LINDA COWLEY VS. VIRTUA HEALTH SYSTEM (L-3616-16, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4004-16T4
LINDA COWLEY and
ROBERT COWLEY, w/h,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
September 6, 2018
v.
APPELLATE DIVISION
VIRTUA HEALTH SYSTEM,
VIRTUA VOORHEES HOSPITAL,
ROBERT GRIBBON, R.N.,
and HELENE CURRAN, R.N.,
Defendants-Respondents.
_________________________________
Argued May 31, 2018 – Decided September 6, 2018
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
3616-16.
Randi S. Greenberg argued the cause for
appellants (Sacchetta and Baldino, attorneys;
Thomas F. Sacchetta, of counsel and on the
briefs).
Mary Kay Wyscoki argued the cause for
respondents (Parker McCay, PA, attorneys;
Carolyn R. Sleeper and Mary Kay Wysocki, of
counsel; Kathryn A. Somerset, on the brief).
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
In this appeal, we are asked to consider whether the Law
Division properly dismissed plaintiffs Linda Cowley's and Robert
Cowley's medical malpractice complaint based upon their failure
to serve an affidavit of merit (AOM), after it rejected plaintiffs'
argument that the "common knowledge" exception relieved them of
the obligation to serve an AOM as required by the Affidavit of
Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29. In their appeal
from the Law Division's April 13, 2017 order dismissing their
action against defendants Virtua – West Jersey Health System, Inc.
(Virtua) (improperly pled as Virtua Health System and Virtua
Voorhees Hospital), Robert Gribbon, R.N. and Helen Curran, R.N.,
plaintiffs contend that the common knowledge exception applied
because the nurses failed to take any action when a tube that was
properly inserted into Linda,1 in accordance with a physician's
order, became dislodged. We find that the unique circumstances
of this case satisfied the purposes of the AMS by establishing
that plaintiffs' claim had sufficient merit under the common
knowledge exception to proceed, even without an AOM.
The AMS
requires that a plaintiff who files a
"malpractice or negligence [action against] a
licensed person in his profession or
1
We refer to the individual plaintiff by her first name to avoid
any confusion caused by plaintiffs' common last name.
2 A-4004-16T4
occupation" must submit "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."
[Buck v. Henry, 207 N.J. 377, 388-89 (2011)
(alteration in original) (quoting N.J.S.A.
2A:53A-27).]
"The affidavit was identified early on by th[e] Court as a
required 'threshold showing' that a malpractice claim is not
frivolous." A.T. v. Cohen, 231 N.J. 337, 345 (2017) (citing In
re Petition of Hall, 147 N.J. 379, 391 (1997)). In enacting the
AMS, it was "the Legislature's intent that the statute facilitate
the weeding-out of frivolous lawsuits." Id. at 346 (citations
omitted). The "laudatory . . . dual purposes of the statute [are]
to identify and eliminate unmeritorious claims against licensed
professionals and to permit meritorious claims to proceed
efficiently through the litigation process." Meehan v.
Antonellis, 226 N.J. 216, 228-29 (2016) (citations omitted). "The
submission of an appropriate [AOM] is considered an element of the
claim." Id. at 228 (citing Alan J. Cornblatt, PA v. Barow, 153
N.J. 218, 244 (1998)). A plaintiff must serve an AOM or face
dismissal of their complaint with prejudice because "[t]he failure
to provide the affidavit or its legal equivalent is 'deemed a
3 A-4004-16T4
failure to state a cause of action[.]'" A.T., 231 N.J. at 346
(quoting N.J.S.A. 2A:53A-29).
Our courts "have recognized equitable exceptions to 'temper
the draconian results of an inflexible application of the
statute[.]'" Ibid. (quoting Ferreira v. Rancocas Orthopedic
Assocs., 178 N.J. 144, 151 (2003)). One exception is the common
knowledge exception. "An [AOM] is not required in a case where
the 'common knowledge' doctrine applies and obviates the need for
expert testimony to establish a deviation from the professional's
standard of care." Bender v. Walgreen Eastern Co., 399 N.J. Super.
