FRANK TETTO VS. ST. CLARE'S HOSPITAL (L-2541-15, MORRIS COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5439-15T1
FRANK TETTO,
Plaintiff-Appellant,
v.
ST. CLARE'S HOSPITAL,
Defendant-Respondent.
____________________________
Submitted September 19, 2017 – Decided August 27, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-2541-15.
Anthony J. Macri, attorney for appellant.
Rosenberg Jacobs Heller & Fleming, PC,
attorneys for respondent (Raymond J. Fleming,
of counsel and on the brief; Christopher
Klabonski, on the brief).
PER CURIAM
Plaintiff Frank Tetto appeals an August 5, 2016 order
dismissing his complaint for failure to comply with the Affidavit
of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29, and with
N.J.S.A. 2A:53-41(a) of the New Jersey Medical Care Access and
Responsibility and Patients First Act, L. 2004, c. 17 (Patients
First Act). We hold the AOM statute required plaintiff to provide
an AOM. We also hold his AOM had to meet the requirements of
N.J.S.A. 2A:53A-41(a) because he claimed defendant St. Clare's
Hospital was vicariously liable for the alleged negligence of the
specialist physicians who diagnosed him at the hospital. Because
his AOM did not meet those requirements, we affirm.
I.
Plaintiff's complaint alleges as follows. On December 29,
2013, he went to defendant's emergency room, complaining of
jaundice. He "was seen by a physician who was an employee or
agent of the defendant . . . who took a history from him." He
told the physician that "he occasionally had wine with dinner."
Plaintiff's answers to interrogatories stated he had been drinking
a glass or two of wine with dinner for the past two or three
months. The hospital's records indicated he said he had been
drinking one to two glasses of wine daily for three months.
Plaintiff's complaint alleged "[t]he physician negligently
interpreted the history and symptoms, and negligently and
improperly concluded that the plaintiff was an alcoholic and that
plaintiff's jaundice was caused by an alcohol problem." The
2 A-5439-15T1
complaint alleged "plaintiff was suffering pancreatic cancer which
was the cause of the jaundice."
Plaintiff's complaint alleged that as a result of the
physician's negligence, "information [was] put into his record to
the effect that he was an alcoholic." In his answers to
interrogatories, he specified he was referring to his "discharge
papers [which] had the misdiagnosis of '3. Alcohol abuse.'"
On December 30, 2013, plaintiff requested his medical record
be amended to remove that diagnosis. Defendant amended its records
to remove the diagnosis. On October 26, 2015, plaintiff filed his
complaint "for damages" against defendant in the Law Division.
On December 14, 2015, defendant filed its answer asserting
plaintiff's claims were subject to the AOM requirement in N.J.S.A.
2A:53A-27. On January 29, 2016, the Law Division ordered that
"plaintiff[] must file and serve an [AOM]" by "February 12, 2016,
or with the consent of the parties by April 12, 2016." Plaintiff
filed an AOM dated February 19, 2016, by Thomas Bojko, M.D., a
pediatrician with experience in healthcare administration.
On April 13, 2016, defendant filed a motion to dismiss
plaintiff's complaint for failing to comply with the AOM statute
and N.J.S.A. 2A:53A-41(a). Defendant's certification stated the
"alcohol abuse" diagnosis was made by doctors specializing in
internal medicine or emergency medicine.
3 A-5439-15T1
On August 5, 2016, after hearing argument, the trial court
granted defendant's motion, and dismissed plaintiff's complaint
with prejudice. Plaintiff appeals.
II.
We must hew to our standard of review. We review the
decisions to dismiss under the AOM statute "de novo." Castello
v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016). Moreover,
plaintiff's appeal raises legal issues of statutory construction
that we review de novo. Meehan v. Antonellis, 226 N.J. 216, 230
(2016).
"When the interpretation of a statute is at issue, '[t]he
objective of that task "is to discern and effectuate the intent
of the Legislature."'" Id. at 232 (citations omitted).
We begin by giving the words of the statute
"their ordinary meaning and significance."
Words, phrases, and clauses cannot be viewed
in isolation; all the parts of a statute must
be read to give meaning to the whole of the
statute. In this way, we must construe the
statute sensibly and consistent with the
objectives that the Legislature sought to
achieve. If the statute's plain language
reveals the Legislature's intent, our
interpretative mission should come to an end.
We resort to extrinsic evidence, such as
legislative history, only "if there is
ambiguity in the statutory language that leads
to more than one plausible interpretation,"
or "if a plain reading of the statute leads
to an absurd result or if the overall
statutory scheme is at odds with the plain
language."
4 A-5439-15T1
[Nicholas v. Mynster, 213 N.J. 463, 480 (2013)
(citations omitted).]
III.
First, plaintiff claims his complaint does not fall under the
AOM statute because it is not a medical malpractice action. The
AOM statute provides in pertinent part:
In any action for damages for personal
injuries, wrongful death or property damage
resulting from an alleged act of malpractice
or negligence by a licensed person in his
profession or occupation, the plaintiff shall,
within 60 days following the date of filing
of the answer to the complaint by the
defendant, provide each defendant with 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. The court may grant no more than
one additional period, not to exceed 60 days,
to file the affidavit pursuant to this
section, upon a finding of good cause.
In the case of an action for medical
malpractice, the person executing the
affidavit shall meet the requirements of a
person who provides expert testimony or
executes an affidavit as set forth in section
7 of P.L. 2004, c. 17 (C. 2A:53A-41).
[N.J.S.A. 2A:53A-27 (emphasis added).]
