Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cowley v. Virtua Health System

Superior Court of New Jersey, Appellate Division

September 6, 2018

LINDA COWLEY and ROBERT COWLEY, w/h, Plaintiffs-Appellants,
v.
VIRTUA HEALTH SYSTEM, VIRTUA VOORHEES HOSPITAL, ROBERT GRIBBON, R.N., and HELENE CURRAN, R.N., Defendants-Respondents.

          Argued May 31, 2018

          On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3616-16.

          Randi S. Greenberg argued the cause for appellants (Sacchetta and Baldino, attorneys; Thomas F. Sacchetta, of counsel and on the briefs).

          Mary Kay Wyscoki argued the cause for respondents (Parker McCay, PA, attorneys; Carolyn R. Sleeper and Mary Kay Wysocki, of counsel; Kathryn A. Somerset, on the brief).

          Before Judges Haas, Rothstadt and Gooden Brown.

          OPINION

          ROTHSTADT, J.A.D.

          In this appeal, we are asked to consider whether the Law Division properly dismissed plaintiffs Linda Cowley's and Robert Cowley's medical malpractice complaint based upon their failure to serve an affidavit of merit (AOM), after it rejected plaintiffs' argument that the "common knowledge" exception relieved them of the obligation to serve an AOM as required by the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29. In their appeal from the Law Division's April 13, 2017 order dismissing their action against defendants Virtua - West Jersey Health System, Inc. (Virtua) (improperly pled as Virtua Health System and Virtua Voorhees Hospital), Robert Gribbon, R.N. and Helen Curran, R.N., plaintiffs contend that the common knowledge exception applied because the nurses failed to take any action when a tube that was properly inserted into Linda, [1] in accordance with a physician's order, became dislodged. We find that the unique circumstances of this case satisfied the purposes of the AMS by establishing that plaintiffs' claim had sufficient merit under the common knowledge exception to proceed, even without an AOM.

         The AMS

requires that a plaintiff who files a "malpractice or negligence [action against] a licensed person in his profession or occupation" must submit "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."
[Buck v. Henry, 207 N.J. 377, 388-89 (2011) (alteration in original) (quoting N.J.S.A. 2A:53A-27).]

         "The affidavit was identified early on by th[e] Court as a required 'threshold showing' that a malpractice claim is not frivolous." A.T. v. Cohen, 231 N.J. 337, 345 (2017) (citing In re Petition of Hall, 147 N.J. 379, 391 (1997)). In enacting the AMS, it was "the Legislature's intent that the statute facilitate the weeding-out of frivolous lawsuits." Id. at 34 6 (citations omitted). The "laudatory . . . dual purposes of the statute [are] to identify and eliminate unmeritorious claims against licensed professionals and to permit meritorious claims to proceed efficiently through the litigation process."Meehan v. Antonellis, 226 N.J. 216, 228-29 (2016) (citations omitted). "The submission of an appropriate [AOM] is considered an element of the claim." Id. at 228 (citing Alan J. Cornblatt, PA v. Barow, 153 N.J. 218, 244 (1998)). A plaintiff must serve an AOM or face dismissal of their complaint with prejudice because "[t]he failure to provide the affidavit or its legal equivalent is 'deemed a failure to state a cause of action[.]'" A.T., 231 N.J. at 346 (quoting N.J.S.A. 2A:53A-29).

         Our courts "have recognized equitable exceptions to 'temper the draconian results of an inflexible application of the statute[.]'" Ibid, (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003)). One exception is the common knowledge exception. "An [AOM] is not required in a case where the 'common knowledge' doctrine applies and obviates the need for expert testimony to establish a deviation from the professional's standard of care." Bender v. Walgreen Eastern Co., 399 N.J.Super. 584, 590 (App. Div. 2008) (citing Hubbard v. Reed, 168 N.J. 387, 390 (2001)). Case law has applied a common knowledge exception to the AOM requirement in discrete situations where expert testimony is not needed to establish whether the defendants' "care, skill or knowledge . . . fell outside acceptable professional or occupational standards or treatment practices." Hubbard, 168 N.J. at 390 (quoting N.J.S.A. 2A:53A-27). "The basic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 470 (1999) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)).

          With these guiding principles in mind, we turn to the facts set forth in the motion record. Plaintiffs' October 6, 2016 filing of their "medical malpractice complaint" arose from the treatment Linda received after being admitted to Virtua on October 17, 2014, where she underwent diagnostic testing that revealed "multiple gall stones[, ]" "a small bowel obstruction and mild dilation of the bile ducts." She was diagnosed with "acute cholecystitis[, ]" a doctor performed a procedure to remove her gallstones, and a physician's order was written requiring that a nasogastric (NG) tube be inserted.[2]

         Pursuant to the physician's order, a nurse inserted the NG tube. The order did not address reinsertion of the tube if it fell out or was otherwise removed. According to hospital records, Linda pulled out the tube less than two days later and "refused replacement[.]" Plaintiffs allege the nurses did not reinsert the tube nor did they contact anyone for instructions, including the physician who ordered the NG tube. Linda subsequently underwent surgery for a bowel obstruction and by the time she was discharged from the hospital, she was diagnosed with twelve different medical conditions. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.