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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...