Gilligan v. Junod, ___ N.J. Super. ___ (App. Div. 2022). As Judge Gilson stated in his opinion for the Appellate Division today, this case “present[ed] a question of first impression: is a licensed practical nurse a ‘licensed person’ as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.” Applying de novo review to that purely legal question, the Appellate Division answered “no,” affirming the conclusion of the Law Division.
The Appellate Division reached that result largely based on the plain language of the AOM statute. Judge Gilson observed that the statute “identifies sixteen ‘licensed person[s]’ and a ‘healthcare facility’ as covered by the statute. N.J.S.A. 2A:53A-26. Accordingly, the AOM statute expressly limits the professionals covered by its terms.”
The statute, Judge Gilson observed, covers a “registered practical nurse” but does not cover a licensed practical nurse, which is separately defined in a “Nursing Statute” to which the AOM statute refers. “[T]he Legislature was clearly aware of the distinct and separate definitions it had given for ‘a registered professional nurse,’ as compared to ‘a licensed practical nurse.’”
Legislative history also supported the panel’s result. The AOM statute was amended during the legislative process to limit the professions to which the bill applied. And “[s]ince 1995, the Legislature has amended the AOM Statute three times to expand the definition of ‘licensed person,’ to include seven other licensed professions,” but the Legislature has not amended the statute to include licensed practical nurses, though it could have.
Judge Gilson also cited Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc., 250 N.J. 368 (2022). There, the Supreme Court held that an affidavit of merit was not required in a suit against a radiology technician because such a technician was not a “licensed person” under the AOM statute. “The Court declined to expand the definition of ‘licensed person’ beyond the ‘carefully circumscribed list of professions to which the Legislature has elected to apply the AOM requirement.’ That same reasoning and construction of the AOM statute” supported the Appellate Division’s ruling today.
Defendant offered other arguments, but none of them succeeded. The panel affirmed the ruling that the AOM statute does not cover a negligence claim against a licensed practical nurse and remanded the case for further proceedings.