May 31, 2018
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. L-3616-16.
S. Greenberg argued the cause for appellants (Sacchetta and
Baldino, attorneys; Thomas F. Sacchetta, of counsel and on
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).
Judges Haas, Rothstadt and Gooden Brown.
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,
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.
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
[Buck v. Henry, 207 N.J. 377, 388-89 (2011)
(alteration in original) (quoting N.J.S.A. 2A:53A-27).]
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).
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)).
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
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