No Affidavit of Merit Needed for Vicarious Liability Claim Based Solely on Actions of Person Not Listed Among “Licensed Persons” by the Affidavit of Merit Statute

Haviland v. Lourdes Medical Center of Burlington County, Inc., ___ N.J. Super. ___ (App. Div. 2021). In her opinion for the Appellate Division in this case today, Judge Rose summed up the “discrete yet novel issue” presented by this appeal: “whether an affidavit of merit (AOM) is mandated under the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29, when a plaintiff’s sole claim against a health care facility, which is defined as a licensed person under the AMS, is vicarious based on the alleged medical negligence of an employee, who is not a licensed person within the meaning of the AMS and as to whom no AOM is required.” The Law Division concluded that an AOM was required in these circumstances and granted summary judgment to the defendant hospital. Today, the Appellate Division disagreed and reversed.

These were the facts as Judge Rose recounted them. During a radiology examination at the hospital, “an unidentified technician asked plaintiff to ‘hold weights contrary to the [ordering physician’s] instructions,’ causing injuries that thereafter required surgical repair of plaintiff’s shoulder. Plaintiff’s complaint alleged John Doe and Lourdes ‘fail[ed] to properly perform . . . imaging and otherwise deviated from accepted standards of medical care,’ thereby proximately causing plaintiff to suffer serious personal injuries. Plaintiff also claimed Lourdes was vicariously liable for Doe’s negligent acts, as its ‘agent, servant and/or employee.'”

Thereafter, plaintiff notified the parties and the court that he was proceeding against the hospital only on a vicarious liability theory. Thus, in plaintiff’s view, no AOM was necessary. The hospital was a “health care facility” under the AMS, as to whom an AOM is required when a negligence claim is made, but radiology technicians are not among the seventeen “licensed person[s]” as to whom an AOM is mandated.

The Law Division found plaintiff’s argument “logical,” but concluded that an AOM was required, where plaintiff underwent a “medical procedure” at the hospital. The Law Division felt bound by Borough of Berlin v. Remington & Vernick Engineers, 337 N.J. Super. 590 (App. Div. 2001), in this regard, Applying de novo review, Judge Rose ruled that no AOM was necessary.

After reviewing prior cases that had addressed vicarious liability in the context of the AMS (though contexts different from that here), Judge Rose relied on the plain language of the statute that omitted radiology technicians from the list of those whose involvement triggers the need for an AOM. “[H]aving abandoned his direct liability claims against Lourdes, plaintiff’s remaining claims arose solely from the technician’s alleged medical negligence; plaintiff no longer claimed Lourdes deviated from its professional standards. Plaintiff likewise relinquished his negligent supervision and hiring allegations. Under plaintiff’s remaining vicarious liability theory, Lourdes only may be held liable for the radiology technician’s alleged medical negligence if plaintiff was injured while Doe was ‘acting within the scope of his .. . employment’ with Lourdes.”

Thus, what mattered was whether the technician, the source of any liability of the hospital, was a “licensed person” as to whom an AOM was required. Everyone agreed that the statute did not include such technicians among “licensed person[s].” Thus, “[a]n AOM is not required for a health care facility when the plaintiff’s claims in a medical negligence action are limited to vicarious liability for the alleged negligence of its employee, who does not meet the definition of a licensed person under section 26 of the AMS.”

Judge Rose agreed with the Law Division that this was “logical under the specific circumstances presented here.” But the Berlin case did not call for that result, contrary to the Law Division’s view. The panel reversed the dismissal of the case and remanded for further proceedings, with no AOM required.