584, 590 (App. Div. 2008) (citing Hubbard v. Reed, 168 N.J. 387,
390 (2001)). Case law has applied a common knowledge exception
to the AOM requirement in discrete situations where expert
testimony is not needed to establish whether the defendants' "care,
skill or knowledge . . . fell outside acceptable professional or
occupational standards or treatment practices." Hubbard, 168 N.J.
at 390 (quoting N.J.S.A. 2A:53A-27). "The basic postulate for
application of the doctrine therefore is that the issue of
negligence is not related to technical matters peculiarly within
the knowledge of medical or dental practitioners." Estate of Chin
v. St. Barnabas Med. Ctr., 160 N.J. 454, 470 (1999) (quoting
Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)).
4 A-4004-16T4
With these guiding principles in mind, we turn to the facts
set forth in the motion record. Plaintiffs' October 6, 2016 filing
of their "medical malpractice complaint" arose from the treatment
Linda received after being admitted to Virtua on October 17, 2014,
where she underwent diagnostic testing that revealed "multiple
gall stones[,]" "a small bowel obstruction and mild dilation of
the bile ducts." She was diagnosed with "acute cholecystitis[,]"
a doctor performed a procedure to remove her gallstones, and a
physician's order was written requiring that a nasogastric (NG)
tube be inserted.2
Pursuant to the physician's order, a nurse inserted the NG
tube. The order did not address reinsertion of the tube if it
fell out or was otherwise removed. According to hospital records,
Linda pulled out the tube less than two days later and "refused
replacement[.]" Plaintiffs allege the nurses did not reinsert the
tube nor did they contact anyone for instructions, including the
2
Cholecystitis refers to "[i]nflammation of the gallbladder."
Stedman's Medical Dictionary 365 (28th ed. 2006). An NG tube is
"[a] tube that is inserted through the nose, down the throat and
esophagus, and into the stomach. It can be used to give drugs,
liquids, and liquid food, or used to remove substances from the
stomach. Giving food through a nasogastric tube is a type of
enteral nutrition." NCI Dictionary of Cancer Terms, National
Cancer Institute,
https://www.cancer.gov/publications/dictionaries/cancer-
terms/def/nasogastric-tube (last visited Aug. 17, 2018).
5 A-4004-16T4
physician who ordered the NG tube. Linda subsequently underwent
surgery for a bowel obstruction and by the time she was discharged
from the hospital, she was diagnosed with twelve different medical
conditions. Afterward, Linda suffered various post-operative
complications that she claims resulted from defendants' "fail[ure]
to comply with the order . . . ."
Plaintiffs' complaint specifically alleged that "defendants
failed to comply with the order [for the NG tube] and while the
NG tube was out, [Linda] aspirated and significantly
deteriorated." Identifying defendants' negligence, the complaint
alleged that it included "failure to properly treat . . .
diagnose . . . [and] monitor [Linda] . . . ." It also alleged
"[d]efendants failed in their duty to plaintiff including failing
to properly care for [her,] follow policies and procedures
and . . . to notify proper medical personnel and obtain proper
consent."
Defendants filed an answer to the complaint on November 22,
2016, and on March 23, 2017, they filed a motion to dismiss the
complaint based upon plaintiffs' failure to serve an AOM.
Plaintiffs submitted their attorney's certification in opposition
to the motion that explained, "[p]laintiffs have not provided an
[AOM] as [they] believe that this matter presents a common
6 A-4004-16T4
knowledge case" that relieved them of the obligation to serve an
AOM.
On April 13, 2017, the motion judge considered the parties'
oral arguments and entered her order granting the motion to dismiss
with prejudice. In her statement of reasons placed on the record
on that date, the judge addressed plaintiffs' contention that the
common knowledge exception applied and their reliance upon the
Supreme Court's opinions in Hubbard and Estate of Chin to support
their argument that an AOM was not required in this case. The
judge acknowledged that under the exception, an AOM is not required
where a "jur[or]'s common knowledge as a lay person is sufficient
to enable them to use ordinary understanding and experience to
determine a defendant's negligence, without the benefit of the
specialized knowledge of an expert." The judge noted, however
that Hubbard suggested it was still in a plaintiff's interest to
serve an AOM to "prevent the risk of a dismissal if the plaintiff
is unsuccessful in persuading the court that an expert is not
necessary."