Plaintiff's complaint falls within the scope of the first
paragraph of N.J.S.A. 2A:53A-27, which "applies to all actions for
5 A-5439-15T1
damages based on professional malpractice." Paragon Contractors,
Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 421 (2010).
There are three elements to consider when
analyzing whether the statute applies to a
particular claim: (1) whether the action is
for "damages for personal injuries, wrongful
death or property damage" (nature of injury);
(2) whether the action is for "malpractice or
negligence" (cause of action); and (3) whether
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" (standard of care).
[Couri v. Gardner, 173 N.J. 328, 334 (2002)
(quoting N.J.S.A. 2A:53A-27)].
First, plaintiff's complaint brought an "action for damages
for personal injuries . . . or property damage." N.J.S.A. 2A:53A-
27. The complaint averred that as a result of the discharge
diagnosis, plaintiff incurred damages including extreme and severe
mental distress, damage to his reputation as this improper medical
history was given and available to subsequent healthcare
professionals, and legal fees to get defendant to change this
wrongful entry into his medical records.
Personal injuries include "[a]ny invasion of a personal
right, including mental suffering[.]" Black's Law Dictionary 802
(8th ed. 2004). "The term 'property damage'" includes "damages
both to real and personal property." Cornblatt v. Barow, 303 N.J.
6 A-5439-15T1
Super. 81, 86 (App. Div. 1997), rev'd on other grounds, 153 N.J.
218 (1998). "Personal property embraces everything that may be
tangible or intangible such as a chose in action" or a claim for
money damages. Ibid. ("conclud[ing] that a claim against an
attorney for alleged malpractice is a claim for property damage");
see Nuveen Mun. Tr. v. Withumsmith Brown P.C., 752 F.3d 600, 603
(3d Cir. 2014); Nagim v. N.J. Transit, 369 N.J. Super. 103, 118-
19 (Law Div. 2003); cf. Couri, 173 N.J. at 334-35 (finding N.J.S.A.
2A:53A-27 inapplicable because the "plaintiff narrowed his request
for damages to the $12,000 that he paid to defendant," and thus
sought only reimbursement).
Second, plaintiff's complaint alleged the damages "result[ed]
from an alleged act of malpractice or negligence by a licensed
person in his profession or occupation." N.J.S.A. 2A:53A-27. A
"licensed person" includes "a physician in the practice of
medicine," as well as "a health care facility." N.J.S.A. 2A:53A-
26(f), (j). The complaint includes counts alleging causes of
action for negligence by the physician, negligence by the hospital,
intentional or negligent infliction of emotional distress,
misrepresentation, injurious falsehoods, and libel. Plaintiff's
allegation that the damages occurred "[a]s a result of the
aforesaid negligence of the physician" was incorporated into every
count of his complaint.
7 A-5439-15T1
Plaintiff did not use the term "malpractice," but the Court
in Couri held "[i]t is not the label placed on the action that is
pivotal but the nature of the legal inquiry." 173 N.J. at 340.
Accordingly, when presented with a tort or
contract claim asserted against a professional
specified in the statute, rather than focusing
on whether the claim is denominated as tort
or contract, attorneys and courts should
determine if the claim's underlying factual
allegations require proof of a deviation from
the professional standard of care applicable
to that specific profession. If such proof
is required, an affidavit of merit is required
for that claim, unless some exception applies.
[Ibid. (emphasis added).]
The Court in Couri stated that this "standard would include
allegations that a psychiatrist failed to diagnose a patient
properly or provide proper treatment, [but] it would exclude
allegations that a psychiatrist negligently tripped a patient when
the patient entered the doctor's office." Id. at 341 (emphasis
added).
Although plaintiff's complaint does not use the word
"diagnosis," that is exactly the process it describes: "The
physician negligently interpreted the history and symptoms, and
negligently and improperly concluded that the plaintiff was an
alcoholic and that plaintiff's jaundice was caused by an alcohol
problem." The complaint alleged the physician failed to diagnose
him properly because it was really "pancreatic cancer which was
8 A-5439-15T1
the cause of the jaundice." He also contended this resulted in
false information that he was an alcoholic being placed in his
record, namely the diagnosis of "alcohol abuse" listed as one of
four "Discharge Diagnoses." Thus, plaintiff's factual evaluations
required proof of a misdiagnosis, an archetypal "deviation from
the professional standard of care applicable to [the medical]
profession." Couri, 173 N.J. at 340.
Plaintiff argues this was an administrative failure, not a
failure of diagnosis. However, plaintiff is not claiming the
physician correctly diagnosed him but a different diagnosis was
erroneously placed on his discharge form by administrative
personnel. Rather, he is claiming the physician incorrectly
diagnosed him, and the discharge form was harmful because it
contained that misdiagnosis.
Finally, plaintiff's complaint claimed 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." Ibid.; see Alpert, Goldberg, Butler, Norton & Weiss,
P.C. v. Quinn, 410 N.J. Super. 510, 540 (App. Div. 2009) (finding
an AOM is required for a counterclaim making "allegations that
'the quality of work product was not sufficient,' and that
plaintiff 'failed to do a complete and competent job'").
9 A-5439-15T1
Plaintiff cites Couri, but again Couri defeats his claim. In
Couri, "the crux of plaintiff's complaint is that defendant
[psychiatrist] acted improperly as an expert witness by
disseminating [his] report to others without the knowledge or
consent of plaintiff." 173 N.J. at 342. The Court stressed that
"[p]laintiff is not claiming that defendant erred in respect of
the conclusions that he drew concerning psychiatric/medical
matters or that defendant acted improperly from a
psychiatric/medical standpoint." Ibid. That is precisely what
plaintiff alleged about the physician here.
