Margaret Kleinman, Esq. v. Hackensack University Medical Center ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3499-22
MARGARET KLEINMAN,
ESQ.,
Plaintiff-Appellant,
v.
HACKENSACK UNIVERSITY
MEDICAL CENTER, MARIA
GODEVAS, R.N., and
ANGELA GONZALEZ,
Defendants-Respondents.
___________________________
Submitted May 21, 2024 – Decided September 6, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3724-21.
John L. Weichsel, attorney for appellant.
Connell Foley LLP, attorneys for respondents (Brian G.
Steller, of counsel; Thomas D. Forrester, Jr., of counsel
and on the brief).
PER CURIAM
Plaintiff Margaret Kleinman, a licensed attorney, appeals from a June 23,
2023, Law Division order dismissing her complaint with prejudice against
defendants Hackensack University Medical Center (HUMC), Maria Godevas, a
HUMC nurse, and Angela Gonzales, a HUMC resident, for failing to file a
timely affidavit of merit (AOM) as required by N.J.S.A. 2A:53A-27. For the
reasons that follow, we reverse.
A motion to dismiss for failure to provide an AOM is equivalent to a
motion to dismiss for failure to state a claim. N.J.S.A. 2A:53A-29. As a result,
"we derive the facts from plaintiff's complaint" and "recite them in the light most
favorable to plaintiff." Nostrame v. Santiago, 213 N.J. 109, 113 (2013).
On June 14, 2020, plaintiff's sister had plaintiff transported to HUMC's
emergency room for treatment of right hip pain that prevented her from
ambulating. During her treatment at the hospital, information was erroneously
entered into plaintiff's medical records that confused her with a family member
with mental illness. Defendants recorded that plaintiff had a "history of
[s]chizophrenia or [b]ipolar disorder," was "not currently on medications," and
"need[ed a p]sychiatric evaluation." However, plaintiff "ha[d] no history of
schizophrenia," nor had she ever "been diagnosed or treated for any psychiatric
illness." Among other things, the error resulted in plaintiff being "involuntarily
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committed" for twelve days and risked her being transferred to "disability
inactive status" as an attorney, see Rule 1:20-12(a).1
On June 8, 2021, plaintiff filed a three-count complaint against defendants
alleging medical malpractice, defamation, and infliction of emotional distress.
Plaintiff sought compensatory and punitive damages, among other relief.
Defendants filed a contesting answer, demanding an AOM. On March 31, 2023,
the motion judge denied plaintiff's motion for an order waiving the AOM
requirement under the common knowledge exception and ruled that AOMs were
required for the negligence asserted in her complaint. The judge later denied
plaintiff's motion for reconsideration. When plaintiff failed to produce the
AOMs after the statutory time period and an extension expired, the judge
dismissed the complaint with prejudice in a June 23, 2023, order.
In an oral decision on the record, the judge explained that "the [c]ourt
[was] constrained to comply with [N.J.S.A. 2A:53A-27]," which "clearly s[tates
that] if an affidavit is not filed within the time period set forth by the statute,
and/or any extensions, a matter sounding in medical malpractice or negligence
1
Rule 1:20-12(a) provides that "[w]hen an attorney who is admitted to practice
in this state has been judicially declared mentally incapacitated or involuntarily
committed to a mental hospital, the Supreme Court, on proof of the fact, shall
enter an order transferring the attorney to disability inactive status."
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3
cannot proceed forward as a matter of law." Further, the judge reasoned that
although the complaint alleged intentional torts and other causes of action,
because there was "nothing before th[e c]ourt that indicate[d] that there was any
. . . intentional act" on the part of defendants to defame plaintiff, "at its core,"
plaintiff was asserting a medical malpractice claim that could not proceed
without an AOM. In that regard, the judge described plaintiff's arguments as
"simply . . . a back-door attempt" to avoid the AOM requirement.
In this ensuing appeal, plaintiff argues the judge erred because an AOM
was not required under the common knowledge doctrine where another person's
mental illness was carelessly entered into plaintiff's medical record. Plaintiff
also asserts that defamation and infliction of emotional distress are "ordinary
negligence" claims, not subject to the AOM statute. Plaintiff urges us to reverse
the dismissal and apply common knowledge to the malpractice claim so that the
entire case can proceed as an ordinary negligence case. In the alternative, if we
affirm the dismissal of the malpractice count, plaintiff asserts the defamation
and emotional distress counts should still proceed as ordinary negligence claims
because, contrary to the judge's reasoning, intentional conduct was not required
for either cause of action.
