Affidavit of Merit “Alleging Collective Negligence by Multiple Unidentifiable Nurses Was Inadequate”

Hargett v. Hamilton Park Opco, LLC, 477 N.J. Super. 390 (App. Div. 2023). Judge Vinci wrote the opinion in this case under the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 et seq. Plaintiff was the administrator ad prosequendum for the estate of Martha Ingram. Ms. Ingram had been a resident at a nursing facility operated by Alaris Health. While there, she developed pressure-related skin breakdown and pressure wounds. She was transferred to Jersey City Medical Center where those things continued to develop. She died about one year after she was transferred from Alaris.

Plaintiff sued Alaris, Jersey City Medical Center, and others for medical malpractice. The complaint did not name any individuals as defendants. Some defendants, including Jersey City Medical Center, settled. Alaris did not.

Plaintiff offered an affidavit of merit (“AOM”) as to Alaris that, like her complaint, did not name any individually negligent persons or acts. Instead, the AOM stated that “based upon a review of [the medical] records [of Ms. Ingram] and other circumstances as [the affiant] understand[s] them to be, . . . there exists a reasonable probability that the care, skill, or knowledge exercised in the treatment provided by Alaris [Health] . . . and Jersey City Medical Center, and members of their nursing and nursing administrative staff, fell outside acceptable professional standards and was the cause of harm to . . . [Ms.] Ingram.” The case ultimately came down to the question of whether plaintiff could pursue “a valid vicarious liability claim based on the collective failure of Alaris Health’s nursing staff to provide proper wound preventative care.”

Alaris moved to dismiss for failure of plaintiff to provide a sufficient AOM. Plaintiff countered that nothing in the law requires that an AOM identify individual employees for whose actions or inactions an employer may be held vicariously liable if the individuals are not named as defendants. The Law Division granted dismissal and the Appellate Division, applying de novo review to that grant of a motion to dismiss, affirmed.

Citing N.J.S.A. 2A:53A-27, Judge Vinci said that “[g]enerally, an AOM should identify the licensed person who allegedly deviated from the acceptable standard of care. Medeiros v. O’Donnell & Naccarto, Inc., 347 N.J. Super. 536, 542 (App. Div. 2002). That is not to say an AOM must always name the licensed person who is the subject of a vicarious liability claim. A number of decisions considered and accepted an AOM that did not identify the licensed person by name. In each case, however, it was possible to identify by the description within the AOM the licensed person or entity alleged to have deviated from the applicable standard of care.” That was not possible here, however, Judge Vinci said, and plaintiff did not take any discovery that might have revealed who any such nurse(s) might have been.

“Moreover, appellant [was] unable to identify any individual nurses who were negligent because the complaint is based fundamentally on the alleged administrative negligence of Alaris Health, not vicarious liability.” But plaintiff’s administrative negligence claim was dismissed for failure to serve an appropriate AOM, and plaintiff abandoned that claim on appeal. For those reasons, the Appellate Division affirmed the dismissal of the case.