NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3493-14T2
ANTHONY McCORMICK,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
August 25, 2016
v. APPELLATE DIVISION
STATE OF NEW JERSEY,
Defendant-Respondent.
________________________________
Submitted August 9, 2016 – Decided August 25, 2016
Before Judges Sabatino, Messano and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Docket No. L-537-12.
Franzblau Dratch, P.C., attorneys for
appellant (Brian M. Dratch, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General,
on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal poses a legal issue not previously decided in
case law under the Affidavit of Merit ("AOM") statute, N.J.S.A.
2A:53A-26 to -29. The matter arises in the context of a
plaintiff injured by the alleged negligence of licensed
professionals, who are claimed to have deviated from applicable
standards of care while providing services at the behest of a
public entity. The issue is whether the plaintiff can avoid the
need to obtain an AOM by suing only the public entity and not
the professionals. For the reasons that follow, we conclude
that such circumvention of the statute is impermissible and
affirm the trial court's determination that an AOM was required
in this case. We remand, however, for further proceedings to
explore more fully whether the sanction of dismissal of this
lawsuit is justified.
I.
The relevant circumstances are as follows. Since October
2008 defendant, the State of New Jersey, has contracted with
Rutgers University Correctional Health Care, formerly part of
the University of Medicine and Dentistry of New Jersey
("UMDNJ"), to provide State prison inmates with medical, dental,
and mental health services. In that role, UMDNJ provided
medical staff and services to the inmates at South Woods State
Prison ("South Woods") during the time period relevant to this
case.
Plaintiff Anthony McCormick was a State prisoner serving a
twenty-year sentence at South Woods. Plaintiff claims that in
June 2010, he began complaining to medical staff working at
2 A-3493-14T2
South Woods of "severe pain in the front area of his head," for
which he was given Motrin. According to plaintiff, no
diagnostic tests were conducted, and he was left to "needlessly
suffer" for a month without additional medical care.
Plaintiff's symptoms persisted, and he was transferred on
June 29, 2010 to St. Francis Medical Center for diagnosis and
treatment. A CT scan was performed, and it was determined he
was suffering from a "[r]uptured right parietal brain abscess
with ventriculitis." Plaintiff consequently underwent brain
surgery at St. Francis on July 1, 2010. The abscess was
evacuated, and he was discharged back to South Woods on July 16,
2010 "in stable condition."
Records of plaintiff's follow-up care performed in October
2010 at the prison's Extended Care Unit noted that he was
complaining of blurry vision and dizziness. Neurological
testing also revealed signs of cognitive impairment. A medical
report stated that plaintiff's "thought process and behavior is
that of a [six to seven] year old child," and recited various
delusional statements he made during the course of the
examination. The report did not state whether the cognitive
issues existed prior to the detection of the brain abscess.
Plaintiff submitted a notice of tort claim to the State
Treasury's Bureau of Risk Management in October 2010. He then
3 A-3493-14T2
filed a two-count complaint in the Law Division against the
State on June 20, 2012. No medical professionals or other
defendants were named. Plaintiff did not include any
fictitiously-named parties pursuant to Rule 4:26-4.
In count one of his complaint, plaintiff alleged the
medical staff at South Woods had "careless[ly], reckless[ly],
and negligen[tly]" failed to "properly treat [his] cerebral
condition, [causing] severe and permanent personal injuries[.]"
Based upon the same factual allegations, he asserted in count
two violations of his rights under the federal and state
constitutions, as well as the New Jersey Civil Rights Act
("CRA"), N.J.S.A. 10:6-1 to -2. The complaint did not mention
UMDNJ or Rutgers University Correctional Health Care in its
factual assertions.
The lawsuit was briefly removed to federal court on the
State's motion. Plaintiff moved to remand the matter back to
state court, and the State cross-moved for summary judgment.
The United States District Court granted the State's cross-
motion in part, dismissing plaintiff's federal causes of action.
The remaining state law claims were remanded to the Law
Division.