Thus, plaintiff's complaint alleged negligent diagnosis by a
physician in violation of professional standards. That fits the
definition of "medical malpractice": "A doctor's failure to
exercise the degree of care and skill that a physician or surgeon
of the same medical specialty would use under similar
circumstances." Black's Law Dictionary 978 (8th ed. 2004). Thus,
this is "an action for medical malpractice" within the meaning of
N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41. See, e.g., Buck v.
Henry, 207 N.J. 377, 384 (2011) (applying N.J.S.A. 2A:53A-41 where
the plaintiff alleged the doctor "failed to properly diagnose"
him).
10 A-5439-15T1
IV.
Plaintiff argues he was not required to provide an AOM because
this case falls under the common knowledge exception. An AOM
"need not be provided in common knowledge cases when an expert
will not be called to testify 'that the care, skill or knowledge
. . . [of the defendant] fell outside acceptable professional or
occupational standards or treatment practices.'" Hubbard ex rel.
Hubbard v. Reed, 168 N.J. 387, 390 (2001) (quoting N.J.S.A. 2A:53A-
27). "The [common knowledge] doctrine applies where 'jurors'
common knowledge as lay persons is sufficient to enable them,
using ordinary understanding and experience, to determine a
defendant's negligence without the benefit of the specialized
knowledge of experts.'" Id. at 394. Thus, in Hubbard, the Court
applied the exception where a dentist was told to pull one tooth
but pulled the wrong tooth, a classic "common knowledge" case.
Id. at 396.1
Nonetheless, the Supreme Court cautioned that "we construe
that exception narrowly in order to avoid non-compliance with the
[AOM] statute." Id. at 397. We have rejected application of the
common knowledge exception where defendants alleged medical
1
Hubbard advised that "the wise course of action in all
malpractice cases would be for plaintiffs to provide affidavits
even when they do not intend to rely on expert testimony at trial."
168 N.J. at 397. Plaintiff asserts he followed that advice.
11 A-5439-15T1
misjudgments. Risko v. Ciocca, 356 N.J. Super. 406, 409-11 (App.
Div. 2003); Aster ex rel. Garofalo v. Shoreline Behavioral Health,
346 N.J. Super. 536, 542 n.4 (App. Div. 2002).
Plaintiff alleged that a physician "failed to diagnose [him]
properly," which "require[s] proof of a deviation from [a]
professional standard of care." Couri, 173 N.J. at 341.
Because plaintiff's predicate for liability as
asserted in the complaint is the manner in
which a "licensed person" exercised
[professional] responsibilities and judgment,
and because the respects in which the
deficiencies occurred, if indeed they did
occur, is not a matter within the knowledge
of the average citizen or juror, plaintiff
would need an expert in order to make out a
prima facie case before the jury.
[Aster, 346 N.J. Super. at 542 n.4.]
We agree with the trial court that it was beyond the knowledge
of lay persons whether plaintiff's jaundice was caused by his
drinking or pancreatic cancer, or whether his acknowledged daily
drinking justified the medical diagnosis of "alcohol abuse."
Plaintiff argues the common knowledge exception applies
because this case is about keeping accurate hospital records.
However, he did not allege that his diagnosis was incorrectly
recorded. Cf. Palanque v. Lambert-Woolley, 168 N.J. 398, 400-01,
406-07 (2001) (ruling a physician's misreading specimen
identification numbers as test results and falsely telling a woman
12 A-5439-15T1
she was pregnant fell within the common knowledge exception).
Rather, he is arguing the physician made an incorrect diagnosis.
Accordingly, he was required to present an AOM and expert testimony
to make out his claim.
V.
Plaintiff points out he "is not suing any individual doctors,
only the hospital." He claims that therefore "N.J.S.A. 2A:53A-
41(a)[] does not apply since the hospital is not a 'specialist or
subspecialist.'" To resolve his claim, we must consider both
N.J.S.A. 2A:53A-41(a) and the principles of vicarious liability.
A.
We first examine the language of N.J.S.A. 2A:53A-41(a). That
section states in pertinent part:
In an action alleging medical malpractice, a
person shall not give expert testimony or
execute an affidavit pursuant to the
provisions of P.L. 1995, c. 139 (C. 2A:53A-26
et seq.) on the appropriate standard of
practice or care unless the person is licensed
as a physician or other health care
professional in the United States and meets
the following criteria:
a. If the party against whom or on whose behalf
the testimony is offered is a specialist or
subspecialist . . . , the person providing the
testimony shall have specialized . . . in the
same specialty or subspecialty . . . as the
party against whom or on whose behalf the
testimony is offered, and if the person
against whom or on whose behalf the testimony
is being offered is board certified, . . . the
13 A-5439-15T1
expert witness shall be . . . (2) a specialist
or subspecialist . . . who is board certified
in the same specialty or subspecialty . . .
[and has] devoted a majority of his
professional time to either: (a) the active
clinical practice of the same health care
profession in which the defendant is licensed,
and, if the defendant is a specialist or
subspecialist . . . , the active clinical
practice of that specialty or subspecialty
. . . [or] (b) the instruction of students
. . . in the same health care profession in
which the defendant is licensed, and, if that
party is a specialist or subspecialist . . .
in the same specialty or subspecialty[.]