The motion judge also observed that plaintiffs' claim in this
case was similar to the claim made in Estate of Chin that "involved
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the improper connection of a tube to a hysteroscope[3] used during
a procedure which permitted nitrogen to enter the plaintiff's
uterus." According to the judge, in Estate of Chin, the common
knowledge exception applied because "the jury was called [upon]
to determine who did what with the tube line rather than with
regard to any professional standard of care" since the only issue
was "who improperly connected the tube . . . ."
Comparing the facts in Estate of Chin to plaintiffs' claim
here, the judge found that there was "no dispute that the [NG]
tube was . . . placed pursuant to the [physician's] order [but]
plaintiff claims when the tube was removed that the order was
continuing, and there was a continuing obligation to insert the
tube." Turning to defendant's contentions based on the medical
records, the judge found that plaintiff did "not dispute the
accuracy of the[] records" that stated that during the night
following the placement of the tube, plaintiff pulled it out and
refused to have it replaced. However, she did not consider "it
to be material to the analysis how the tube was removed or whether
[Linda] actually refused replacement."
3
A hysteroscope is "[a]n endoscope used in direct visual
examination of the canal of the uterine cavity." Stedman's Medical
Dictionary 941 (28th ed. 2006).
8 A-4004-16T4
The judge concluded that Estate of Chin did not apply because
plaintiffs did not dispute the fact that the tube was initially
inserted in accordance with a physician's order, a fact which the
judge found to be "critical in making this determination."
According to the judge, the factual circumstances here changed
"this matter from a case where a jury with ordinary knowledge and
experience could make a determination . . . to a standard of care
case that requires expert testimony." She concluded, "a jury
cannot make a determination in this case without knowing what . . .
a nurse [should] do" when an [NG] tube is inserted pursuant to an
order but subsequently comes out. Under these circumstances, the
judge held that the common knowledge exception did not apply and
an AOM was required because a jury would be called upon not to
determine whether the tube was inserted, but what is the standard
of care when the NG "tube comes out."
On appeal from the judge's order dismissing their complaint,
plaintiffs argue that contrary to the motion judge's conclusion,
the "failure to reinsert . . . Linda['s] . . . [NG] tube falls
within the 'common knowledge' exception to N.J.S.A. 2A:53A-27[.]"
We agree.
Whether plaintiff's complaint is exempt from the AOM
requirement based on the common knowledge doctrine is a legal
issue subject to our de novo review. See Triarsi v. BSC Grp.
9 A-4004-16T4
Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011). "A trial
court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special
deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995) (citations omitted).
Of significance to our review is the purpose behind the AMS
being "to weed out frivolous complaints, not to create hidden
pitfalls for meritorious ones." Buck, 207 N.J. at 383. In order
to establish a claim's merit, the AMS requires a plaintiff to
provide an expert's affidavit stating the action has merit.
N.J.S.A. 2A:53A-27. Generally, "the [AMS] 'is not concerned with
the ability of plaintiffs to prove the allegation contained in the
complaint,' but with whether there is some objective threshold
merit to the allegations." Hubbard, 168 N.J. at 394 (quoting
Hubbard v. Reed, 331 N.J. Super. 283, 292-93 (App. Div. 2000),
rev'd on other grounds, 168 N.J. 387 (2001)). The underlying
rationale of "the statute is 'to require plaintiffs . . . to make
a threshold showing that their claim is meritorious, in order that
meritless lawsuits readily could be identified at an early stage
of the litigation.'" Paragon Contrs., Inc. v. Peachtree Condo.
Ass'n, 202 N.J. 415, 421 (2010) (alteration in original) (quoting
In re Petition of Hall, 147 N.J. at 391).
