Common Knowledge Exception in New Jersey Medical Malpractice Lawsuits
To ensure that New Jersey residents file only meritorious medical malpractice lawsuits, the New Jersey legislature enacted New Jersey Revised Statutes, section 2A:53A-27 , which requires a plaintiff to obtain a sworn statement from a qualified medical professional within 60 days of the defendant’s response to a lawsuit. Notably, a 60-day extension may apply in some cases, if the court finds good cause to grant the plaintiff additional time to fulfill this requirement. The sworn statement, or Affidavit of Merit, expresses a medical expert’s opinion that the conduct of the medical professional named in the lawsuit fell below the standard of care acceptable for someone under the circumstances described in the action.
By attesting to the negligence of a healthcare provider who breached their duty to adhere to professional standards, or to provide care in accordance with the proper knowledge or skill expected of medical professionals in the same specialty when presented with the particular medical situation involved in the lawsuit, the Affidavit provides a threshold legitimacy to the suit, allowing it to proceed through the court system. In essence, this statutory requirement seeks to weed out frivolous lawsuits and prevent nuisance suits from moving forward and utilizing court resources.
Confirming the necessity for an Affidavit of Merit, the New Jersey Supreme Court recently ruled that a patient who refused her doctor’s treatment orders could not maintain a malpractice lawsuit against the nurse who likewise did not follow the doctor’s orders, without filing an Affidavit of Merit. The patient, whose doctor placed her on a feeding tube, removed the tube and refused to have it re-inserted. According to the allegations in the lawsuit, the nurse on duty at the time failed to act after the patient’s refusal to be re-intubated. The plaintiff filed her lawsuit without an Affidavit of Merit, so the trial court dismissed the lawsuit, as required by law in New Jersey.
The Appellate Court, however, reversed the trial court’s decision, citing the common knowledge exception to the Affidavit of Merit requirement. The Court concluded that the average layperson juror could plainly understand, without the help of an expert, that the nurse should have taken action when the patient removed the feeding tube and refused to have it re-inserted. The court essentially asserted that the average juror could determine that the nurse’s inaction was negligent. The court ruled that an Affidavit was not necessary because the common knowledge exception exempted the filing of the Affidavit.
Upon reviewing the case, the New Jersey Supreme Court disagreed and overturned the Appellate Court decision, ruling that the Affidavit of Merit was, indeed, necessary. Recognizing that the plaintiff failed to file one, the state’s highest court determined that, according to New Jersey law, the lawsuit must be dismissed. In overturning the Appellate Court’s ruling, the Justices determined that a lay person could not know the duty of a nurse confronted with a patient’s refusal to be intubated against the treating doctor’s orders. In fact, an expert in nursing practices, procedures, and protocols is necessary, in this case, to inform the jury’s determination of negligence. The court further added that a juror could not weigh the competing interests between patient autonomy and a nurse’s duty to obey doctor’s orders, without an expert opinion about what the proper procedures are under such circumstances.
The Supreme Court considered the Appellate Court’s concern that a clear negligence action is not thrown out on a technicality, explaining that cases qualifying for the common knowledge exception are rare. Obvious errors that anyone can recognize, jurors and experts alike, do not require an expert affidavit. Here, however, the very root question of negligence supporting this malpractice claim is whether the nurse’s inaction deviated from standard practice. A non-professional juror would not know the standard practice in a medical situation like the one presented in this case. Complicating the negligence question, the court noted, the patient’s autonomy must be considered.
The court explained that the United States Constitution and New Jersey statutes (N.J.S.A. 26:2H-12.8(e)) guarantee individuals the right to privacy and bodily integrity, including the right to refuse treatment. Thus, they concluded that this was not a common knowledge case, but a complex case of negligence requiring a medical expert’s evaluation and certification. To rule otherwise, the court contended, would allow plaintiffs to avoid fulfilling the Affidavit filing requirement. Finally, addressing the plaintiff’s missing affidavit, the court emphasized that even in the presence of a common knowledge exception, a plaintiff should not risk their case being thrown out if the court ultimately finds that the case does not qualify for it and thus, should file an Affidavit of Merit.
The Supreme Court affirmed the trial court’s dismissal of the lawsuit as required by law under N.J.S.A. 2A:53A-27, spelling significant implications for similar medical malpractice actions moving forward. Ultimately, New Jersey medical malpractice lawsuits that do not pass the preliminary test of legitimacy provided by an Affidavit of Merit may, except in rare cases, be dismissed. This underscores the need to select the best medical expert to provide the Affidavit of Merit in a given case, and to file the necessary documentation with the court within the timeframe allotted to ensure that the claim will not be summarily dismissed at the outset.
Upon filing the Affidavit and proceeding with the case, the plaintiff must still prove that negligence occurred, and that the medical professional’s negligence caused the plaintiff’s injury, but that question never arises if negligence is not first confirmed by an expert. Since expert opinions are critical for the success of a medical malpractice case, calling upon the right expert and deftly navigating legal and court procedural requirements is best left in the hands of an experienced medical malpractice attorney in New Jersey.
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At Fronzuto Law Group, our firm concentrates on the specific area of medical malpractice litigation in order to master the concepts, cases, and latest legal decisions that influence our clients’ cases. We seek to provide superior representation for clients throughout New Jersey who have been injured as a result of negligent medical care, and seek maximum damages on behalf of injured patients seeking redress from the negligent doctors, nurses, or hospitals responsible for causing them harm. If you have questions about filing a potential medical malpractice lawsuit in New Jersey, contact our knowledgeable legal team for a free consultation. Our lawyers will investigate your case and if so warranted, construct the most compelling and comprehensive claim for compensation. We are available anytime to answer your medical malpractice related questions, so please do not hesitate to contact us at (973)-435-4551 for help.