[N.J.S.A. 2A:53A-41(a), (a)(2) (emphasis
added).]2
Thus, our Legislature referred to the specialist physician
as "the party against whom or on whose behalf the testimony is
offered," "the person against whom or on whose behalf the testimony
is being offered," "the defendant," and "that party." Ibid. All
of those phrases on their face refer to the specialist physician
as a named party in the medical malpractice litigation. "[T]he
defendant" clearly refers to a named defendant, and "that party"
refers to "the defendant" a few words earlier. Ibid. "[T]he
party against whom or on whose behalf the testimony is offered"
2
N.J.S.A. 2A:53A-41(b) similarly provides that "[i]f the party
against whom or on whose behalf the testimony is offered is a
general practitioner, the expert witness" shall either be
practicing as a general practitioner or teaching "in the same
health care profession in which the party against whom or on whose
behalf the testimony [is offered] is licensed."
14 A-5439-15T1
also clearly refers to a party to the litigation. "[T]he person
against whom or on whose behalf the testimony is offered" likewise
appears to refer to a party, and the Legislature treated both
phrases as synonymous.
If a plaintiff sues only a health care facility and not the
specialist physician, the "defendant" is the health care facility,
not a specialist physician. Ibid. Similarly, it is the health
care facility "against whom or on whose behalf the testimony is
offered." Ibid. The health care facility is not "a specialist
or subspecialist," "board certified," or "licensed" in a health
care profession. Ibid. Thus, under the plain language of N.J.S.A.
2A:53A-41(a), suing only a health care facility does not trigger
the requirement of an AOM from a person with the "same" specialty
or subspecialty, board certification, or license. Ibid.That conclusion is corroborated by considering the entire
Patients First Act of which N.J.S.A. 2A:53A-41(a) is a part.
Elsewhere in the Patients First Act, the Legislature used
"defendant" and "party" to refer to a party in the medical
malpractice litigation.3 The Legislature used "third party" to
3
N.J.S.A. 2A:53A-40(a) (referring to "a health care provider named
as a defendant in the medical malpractice action"); N.J.S.A.
2A:53A-40(c) (addressing "a health care provider named as a
defendant" and reinstatement of a dismissed "party" and sanctions
paid to a "party"); N.J.S.A. 2A:53A-40(d) (discussing sanctions
15 A-5439-15T1
refer to other persons.4 The Legislature used "health care
facility" elsewhere, but not in N.J.S.A. 2A:53A-41(a).5
Even if N.J.S.A. 2A:53A-41's language was ambiguous, its
legislative history indicates "the party" and "the defendant" are
synonymous. The language including the phrases "the party against
whom or on whose behalf the testimony is offered," "the person
against whom or on whose behalf the testimony is being offered,"
"the defendant," and "that party" in N.J.S.A. 2A:53A-41(a) was in
a section of the original bill, and remained unchanged through
enactment. A. 50, 4-5 (Mar. 4, 2004).6 The bill's sponsor
paid to a "party") N.J.S.A. 2A:53A-41(c) (considering a "motion
by the party"); N.J.S.A. 2A:53-41(f) (authorizing damages for "the
party for whom the person was testifying as an expert"); N.J.S.A.
2A:53A-42 (discussing additur and remittitur "motions by any
party" after "a verdict in favor of the complaining party");
N.J.S.A. 17:30D-7(a) (requiring notice of "any medical malpractice
claim settlement, judgment or arbitration award to which the
practitioner is a party"); N.J.S.A. 17:30D-27(a) (discussing "a
defendant in an action brought for medical malpractice"); N.J.S.A.
17:30D-27(b) (discussing the form of judgment "[u]nless otherwise
agreed to by the parties").
4
N.J.S.A. 17:30D-19(d)(4) (a purchasing alliance may "contract
with third parties"); L. 2004, c. 17, § 31(d)(2) (creating a task
force to study "the impact of third party reimbursement policies
by insurers and health maintenance organizations").
5
See, e.g., N.J.S.A. 2A:62-1.3; N.J.S.A. 45:9-19.13(b); N.J.S.A.
17:30D-7(a).
6
The same language was in one Senate bill, S. 50, 5 (Mar. 22,
2004), and similar language using "party" and "defendant" was in
another Senate bill, S. 551, 7 (pre-filed for 2004).
16 A-5439-15T1
explained that section "establishes qualifications for expert
witnesses in medical malpractice actions and for the purpose of
executing an affidavit of merit, and provides that an expert must
have the same type of practice and possess the same credentials,
as applicable, as the defendant health care provider, unless waived
by the court." Sponsors' Statement appended to A. 50 20 (Mar. 4,
2004) (emphasis added). This explanation of the section was
repeated unchanged throughout the legislative process.7 The
legislators' consistent description of the specialist physician
as "the defendant health care provider" corroborates that when the
Legislature used the "defendant" and "party" language in N.J.S.A.
2A:53A-41(a), it was referring to a specialist physician who was
a defendant in the medical malpractice action.
The legislative findings in the Patients First Act show that
the Legislature's focus was on individual specialist physicians.
The Legislature found and declared:
a. One of the most vital interests of the State
is to ensure that high-quality health care
7
Assemb. Appropriations Comm. Statement To Assemb. Comm.
Substitute For A. 50 1-2 (Mar. 4, 2004); Assemb. Health & Human
Services Comm. Statement To Assemb. Comm. Substitute For A. 50 1-
2 (Mar. 4, 2004); Assemb. Financial Institutions & Ins. Comm.
Statement To Assemb. Comm. Substitute For A. 50 2 (Mar. 4, 2004);
Sen. Health, Human Services And Senior Citizens Comm. Statement
To Assemb. Comm. Substitute For A. 50 2 (Mar. 22, 2004); accord
Sponsors' Statement appended to S. 50 20 (Mar. 22, 2004); Sen.