10 A-4004-16T4
The AMS is consistent with the general requirement that expert
testimony is required to establish the standard of care, which is
an essential element of a plaintiff's professional negligence
claim. Expert testimony about an alleged deviation from a
reasonable standard of care is required whenever a licensed person
exercised professional responsibilities and judgment before acting
or failing to act. Aster ex rel. Garofalo v. Shoreline Behavioral
Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002). "In most
such cases, expert testimony will be required to establish both a
standard of care and breach of that standard by the defendant, and
a plaintiff who fails to present testimony could be subject to
involuntary dismissal pursuant to Rule 4:37-2(b)." Hubbard, 168
N.J. at 397.
A plaintiff aware of the AMS's requirements is free to
conclude an AOM is not necessary, but if that conclusion is
incorrect and the requisite time period for filing has passed, the
complaint must be dismissed. See Paragon, 202 N.J. at 423. "[T]he
wise course of action in all malpractice cases [is] for plaintiffs
to provide affidavits even when they do not intend to rely on
expert testimony at trial." Hubbard, 168 N.J. at 397. Any
"uncertainty in relying on common knowledge in professional
malpractice cases" should be addressed by "[a] timely filed
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affidavit [that] would prevent the risk of a later dismissal."
Ibid. (citations omitted).4
In the complex field of medicine and patient treatment, expert
testimony is typically required. See Nowacki v. Cmty. Med. Ctr.,
279 N.J. Super. 276, 291 (App. Div. 1995). That requirement,
however, is not absolute. Our courts have recognized that not all
lawsuits against licensed professionals require an AOM, including
where the common knowledge exception applies. See Bender, 399
N.J. Super. at 590. Those situations are generally limited to
where the jurors' knowledge as laypersons suffices to enable them,
using their ordinary understanding and experience, to assess a
defendant's alleged "negligence without the benefit of specialized
knowledge of experts." Hubbard, 168 N.J. at 394 (quoting Estate
of Chin, 160 N.J. at 469). "[E]ven in a medical malpractice case,
there are some duties the breach of which would be clear to a
juror of average experience and intelligence, so that expert
4
Although not raised as an issue before the motion judge or us,
we observe that the required Ferreira conference, where disputes
about AOMs should be resolved, was never scheduled by the trial
court or requested by either party. See A.T., 231 N.J. at 346
("We mandated the conference and imposed requirements on both
courts and defendants to discover and address issues as to the
sufficiency of a plaintiff's AOM." (citing Ferreira, 178 N.J. at
155)).
12 A-4004-16T4
testimony on the standard of care is not required." Nowacki, 279
N.J. Super. at 291 (citations omitted).
However, the common knowledge exception is construed narrowly
in order to avoid non-compliance with the legislative objectives
of the AOM statute. Hubbard, 168 N.J. at 397. For the exception
to apply, "the threshold of merit should be readily apparent from
a reading of the plaintiff's complaint." Id. at 395.
Determining whether a matter fits within the common knowledge
exception, demands scrutiny of the legal claims alleged. Couri
v. Gardner, 173 N.J. 328, 340-41 (2002) ("It is not the label
placed on the action that is pivotal but the nature of the legal
inquiry."). "If jurors, using ordinary understanding and
experience and without the assistance of an expert, can determine
whether a defendant has been negligent, the threshold of merit
should be readily apparent from a reading of the plaintiff's
complaint." Hubbard, 168 N.J. at 395.
Common knowledge cases involve obvious or extreme error. See
Bender, 399 N.J. Super. at 590. Our courts have held that the
exception applies in cases involving licensed medical facilities
where "jurors are competent to assess simple negligence occurring
in a hospital without expert testimony to establish the standard
of ordinary care, as in any other negligence case[.]" Nowacki,
279 N.J. Super. at 292. As the Court stated in Estate of Chin,
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the doctrine "is appropriately invoked where the 'carelessness of
the defendant is readily apparent to anyone of average intelligence
and ordinary experience.'" 160 N.J. at 469 (citations omitted).
For example, the common knowledge exception was applied in
Estate of Chin, because "[n]o party contested the fact that the
misconnection [of a hysteroscope] was the result of negligence on
the part of at least one defendant." Id. at 471. In Hubbard, it
was applied to a claim that a dentist pulled the wrong tooth.