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We review a trial court's ruling on a motion to dismiss de novo, without
deference to the judge's legal conclusions. Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). We must "'pass
no judgment on the truth of the facts alleged' in the complaint and must 'accept
them as fact only for the purpose of reviewing the motion to dismiss. '" Mueller
v. Kean Univ., 474 N.J. Super. 272, 283 (App. Div. 2022) (quoting Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)). Accordingly, our inquiry
is to be "undertaken with a generous and hospitable approach," affording
plaintiff "every reasonable inference of fact." Printing Mart-Morristown v.
Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).
Likewise, we "review[] de novo the statutory interpretation issue of
whether a cause of action is exempt from the [AOM] requirement," owing no
deference to the trial court's opinion. Cowley v. Virtua Health Sys., 242 N.J. 1,
14-15 (2020) (citing Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 113
(App. Div. 2011)), rev'g, Cowley v. Virtua Health Sys., 456 N.J. Super. 278,
290 (App. Div. 2018). Under N.J.S.A. 2A:53A-29, if a plaintiff is required to
provide an AOM but fails to do so, "it shall be deemed a failure to state a cause
of action," and "requires a dismissal of the complaint with prejudice," Ferreira
v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146-47 (2003).
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We first consider plaintiff's argument that the judge erred by rejecting her
contention that an AOM is not required based on the common knowledge
exception to N.J.S.A. 2A:53A-27. N.J.S.A. 2A:53A-27 requires a plaintiff
alleging an "act of malpractice or negligence by a licensed person in his [or her]
profession or occupation" to provide an AOM to each defendant within the
timeframe set forth in the statute. An AOM is "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." N.J.S.A. 2A:53A-27. Physicians, nurses, and
health care facilities, such as defendants, are "licensed person[s]" under the
statute. N.J.S.A. 2A:53A-26(f), (i), (j).
"The purpose of the [AOM] statute is to weed out frivolous complaints,
not to create hidden pitfalls for meritorious ones." Buck v. Henry, 207 N.J. 377,
383 (2011). In determining whether the AOM statute applies to a particular
claim, courts consider three factors:
(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
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complaint [] fell outside acceptable professional or
occupational standards or treatment practices"
(standard of care).
[Couri v. Gardner, 173 N.J. 328, 334 (2002) (alteration
in original) (quoting N.J.S.A. 2A:53A-27).]
The common knowledge doctrine is an exception to the AOM requirement
that arises when the claimed malpractice or professional negligence involves
matters of common knowledge. Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387,
394 (2001). The exception applies only in the rare case where "the carelessness
of the defendant is readily apparent to anyone of average intelligence,"
Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325 (1985), and when expert
testimony "is not required to prove a professional defendant's negligence,"
Cowley, 242 N.J. at 8. It 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.'" Bender v. Walgreen E. Co., Inc., 399 N.J.
Super. 584, 590 (App. Div. 2008) (quoting Hubbard, 168 N.J. at 394) ("An
[AOM] is not required in a case where the 'common knowledge' doctrine
applies" which is where "expert opinion is not required to establish the duty or
its breach").
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Our courts have established that the common knowledge exception is
properly applied in cases "'involv[ing] obvious or extreme error.'" Cowley, 242
N.J. at 11 (quoting Cowley, 456 N.J. Super. at 290). For example, the exception
has been applied where a dentist extracted the wrong tooth, Hubbard, 168 N.J.
at 396, where a doctor pumped gas instead of fluid into a patient's uterus causing
a fatal air embolism, Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 471
(1999), and where a pharmacist filled a prescription "with a drug other than the
one prescribed," Bender, 399 N.J. Super. at 591. See Est. of Chin, 160 N.J. at
471 (collecting cases).
Here, plaintiff claims the common knowledge doctrine applies, rendering
an AOM unnecessary, because "the error was one of inputting" information, and
an expert is not required to demonstrate that "putting someone else's mental
illness on another patient's record" is negligent. We agree. In determining
whether an AOM is required, "'courts must look to the underlying factual
allegations, and not how the claim is captioned in the complaint. . . . [I]t is the
nature of the proof required that controls.'" Triarsi, 422 N.J. Super. at 114(alteration and omission in original) (quoting Syndicate 1245 at Lloyd's v.
Walnut Advisory Corp., 721 F. Supp. 2d 307, 315 (D.N.J. 2010)). "'Where the
allegations do not require proof of a deviation from a professional standard of
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care, no affidavit is required. Cases fitting this categorization are referred to as
'common knowledge' cases.'" Ibid. (quoting Syndicate, 721 F. Supp. 2d at 315).