Health, Human Services And Senior Citizens Comm. Statement To Sen.
Comm. Substitute For S. 50 & S. 551 2 (Mar. 22, 2004).
17 A-5439-15T1
continues to be available in this State and
that the residents of this State continue to
have access to a full spectrum of health care
providers, including highly trained
physicians in all specialties;
b. The State's health care system and its
residents' access to health care providers are
threatened by a dramatic escalation in medical
malpractice liability insurance premiums,
which is creating a crisis of affordability
in the purchase of necessary liability
coverage for our health care providers;
c. One particularly alarming result of rising
premiums is that there are increasing reports
of doctors retiring or moving to other states
where insurance premiums are lower, dropping
high-risk patients and procedures, and
practicing defensive medicine;
d. The reasons for the steep increases in the
cost of medical malpractice liability
insurance are complex and involve issues
related to: the State's tort liability system;
the State's health care system, which includes
issues related to patient safety and medical
error reporting; and the State's regulation
and requirements concerning medical
malpractice liability insurers; and
e. It is necessary and appropriate for the
State to take meaningful and prompt action to
address the various interrelated aspects of
these issues that are impacted by, or impact
on, the State's health care system; and
f. To that end, this act provides for a
comprehensive set of reforms affecting the
State's tort liability system, health care
system and medical malpractice liability
insurance carriers to ensure that health care
services continue to be available and
accessible to residents of the State and to
18 A-5439-15T1
enhance patient safety at healthcare
facilities.
[N.J.S.A. 2A:53A-38 (emphasis added).]
"One of those reforms is embodied in the enhanced standards
contained in Section 41 [N.J.S.A. 2A:53A-41]." Meehan, 226 N.J.
at 234. By requiring that an AOM or expert testimony in a medical
malpractice action against a specialist physician generally must
be provided by a person in the same specialty, the Legislature
sought to weed out meritless lawsuits against specialist
physicians, and thus reduce their medical malpractice insurance
premiums. That serves the Legislature's goals of keeping
specialist "doctors" from leaving the State, or dropping high-risk
practices and procedures, and thus ensuring access to specialist
"physicians." N.J.S.A. 2A:53A-38. Thus, the Legislature's focus
was on suits against individual physician specialists. See Lomando
v. United States, 667 F.3d 363, 387 (3d Cir. 2011); N.J. State Bar
Ass'n v. State, 382 N.J. Super. 284, 298-303 (2005), aff'd, 387
N.J. Super. 24 (App. Div. 2006).
All of our Supreme Court's cases involving the statute have
thus far involved suits against individual specialist physicians.
Nicholas, 213 N.J. at 470 & n.5; Buck, 207 N.J. at 383; Ryan v.
Renny, 203 N.J. 37, 43 (2010). The Court has referred to the
statute as "applying only to physicians who are defendants in
19 A-5439-15T1
medical malpractice actions" rather than dentists in dental
malpractice actions. Meehan, 226 N.J. at 234. The Court has also
referred to the statute as applying: to a "physician party" and
"parties to a medical malpractice action," id. at 233; to a
"defendant physicians," Nicholas, 213 N.J. at 467-468, 481-82,
485-86; Ryan, 203 N.J. at 52; where "the defendant is a specialist,
board-certified, or a general practitioner," Ryan, 203 N.J. at 57-
58; see id. at 52-54; and to "a physician defending against a
malpractice claim," Buck, 207 N.J. at 396; see R. 4:5-3. Our
cases have used similar terms. E.g., Castello, 446 N.J. Super.
at 15-18; Medina v. Pitta, 442 N.J. Super. 1, 18-30 (App. Div.
2015); Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168,
178, 181 (App. Div. 2015). Thus, courts have read N.J.S.A. 2A:53A-
41 in accordance with its plain language.
Accordingly, we decline to find that the Legislature decided
whether the AOM requirements of N.J.S.A. 2A:53A-41 should apply
if the only defendant was a health care facility. The statutory
language and legislative history indicate the Legislature was
focused on suits against individual specialist physicians. The
Legislature was silent as to health care facilities. N.J.S.A.
2A:53A-41(a) solely addresses the requirements for an AOM and for
expert testimony in situations where the specialist physician is
a party.
20 A-5439-15T1
B.
In Hubbard, our Supreme Court created an exemption from the
AOM requirement for common knowledge cases, reasoning: "We do not
know whether the drafters of this legislation even contemplated a
common knowledge exemption, but believe such an exemption to
comport with their likely intent, and with a practical common
sense interpretation of the statute." 168 N.J. at 395-96.
Similarly, it does not appear that the Legislature considered
whether a defendant who invoked the judicially-crafted principles
of vicarious liability to sue a health care facility based on the
alleged negligence of a specialist physician should be required
to meet the AOM requirements. We believe that such a requirement
comports with their likely intent if they had considered that
issue, and with a practical, common-sense implementation of the
statutory scheme. In any event, we believe it is called for by
an even-handed application of the principles of vicarious
liability.
Plaintiff's complaint invokes the judicially-crafted
principles of vicarious liability for agency and respondeat
superior. After describing "the negligence of the physician," his
complaint repeatedly claimed defendant was "liable for the
referenced negligent acts of" its "employees, agents, or
servants." Where a plaintiff invokes the principles of vicarious
21 A-5439-15T1
liability in an effort to hold a health care facility liable as a
principal or employer for the negligence or malpractice of a
specialist physician agent or employee, then under those
principles the liability of the principal or employer must be
judged on the same basis as the liability of the agent or employee.