The State then moved in the Law Division to dismiss the
complaint, arguing it had not been timely served with a notice
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of tort claim. The motion was denied. Around this time, it
appears that plaintiff voluntarily dismissed the remaining state
constitutional and CRA claims in count two.
The State again moved to dismiss count one, arguing that it
could not be vicariously liable for an injury allegedly caused
by employees of UMDNJ. This motion was also denied. The State
then answered the complaint and denied liability. It asserted
no third-party claims against any persons or entities.
In December 2014, the State filed a third motion to
dismiss, arguing for the first time that plaintiff had failed to
serve it with an AOM pursuant to N.J.S.A. 2A:53A-27. Plaintiff
countered that he was not obligated to provide an AOM because
the State, the sole defendant in this case, is not a "licensed
professional" or a licensed "health care facility" within the
terms or intent of the statute.
Judge Richard J. Geiger granted the State's motion on
January 23, 2015, dismissing the complaint with prejudice. In
his decision, Judge Geiger concluded that because the alleged
actions and inactions of the medical staff at South Woods
involve conduct by licensed professionals, plaintiff must
support his claims of negligence with a proper and timely AOM
from a qualified professional. Plaintiff moved for
reconsideration, which was denied.
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This appeal followed. Plaintiff principally contends that
he was not obligated, as a matter of law, to file an AOM against
the State. Alternatively, he argues that, if this court finds
that such an obligation exists, he should be afforded an
opportunity on remand to procure an affidavit. He makes this
request because the State did not assert the need for an AOM in
its answer and also because the trial court did not conduct a
"Ferreira conference"1 that could have alerted him sooner to the
need for an AOM.
II.
As the Supreme Court reiterated recently, "[t]he stated
purpose of the AOM statute . . . is laudatory – to weed out
frivolous claims against licensed professionals early in the
litigation process." Meehan v. Antonellis, ___ N.J. ___, ___
(2016) (slip op. at 14) (citing Ferreira, supra, 178 N.J. at
146); see also Buck v. Henry, 207 N.J. 377, 383 (2011).
Pursuant to the mandate expressed in the statute, "[t]he
submission of an appropriate affidavit of merit is considered an
element of the claim." Meehan, supra, slip op. at 14-15 (citing
Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 244 (1998)
(holding that a plaintiff's failure to submit the required AOM
1
See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144
(2003).
6 A-3493-14T2
"goes to the heart of the cause of action as defined by the
Legislature")); see also N.J.S.A. 2A:53A-29. "Failure to submit
an appropriate affidavit ordinarily requires dismissal of the
complaint with prejudice." Meehan, supra, slip op. at 15
(citing Cornblatt, supra, 153 N.J. at 243).
Section 27 of the AOM statute provides, in relevant part:
In any action for damages for personal
injuries . . . 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 the 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.
[N.J.S.A. 2A:53A-27 (emphasis added).]
The statute also provides that a "licensed person," in the
context of malpractice claims against health care providers,
includes a person licensed as "a physician in the practice of
medicine or surgery"; "a podiatrist"; "a chiropractor"; "a
registered professional nurse"; "a health care facility"2; "a
2
The AOM statute defines the term "health care facility"
as a "facility or institution whether public or private, engaged
principally in providing services for health maintenance
(continued)
7 A-3493-14T2
physical therapist"; and "a registered pharmacist[.]" N.J.S.A.
2A:53A-26(f)-(m). The medical staff at South Woods who examined
and treated plaintiff, although not identified by name or by
occupation in his complaint, include such "licensed persons."
Plaintiff contends he was not required to serve an AOM in
this case because the State, as the sole named defendant, is
literally not a "licensed person" as defined in N.J.S.A. 2A:53A-
26. Nor does the State meet the statute's definition of a
"health care facility" because it is not "engaged principally"
in health care. N.J.S.A. 26:2H-2(a). In addition, the State is
not a "professional corporation[] . . . entirely owned by . . .
licensed professionals." Albrecht v. Corr. Med. Servs., 422
N.J. Super. 265, 273 (App. Div. 2011) (holding that if the
defendant in a malpractice case is a professional corporation,
then "a plaintiff is required to provide an AOM in order to
pursue litigation against the firm alone under respondeat-
superior principles").