In her first count, plaintiff alleged that defendants "inappropriately asked"
her sister whether there was a family history of "psychiatric issues." Plaintiff
alleged that after her sister discussed a relative's "history of schizophrenia and
inability to live independently," defendants "breached their duty of care" by
confusing her with her family member, and "wrongly writing [the family
member's] history of schizophrenia on [p]laintiff's record." Plaintiff's
allegations do not require expert testimony to explain that the entry of inaccurate
statements into a patient's medical record constitutes negligence. Her claim does
"not require proof of a deviation from a professional standard of care,"
Syndicate, 721 F. Supp. 2d at 315, but "instead depends on proof of the parties'
conduct," Triarsi, 422 N.J. Super. at 117.
In Palanque v. Lambert-Woolley, 168 N.J. 398, 400-01, 406 (2001), our
Supreme Court held that a doctor's misreading of a patient's test results and
subsequent misdiagnosis, which led to the performance of unnecessary surgery,
constituted "careless acts [that] are quite obvious." As such, the patient "need
not present expert testimony at trial to establish the standard of care." Id. at 406.
Similarly, in Estate of Chin, where a gas line instead of a fluid line was
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accidentally hooked up to the patient during a surgical procedure, "causing . . .
gas to be introduced into [the patient's] coronary arteries and resulting in the air
embolism that killed her," the Court applied the common knowledge exception
because the case "'hinged primarily on the jury's determinations regarding who
did what with the exhaust line, rather than with regard to professional standards
of care.'" 160 N.J. at 460, 471 (quoting Est. of Chin v. Saint Barnabas Med.
Ctr., 312 N.J. Super. 81, 93 (App. Div. 1998), aff'd, 160 N.J. at 459).
Here, just as in Palanque and Estate of Chin, plaintiff's malpractice claim
hinges on who was responsible for inputting inaccurate information into
plaintiff's medical record, rather than with professional standards of medical
care. Because plaintiff's medical malpractice claim does not require expert
testimony, we conclude the judge erred in finding the AOM statute applied .
Consequently, we reverse the dismissal of count one and remand for further
proceedings consistent with this opinion.
Turning to plaintiff's defamation claim, in count two, plaintiff alleged that
defendants "acted negligently and with reckless disregard for the truth in writing
[her family member's] history of schizophrenia" on plaintiff's medical records,
despite plaintiff and her family members' "repeated[] deni[al]" of any history of
mental illness. According to plaintiff, defendants "republished the false,
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defamatory statements" of her "uncontrolled" schizophrenia and "declining"
mental health to other doctors and third-party medical facilities.
"In a general defamation case, a plaintiff claiming to be damaged by a
false statement will succeed if he [or she] shows that the speaker acted
negligently in failing to ascertain the truth of the statement." Senna v.
Florimont, 196 N.J. 469, 474 (2008). We have explained:
A defamatory statement is one that is false and 1)
injures another person's reputation; or 2) subjects the
person to hatred, contempt or ridicule; or 3) causes
others to lose good will or confidence in that person.
Romaine v. Kallinger, 109 N.J. 282, 289 (1988). A
defamatory statement "tends so to harm the reputation
of another as to lower him in the estimation of the
community or to deter third persons from associating or
dealing with him." [Restatement (Second) of
Torts § 559 (Am. L. Inst. 1977)]. "A plaintiff does not
make a prima facie claim of defamation if the contested
statement is essentially true." Hill v. Evening News
Co., 314 N.J. Super. 545, 552 (App. Div. 1998).
[Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super.
293, 305 (App. Div. 2000).]
To prove defamation, a plaintiff must establish: "'(1) the assertion of a
false and defamatory statement concerning another; (2) the unprivileged
publication of that statement to a third party; and (3) fault amounting at least to
negligence by the publisher.'" Leang v. Jersey City Bd. of Educ., 198 N.J. 557,
585 (2009) (quoting DeAngelis v. Hill, 180 N.J. 1, 13 (2004)). "The law of
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defamation distinguishes between public figures and private persons." Hill, 314
N.J. Super. at 554. Our state, "like many other states, maintains a fault standard
of negligence for defamation cases involving private-figure defendants." W.J.A.
v. D.A., 210 N.J. 229, 242 (2012).
The negligence standard requires a plaintiff to prove "that the speaker
acted negligently in failing to ascertain the truth of the statement" by a
"preponderance of the evidence." Senna, 196 N.J. at 474, 490 n.16. In contrast,
where the subject speech "touch[es] on matters of public concern and interest ,"
courts apply the "actual-malice standard." Durando v. Nutley Sun, 209 N.J. 235,
247 (2012); see also Senna, 196 N.J. at 474 (recognizing that a "plaintiff must
prove actual malice" in cases where the speech involves "public officials, public
figures, and the public interest"). That is so because "[s]peech that does not
involve matters of public concern requires that greater weight be placed on an
individual's interest in an unimpaired reputation." Senna, 196 N.J. at 491.