The courts of New Jersey apply "a vicarious liability
principle pursuant to which a master will be held liable in certain
cases for the wrongful acts of his servants or employees." Carter
v. Reynolds, 175 N.J. 402, 408 (2003). The New Jersey courts also
apply the companion "principle that 'a verdict which exonerates
the employee from liability requires also the exoneration of the
employer.'" Walker v. Choudhary, 425 N.J. Super. 135, 152 (App.
Div. 2012) (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954)).
"This conclusion is rooted in 'considerations of fundamental
fairness that, if the employee is not to be held responsible for
his wrongdoing, the employer whose liability is asserted solely
upon the basis of imputed responsibility for his employee's wrong
cannot in fairness and justice be required to respond in damages
for it.'" Ibid. (quoting Kelley, 16 N.J. at 271).
We believe the same principles of fundamental fairness apply
here. N.J.S.A. 2A:53A-41(a) requires that a specialist physician
may not be sued or held liable for alleged negligence within that
specialty unless an AOM is provided, and expert testimony
22 A-5439-15T1
presented, by an expert with the same specialty. Here, plaintiff
sought to hold a health care facility vicariously liable for the
alleged malpractice or negligence of a specialist physician. If
the specialist physician cannot be held liable under N.J.S.A.
2A:53A-41(a) because no expert with that specialty will provide
an AOM or testify that any negligence occurred, the health care
facility cannot in fairness and justice be held vicariously liable.
Thus, considerations of fundamental fairness require the same AOM
and expert testimony requirements apply before a health care
facility can be found liable for the specialist physician's alleged
negligence under principles of vicarious liability.
We have repeatedly utilized the principles governing
vicarious liability to govern the application of the AOM statute.
In Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.
590 (App. Div. 2001), the plaintiff sued an engineering firm,
alleging it "was responsible, under respondeat superior, for its
hydrogeologist's negligent siting of [a] well." Id. at 597 (also
noting "[t]he firm may also be responsible for the hydrogeologist's
work on an agency theory"). We held the plaintiff properly
supplied the firm with an AOM from a geologist, "despite the fact
that only the engineering firm was sued," because "[t]he liability
pressed against the engineering firm is solely vicarious." Id.
at 598.
23 A-5439-15T1
In Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey,
Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div. 2010), the
plaintiff sued only law firms, based on the "allegedly negligent
omissions by a [deceased] patent attorney who had worked, in
succession, at the two law firms." Id. at 4-5, 9. The plaintiff
argued it was not required to serve an AOM on the firms because
N.J.S.A. 2A:53A-26(c) listed only "an attorney" and not a law firm
as a "licensed person" entitled to an AOM. Id. at 16. We rejected
that claim, emphasizing: "if plaintiff's reading of the statute
were accepted, that individualized protection would provide no
solace to a law firm that could have vicarious liability for the
actions or inactions of the licensed attorneys employed by, or
affiliated with, that firm." Id. at 22. We rejected that result
because the plaintiff sought "to invoke principles of vicarious
liability . . . to make those law firms financially accountable
for the harm that" their employees caused. Id. at 23; see id. at
18, 23 (citing with approval Martin v. Perinni Corp., 37 F. Supp.
2d 362, 365-66 (D.N.J. 1999), which applied principles of vicarious
liability to require an AOM against an architectural firm run by
a licensed architect).
In Shamrock, we agreed "it would be 'entirely anomalous' to
allow a plaintiff to circumvent the affidavit requirement by naming
only law firms as defendants in a legal malpractice complaint and
24 A-5439-15T1
not the individual attorneys who performed the services." Id. at
26. "The 'salutary benefit' of the affidavit of merit - in
winnowing out unfounded malpractice claims, and in reducing
burdens on parties, counsel, witnesses, jurors, and our publicly-
funded state court system - logically should apply to this case."
Ibid.8
In Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265 (App.
Div. 2011), we cited with approval the opinion in Nagim requiring
a plaintiff to provide an AOM to "a firm comprised of licensed
persons even though it did not qualify as a licensed person
itself." Id. at 272 (alterations in original) (citing Nagim, 369
N.J. Super. at 109). We noted Nagim's ruling that "the purpose
of the [AOM Statute] would be significantly thwarted if [the]
plaintiffs could avoid [its] requirements . . . by simply alleging
professional negligence on the part of a firm of licensed
professionals, without naming any such individual professional
specifically" because the firm's liability "is dependent upon the
acts or omissions of its individual employees." Id. at 272
(alterations in original) (quoting Nagim, 369 N.J. Super. at 109).
8
Shamrock also found that "the wording of the affidavit of merit
statute contemplates such potential vicarious liability," and that
"[t]he provision's focus is on the resulting harm, not on the
business forms of the named defendants." Id. at 23. We refused
to "read [it] in a crabbed fashion that leads to anomalous
results." Id. at 26.
25 A-5439-15T1
We ruled: "Read together, [Nagim and Shamrock] hold that when a
firm's shareholders are licensed persons under the statute, a
plaintiff is required to provide an AOM in order to pursue
litigation against the firm alone under respondeat-superior
principles." Id. at 273.9
We later ruled "[t]he requirement to serve an AOM also applies
. . . where a plaintiff 'wishes to invoke principles of vicarious
liability' against partners of a law firm for a fellow partner's
malpractice or negligence." Mortg. Grader, Inc. v. Ward & Olivo,
LLP, 438 N.J. Super. 202, 214 (App. Div. 2014) (quoting Shamrock,
416 N.J. Super. at 23). In affirming on other grounds, the Supreme
Court stated it was sufficient that the plaintiff served an AOM
on the law firm and the allegedly negligent partner. Mortg.