(continued)
organizations, diagnosis, or treatment of human disease, pain,
injury, deformity, or physical condition[.]" N.J.S.A. 26:2H-
2(a). The definition expressly includes, but is not limited to,
hospitals, treatment centers, nursing homes,
clinics, "dispensar[ies]," "home health care agenc[ies]," and
"bioanalytical laborator[ies] . . . or central services
facilit[ies] serving one or more such institutions[.]" Ibid.
8 A-3493-14T2
As the trial court aptly recognized, these arguments based
on a hyper-literal reading of the AOM statute do not excuse
plaintiff from his failure to supply a proper affidavit to
support his claims that fundamentally are allegations of medical
negligence. He cannot avoid the important screening mechanism
of the AOM statute by suing only the public entity that procured
the services of the individual health care professionals who
worked at the prison.
We rejected a similar effort to get around the AOM
requirement in Shamrock Lacrosse, Inc. v. Klehr, Harrison,
Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div.
2010). In that case, the plaintiff, a patent holder, alleged it
had been injured by various acts of legal malpractice by an
attorney who was handling its patent matters. The plaintiff
sued the two law firms that had successively employed the lawyer
whose negligent conduct was in question and who had since died.
Id. at 8-9. The plaintiff "presumably wishe[d] to invoke
principles of vicarious liability" to make the law firms liable
for the conduct of their former employee. Id. at 23.
We concluded in Shamrock Lacrosse that a law firm, even
though it did not itself hold a license to practice law, should
be treated as a "licensed person" under the AOM statute in cases
arising out of its associates' allegedly deficient professional
9 A-3493-14T2
conduct. The defendant law firms were therefore entitled to an
AOM. Id. at 25, 27. We reasoned that the AOM requirement's
"focus is on the resulting harm, not on the business forms of
the named defendants" who have been sued. Id. at 23. We
rejected the plaintiff's attempt to evade the requirements of an
AOM through its overly literal construction of the statute, one
that would undermine the public policies the Legislature sought
to achieve. Id. at 21-22; see also Albrecht, supra, 422 N.J.
Super. at 272-74 (reaffirming the policy analysis of Shamrock
Lacrosse).
We apply here a similar analysis, focusing on the nature of
the underlying conduct of the medical personnel who allegedly
harmed the injured plaintiff. The State employs or utilizes
through contracts a host of licensed professionals who work in
its prisons, hospitals, mental health facilities, institutions,
transportation systems, and other operations. These
professionals include doctors, nurses, therapists, counselors,
engineers, and scores of other licensees encompassed within the
broad sweep of the AOM statute. N.J.S.A. 2A:53A-26.
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
10 A-3493-14T2
entity is liable for that harm under agency principles, then an
AOM from an appropriate qualified person is necessary to support
the lawsuit. See Meehan, supra, slip op. at 17-25 (explaining
who may be an appropriate affiant in cases respectively
involving Sections 27 and 41 of the AOM statute).3 The AOM is
required, regardless of whether the plaintiff chooses to name
the negligent professionals as co-defendants. A plaintiff
cannot circumvent the intent of the Legislature by suing only
the public entity.
In enforcing this obligation and thus carrying out the
legislative objectives of the AOM statute, we caution that an
affidavit will only be needed when the underlying harmful
conduct involves professional negligence, implicating the
standards of care within that profession. Hence, if a nurse
working in a State prison inattentively stumbles on a stairway
and knocks over an inmate, or carelessly spills his or her cup
of scalding hot coffee on a prisoner in the hallway, or engages
in some other form of negligent conduct that does not implicate
professional standards of care, then no AOM is required. See
3
As the Court clarified in Meehan, if the professional who
caused the harm is a physician, the more stringent
specialization and sub-specialization requirements of the
Patients First Act, as set forth in Section 41, may constrict
the range of appropriate affiants. Ibid.; see also Nicholas v.