Hubbard, 168 N.J. at 396. The exception was also applicable to:
(1) the claim against the doctor in Palanque v. Lambert-Woolley,
who misdiagnosed the plaintiff and subjected her to unnecessary
surgical procedures after admittedly "misreading [her] laboratory
results," 168 N.J. 398, 407 (2001); (2) a claim filed against the
pharmacist in Bender, 399 N.J. Super. at 590-91, who filled a
prescription with the wrong medication; and (3) the podiatrist in
Jones v. Stess, 111 N.J. Super. 283, 289-90 (App. Div. 1970), who
dropped an instrument on the patient's leg causing an amputation.
By contrast, in Risko v. Ciocca, 356 N.J. Super. 406, 408-11 (App.
Div. 2003), we rejected the exception's application because
complexities involved in plaintiff's operation and medical
condition warranted expert testimony to show whether the defendant
doctors breached a duty of care.
14 A-4004-16T4
Unlike the other cases we have considered, plaintiffs' claim
in this case presents the circumstance of an alleged obvious act
of omission, rather than an affirmative action that clearly bespoke
negligence as in the cases we cited. Other courts have found the
common knowledge exception to apply in similar circumstances. For
example, in Natale v. Camden County Correctional Facility, 318
F.3d 575, 580 (3d Cir. 2003), the Third Circuit applied the
exception where the defendant health service provider failed to
ask the patient's treating physician who ordered insulin for a
diabetic patient how often the medicine needed to be administered.
The Third Circuit concluded, "[w]hile laypersons are unlikely to
know how often insulin-dependent diabetics need insulin, common
sense -- the judgment imparted by human experience -- would tell
a layperson that medical personnel charged with caring for an
insulin-dependent diabetic should determine how often the diabetic
needs insulin." Ibid.Similarly, in Bryan v. Shah, 351 F. Supp. 2d 295, 300, 302
n.11 (D.N.J. 2005), where health providers "twice failed to obtain
blood tests to monitor Lithium levels, which tests were twice
ordered by the physician[,]" a U.S. District Court judge noted:
[T]his case does not appear to turn on whether
defendants knew that a patient taking lithium
is at risk of suffering from lithium toxicity
if regular lab tests are not performed; this
case does appear to revolve around whether
15 A-4004-16T4
medical orders were adhered to and whether
Defendants followed up with the Plaintiff
after the orders were given.
See Jackson v. Fauver, 334 F. Supp. 2d 697, 743 (D.N.J. 2004) ("A
reasonable jury would not need the assistance of an expert to
conclude that [the medical provider's] personnel were negligent
when they allegedly failed both to provide these plaintiffs with
medical care prescribed for them by their treating specialists and
to follow the medical instructions of these specialists."
(emphasis added)).
We conclude the logic applied in the cited federal cases
dealing with a failure to take action to continually fulfill a
doctor's orders applies equally to the allegations in this case.
Defendants here are alleged to have not taken any action, not even
making a telephone call to the attending physician to alert him
of the NG tube's dislodgment and to seek further instructions
given the circumstances. Applying the purpose of the AMS to these
facts, we conclude that a layperson could determine, without expert
assistance, that plaintiffs' claim based upon the nurses' failure
to take any action when the NG tube became dislodged has merit in
light of the fact that a physician ordered that it remain inserted.
At this stage, common sense dictates that some action should have
been taken when the nurses were confronted with the sudden
16 A-4004-16T4
termination of Linda's medical treatment that was required by the
physician charged with her care.
Concluding the complaint has merit does not, however,
indicate that plaintiffs' claim automatically survives challenges
that might later arise in the form of summary judgment motions or
during trial. It only means that, at this stage, there is no need
to "weed out" plaintiffs' claim. The preservation of plaintiffs'
claim is of course limited to the allegations relating to the
nurses' failure to take further action after the NG tube became
dislodged. It does not revive any other basis for plaintiffs'
claim.
Reversed and remanded. We do not retain jurisdiction.
17 A-4004-16T4