Here, plaintiff is not a public figure, and her medical records are not a
matter of public concern. As such, her defamation claim should be evaluated
under a negligence standard. Because the judge dismissed plaintiff's defamation
claim on the ground that she failed to plead facts showing defendants' intent to
defame as well as the judge's misapprehension of the applicability of the
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common knowledge doctrine to the malpractice claim, we reverse the dismissal
of count two and remand for further proceedings consistent with this opinion.
Finally, we address plaintiff's infliction of emotional distress claim. In
count three, plaintiff alleged that as a result of the false statements in her medical
records, she was "screened and involuntarily committed" to a medical center for
twelve days for "psychological assessment" "on the ground that she was an
imminent danger to others." Plaintiff asserted she "suffered shock," "horror,"
"humiliation," "emotional distress," and "damage to professional reputation,"
among other damages.
To establish a claim of negligent infliction of emotional distress, a
plaintiff must prove that: "(1) defendant owed a duty to plaintiff; (2) defendant
breached that duty; (3) plaintiff suffered severe emotional distress; and (4)
defendant's breach proximately caused plaintiff's emotional distress." Johnson
v. City of Hoboken, 476 N.J. Super. 361, 375-76 (App. Div. 2023). "Whether
the defendant has a duty of care to the plaintiff depends on whether it was
foreseeable that the plaintiff would be seriously, mentally distressed." Dello
Russo v. Nagel, 358 N.J. Super. 254, 269-70 (App. Div. 2003); see also Johnson,
476 N.J. Super. at 376.
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To establish a claim of intentional infliction of emotional distress, a
plaintiff must prove that: "(1) defendant acted intentionally or recklessly; (2)
the defendant's conduct was extreme and outrageous; (3) the conduct
proximately caused plaintiff's emotional distress; and (4) the emotional distress
was 'so severe that no reasonable [person] could be expected to endure it.'"
Johnson, 476 N.J. Super. at 375 (alteration in original) (quoting Ingraham v.
Ortho-McNeil Pharm., 422 N.J. Super. 12, 20 (App. Div. 2011)). A defendant
acts intentionally when he or she intends "'both to do the act and to produce
emotional distress.'" Ingraham, 422 N.J. Super. at 19 (quoting Buckley v.
Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988)). A defendant may also
be liable when he or she "'acts recklessly in deliberate disregard of a high degree
of probability that emotional distress will follow.'" Ibid. (quoting Buckley, 111
N.J. at 366).
A Rule 4:6-2(e) dismissal of a complaint for "'failure to state a claim upon
which relief can be granted'" tests "the legal sufficiency of the facts alleged on
the face of the complaint." Printing Mart-Morristown, 116 N.J. at 745-46(quoting R. 4:6-2(e)). On a motion to dismiss, a plaintiff is not required to prove
the case, but need only "'make allegations which, if proven, would constitute a
valid cause of action.'" Kieffer v. High Point Ins. Co., 422 N.J. Super. 38, 43
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(App. Div. 2011) (quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472
(App. Div. 2001)).
A reviewing court must "'search[] the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being given to amend if
necessary.'" Printing Mart-Morristown, 116 N.J. at 746 (quoting Di Cristofaro
v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). A
motion to dismiss should only be granted in "'the rarest of instances ,'" where
"'even a generous reading of the allegations does not reveal a legal basis for
recovery.'" Kieffer, 422 N.J. Super. at 43 (first quoting Printing Mart-
Morristown, 116 N.J. at 772; and then quoting Edwards v. Prudential Prop. &
Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003)).
Here, the judge determined plaintiff failed to state a claim upon which
relief could be granted because "there [was] simply not a cause of action that
c[ould] be gleaned . . . or that c[ould] move forward as a matter of law." We
disagree. A cause of action for infliction of emotional distress may be inferred
from the factual allegations in plaintiff's complaint. Printing Mart-Morristown,
116 N.J. at 746. Plaintiff has pled facts that adequately establish the elements
of an intentional or negligent infliction of emotional distress claim.
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Undoubtedly, erroneous documentation of schizophrenia in plaintiff's medical
records that resulted in a twelve-day involuntary commitment could give rise to
a cause of action for infliction of emotional distress, whether negligent or
intentional. At the very least, if necessary, plaintiff should have been afforded
an opportunity to amend the complaint either by clarifying or amplifying the
allegations. See ibid. Accordingly, we reverse the dismissal of count three and
remand for further proceedings consistent with this opinion. Nothing in our
opinion should be construed as an expression of our views regarding the merits
of the claims.
Reversed and remanded. We do not retain jurisdiction.
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