to proceed with a malpractice action against a licensed professional without expert testimony. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). It is only applied in cases where "the issue of negligence is not related to technical matters peculiarly within the knowledge of [the licensed practitioner]." Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). In other words, "the carelessness of the defendant [must be] readily apparent to anyone of average intelligence and ordinary experience." Rosenberg, supra, 99 N.J. at 325. "In such a case the jury itself is allowed 'to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto.'" Ibid. (quoting Sanzari, supra, 34 N.J. at 141). Such a case is essentially transformed into "an ordinary negligence case," which the jury resolves by reaching into "its fund of common knowledge." Sanzari, supra, 34 N.J. at 141-42. "Nevertheless, it is the unusual professional malpractice case in which the common knowledge doctrine can be invoked." Rosenberg, supra, 99 N.J. at 325. In Hubbard, the Court held that
Because we do not believe that the Legislature intended to burden a plaintiff with the affidavit requirement when expert testimony is not required at trial to establish the defendant's negligence, we hold that an affidavit need not be provided in common knowledge cases when an expert will not be called to testify "that the care, skill or knowledge . . . [of the defendant] fell outside acceptable professional or occupational standards or treatment practices." [168 N.J. at 390 (quoting N.J.S.A. 2A:53A-27)].
We are not persuaded that this case falls within the common knowledge doctrine. The nurse's aide received directives from her superiors, who must adhere to a standard of care. As pled, the complaint alleges that those superiors breached professional duties in diagnosing, medicating and treating plaintiff. More specifically, the decision to provide protective measures and what type fell within the professional judgment of a "licensed person" based upon plaintiff's physical and mental condition and medical history. It was also within a physician's professional judgment to prescribe certain medications which may have contributed to the "drug-induced state" that led to plaintiff's disorientation, getting out of bed and falling. Such determinations are clearly not within the common knowledge of an average juror.
In Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536 (App. Div. 2002), we found the common knowledge doctrine was inapplicable and an affidavit of merit was required in a case with facts and claims strikingly similar to this case. There, the plaintiff fell and sustained injuries when restraints were removed from him in the defendant's healthcare facility. The plaintiff claimed that the defendant breached its duty of care by failing to keep him safe and free from harm while in its care, custody, and control and by not properly monitoring and/or securing him. We concluded that
This case allegedly entails the care with which licensed professionals were exercising their professional responsibility and judgment. Thus, although our Supreme Court in Hubbard v. Reed, 168 N.J. 387 (2001), determined that an affidavit of merit is not required in a "common knowledge" case, this does not aid [plaintiff] because the case does not come within that doctrine . . . . Because plaintiff's predicate for liability as asserted in the complaint is the manner in which a "licensed person" exercised responsibilities and judgment, and because the respects in which the deficiencies occurred, if indeed they did occur, is not a matter within the knowledge of the average citizen or juror, plaintiff would need an expert in order to make a prima facie case before the jury. [346 N.J. Super. at 542 n.4].
Here, the trial court advised plaintiff to obtain an affidavit of merit as early as October 22, 2007, during a telephonic case management conference. Plaintiff chose to proceed without an expert at her peril.
Plaintiff's argument that she should be allowed to file an amended complaint sounding in simple negligence would be worthy of consideration, but for the Supreme Court's mandate that dismissal for failure to file an affidavit of merit must be "with prejudice in all but extraordinary circumstances." Cornblatt, supra, 153 N.J. at 242. Plaintiff has not demonstrated extraordinary circumstances.