Grader, Inc. v. Ward & Olivo, LLP, 225 N.J. 423, 443 (2016).
Finally, in McCormick v. State, 446 N.J. Super. 603 (App.
Div. 2016), a prisoner sued the State alleging negligent treatment
by the prison's contract medical staff. Id. at 607-08. Faced
with the issue "whether the plaintiff can avoid the need to obtain
9
Subsequently, we have reiterated that Shamrock requires
plaintiffs to provide AOMs to entities "if the claim were solely
based upon a theory of vicarious liability or agency" for an
employee or agent who was a licensed person who allegedly acted
negligently. Hill Intern. v. Atl. City Bd. of Educ., 438 N.J.
Super. 562, 591-93 (App. Div. 2014), appeal dismissed, 224 N.J.
523 (2016); Mazur, 441 N.J. Super. at 183.
26 A-5439-15T1
an AOM by suing only the public entity and not the professionals,"
"we conclude[d] that such circumvention of the statute is
impermissible and affirm[ed] the trial court's determination that
an AOM was required." Id. at 607. We ruled:
If such professionals while serving the State,
or for that matter any other public entity,
engage in harmful conduct that deviates from
the standards of care of their respective
fields of licensure, and a plaintiff claims
that the defendant public entity is liable for
that harm under agency principles, then an AOM
from an appropriate qualified person is
necessary to support the lawsuit.
[Id. at 613 (emphasis added).]
McCormick reiterated that "an AOM is still required when the
plaintiff's claim of vicarious liability hinges upon allegations
of deviation from professional standards of care by licensed
individuals who worked for the named defendant." Id. at 613-16.
Thus, we held that "an AOM [is] required when a tort plaintiff
sues a public entity for vicarious liability based on the
professional negligence of its staff" in their capacity as licensed
persons. Id. at 617-18. "If an AOM is called for, a plaintiff
may not evade the requirement by suing only a public entity and
arguing that the entity is not a licensee listed under [N.J.S.A.
2A:53A-26]." Id. at 614.
In McCormick, we also suggested that, "if the professional
who caused the harm is a physician, the more stringent
27 A-5439-15T1
specialization and sub-specialization requirements of the Patients
First Act, as set forth in Section 41, may constrict the range of
appropriate affiants." Id. at 613 n.3. In remanding, we
instructed that "where a plaintiff chooses to sue a public entity
for medical malpractice on a theory of vicarious liability," the
defendant should indicate the "specialties of the physicians, if
any, involved in the defendant's care, along with whether the
treatment the defendant received involved those specialties," and
that the plaintiff must provide the AOMs "required under Sections
27 and 41 of the AOM statute [] that correspond to the
qualifications of the individual professionals disclosed by the
defendant." Id. at 619.
We now hold what we suggested in McCormick: N.J.S.A. 2A:53A-
41(a)'s requirements for an AOM from a person with the same
specialty as the allegedly negligent specialist physician apply
when the plaintiff sues only an entity and claims it is vicariously
liable for the specialist physician's negligence. As a matter of
"fundamental fairness," if a plaintiff invokes the principles of
vicarious liability to hold an entity liable for a specialist
physician's negligence, then the plaintiff under those principles
should have to provide the same AOM and expert testimony as
required to find liability against the specialist physician.
Walker, 425 N.J. Super. at 152. Again, "if the employee is not
28 A-5439-15T1
to be held responsible for his wrongdoing, the employer whose
liability is asserted solely upon the basis of imputed
responsibility for his employee's wrong cannot in fairness and
justice be required to respond in damages for it.'" Ibid. (quoting
Kelley, 16 N.J. at 271).
We find further support in a similar case applying a
specialist physician statute similar to N.J.S.A. 2A:53A-41.10 A
10
That Michigan statute provides:
In an action alleging medical malpractice, a
person shall not give expert testimony on the
appropriate standard of practice or care
unless the person is licensed as a health
professional in this state or another state
and meets the following criteria:
(a) If the party against whom or on whose
behalf the testimony is offered is a
specialist, specializes at the time of the
occurrence that is the basis for the action
in the same specialty as the party against
whom or on whose behalf the testimony is
offered. However, if the party against whom
or on whose behalf the testimony is offered
is a specialist who is board certified, the
expert witness must be a specialist who is
board certified in that specialty.
(b) . . . [The expert must have] devoted a
majority of his or her professional time to
either or both of the following:
(i) The active clinical practice of the same
health profession in which the party against
whom or on whose behalf the testimony is
offered is licensed and, if that party is a
29 A-5439-15T1
plaintiff sued only the hospital, and claimed she therefore did
not have to file an AOM from an expert in the same specialty as
the allegedly negligent specialist physician. Nippa v. Botsford
Gen. Hosp., 668 N.W.2d 628, 630 (Mich. Ct. App. 2003).
The Court of Appeals of Michigan rejected that claim based
on principles of vicarious liability. Id. at 630-32. "[U]nder a
vicarious-liability theory, a principal '"is only liable because
the law creates a practical identity"' between the principal and
its agents. The principal is held to have done what the agent has
done." Id. at 631 (citation omitted). "Applying th[at] logic,"
the court ruled "that the standard of care applicable to the
hospital is the same standard of care that is applicable to the
physicians named in the complaint. For all practical purposes the
hospital stands in the shoes of its agents (the doctors)." Ibid.Based on those principles of vicarious liability, the
Michigan Court of Appeals ruled "that with regard to vicarious
specialist, the active clinical practice of
that specialty.
(ii) The instruction of students . . . in the
same health profession in which the party
against whom or on whose behalf the testimony
is offered is licensed and, if that party is
a specialist, an accredited . . . program in
the same specialty.
[MCLS § 600.2169(1) (emphasis added).]
30 A-5439-15T1
liability, [the] medical-malpractice law applicable to a physician
is also applicable to the physician's hospital. . . . All [its]
procedural requirements are applicable to the hospital in the same
manner and form as if the doctor were a named party to the lawsuit."
Ibid. Thus, the court held "[a] plaintiff must submit with a
medical-malpractice complaint against an institutional defendant
an affidavit of merit from a physician who specializes or is board-
certified in the same specialty as that of the institutional
defendant's agents involved in the alleged negligent conduct."
Id. at 632. Echoing our case law, the court ruled that a
"[p]laintiff cannot avoid the procedural requirements of the law
by naming only the principal as a defendant in a medical-
malpractice lawsuit. . . . It would be absurd to have one set of
legal rules for a hospital and another set of legal rules for its
agents." Id. at 631.11
Our similar ruling based on the principles of vicarious
liability likewise prevents plaintiffs from evading the
11
The court of appeals also held that "the term 'party' under MCL
600.2169(1)(a) encompasses the agents for whose alleged negligent
acts the hospital may still be liable." 668 N.W.2d at 632. The
dissenting opinion accused the majority of "rewriting MCL 600.2169
to make it less 'illogical[.]'" Id. at 632 (quoting id. at 634(Whitbeck, C.J., dissenting)). Such a criticism does not apply
here, as we base our ruling not on statutory construction of
N.J.S.A. 2A:53A-41(a) but on the judicially-crafted principles of
vicarious liability.
31 A-5439-15T1
requirements of N.J.S.A. 2A:53A-41(a) by suing only the health
care facility and not the specialist physician even while claiming
that the facility is liable based on the specialist physician's
negligence. Our ruling also avoids having one set of legal rules
for suits against specialist physicians and a different set for
the health care facilities alleged to be vicariously liable, which
would create uncertainty and complexity. Finally, our ruling also
serves N.J.S.A. 2A:53A-41's goals of weeding out frivolous
malpractice actions alleging negligence by specialist physicians,
avoiding increases in their medical malpractice insurance rates,
reducing their incentives to stop practicing or leave New Jersey,
and thus ensure that New Jersey citizens have access to medical
care by specialist physicians.
VI.
Finally, plaintiff contends that Dr. Bojko's AOM satisfies
the requirements in N.J.S.A. 2A:53A-41(a). However, that
"requires that plaintiff['s] medical expert must 'have specialized
at the time of the occurrence that is the basis for the
[malpractice] action in the same specialty or subspecialty' as
defendant['s] physicians." Nicholas, 213 N.J. at 468.
Dr. Bojko was a pediatrician, and was board-certified in
pediatrics and pediatric critical care medicine. It is undisputed
32 A-5439-15T1
that plaintiff, who was sixty-five-years old, was not treated by
a pediatrician when he went to defendant's emergency room (ER).
The diagnosis of alcohol abuse appeared on forms listing Dr.
Marcarious Mariyampillai as the attending and admitting physician,
and on a form electronically signed by Dr. Vincent Retirado.
Defendant's certification supporting its motion to dismiss
asserted that "[a] review of the ER chart for Mr. Tetto indicates
that the diagnosis in question was most likely made by the ER
doctor, Dr. Retirado, who is an Emergency Medicine specialist,
and/or the internist, Dr. Mariyampil[l]ai, who is an Internal
Medicine specialist," and that each was board-certified in their
specialty. Plaintiff does not contest defendant's certification.
Plaintiff does not dispute that "[e]mergency medicine . . .
[and] internal medicine . . . are all distinct specialty areas
recognized by the American Board of Medical Specialties." Id. at
484. Nor does he dispute that his care and treatment in the ER
for jaundice involved those specialties. See N.J.S.A. 2A:53A-
41(a). Thus, an expert providing the AOM must "have specialized
at the time of the occurrence that is the basis for the action in
the same specialty or subspecialty[.]" Ibid.
Moreover, as Dr. Mariyampillai and Dr. Retirado were board-
certified in internal medicine and emergency medicine
respectively, the expert providing the AOM must be "a physician
33 A-5439-15T1
credentialed by a hospital to treat patients for the medical
condition . . . that is the basis for the claim or action," or
"board certified in the same specialty" and "have devoted the
majority of his professional time to . . . the active clinical
practice of that specialty" or "the instruction of students . . .
in the same specialty." See N.J.S.A. 2A:53A-41(a)(1), (2).
Plaintiff does not claim Dr. Bojko met any of those
requirements. Instead, plaintiff argues that Dr. Bojko has
extensive experience as a healthcare administrator which would
allow him to opine that defendant was negligent in allowing the
inclusion and maintain in the hospital records of "this false
information." However, plaintiff cannot show that the diagnosis
was false without an AOM and expert testimony from an expert with
the same specialty as the specialist physician(s) who made that
diagnosis and put that diagnosis in the hospital records.
Because plaintiff failed to provide such an AOM, he could not
show those specialist physicians were negligent. For the same
reason, he cannot show the health care facility where they worked
was vicariously liable for those specialist physicians'
"negligence." Under the principles of vicarious liability, it
would be fundamentally unfair to allow him to bring a frivolous
medical malpractice action against defendant, who cannot in
fairness and justice be required to respond in damages for it.
34 A-5439-15T1
Affirmed.
35 A-5439-15T1