Mynster, 213 N.J. 463, 479-80 (2013).
11 A-3493-14T2
Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562,
590-91 (App. Div. 2014) (offering further examples of situations
in which no AOM would be required), appeal dismissed, 224 N.J.
523 (2016); see also Murphy v. New Rd. Constr., 378 N.J. Super.
238, 242-43 (App. Div.), certif. denied, 185 N.J. 391 (2005)
(holding that an AOM was not required to pursue negligence
claims against an architectural firm if the allegations did not
implicate the standards of care of that profession). Nor is an
AOM required if the plaintiff's claims against the public entity
are based upon matters of common knowledge. Couri v. Gardner,
173 N.J. 328, 340 (2002); Triarsi v. BSC Grp. Servs., L.L.C.,
422 N.J. Super. 104, 114, 116-17 (App. Div. 2011).
The need for a supporting affidavit and the qualifications
of a suitable affiant are fact-sensitive, and depend on the
circumstances of each case. Meehan, supra, slip op. at 29-30.
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 Section 26. We thus
extend the holding of Shamrock Lacrosse to contexts involving
public entity defendants and to claims of professional
negligence beyond legal malpractice.
We reject plaintiff's argument that he does not need an AOM
because he has sued the State on a theory of vicarious
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liability. To be sure, under the Tort Claims Act, public
entities may be vicariously liable for certain acts of their
employees and agents, subject to certain immunities and
limitations. See N.J.S.A. 59:2-2 (generally providing for such
vicarious liability for the acts of public employees); but see
N.J.S.A. 59:1-34 (excluding independent contractors from the
definition of a public employee); N.J.S.A. 59:2-10 (disallowing
vicarious liability where the public employee's actions or
inactions comprise a crime, actual fraud, or willful
misconduct). Nothing in the Tort Claims Act requires that the
individuals whose negligent conduct creates the public entity's
liability be named as co-defendants in the action.
Even so, our case law recognizes that an AOM is still
required when the plaintiff's claim of vicarious liability
hinges upon allegations of deviation from professional standards
4
As mentioned previously, the State argued that it could not be
vicariously liable for the acts of employees of an independent
contractor (i.e., UMDNJ) in its second motion to dismiss. The
State has not cross-appealed the denial of that motion.
Generally, "[c]ontracting out prison medical care does not
relieve the State of its constitutional duty to provide adequate
medical treatment to those in its custody[.]" Scott-Neal v. N.J.
Dep't of Corr., 366 N.J. Super. 570, 575-76 (App. Div. 2004)
(quoting West v. Atkins, 487 U.S. 42, 56, 108 S. Ct. 2250, 2259,
101 L. Ed. 2d 40, 54 (1988)). The "non-delegable" nature of this
duty "is an exception to the general rule that one who hires an
independent contractor is not liable for the negligence of that
contractor." Ibid.
13 A-3493-14T2
of care by licensed individuals who worked for the named
defendant. In Borough of Berlin v. Remington & Vernick
Engineers, 337 N.J. Super. 590 (App. Div.), certif. denied, 168
N.J. 294 (2001), we considered allegations of malpractice
against a professional engineering firm for failing to adhere to
"hydrogeologic guidelines in applying for a water allocation
permit" in the negligent siting of two wells. Id. at 596. The
plaintiff in Berlin obtained an AOM from a hydrogeologist, and
the defendant argued that the AOM was inadequate because it was
not from a professional engineer. Id. at 594. We concluded
that the hydrogeologist affiant was an appropriately licensed
person to submit the AOM against the engineering firm. Id. at
597-98. In that regard we noted that the "appropriate licensed
person" from whom an AOM should be sought is not always dictated
by the primary specialty of the professional corporation being
sued. Id. at 598-99. But an AOM was still necessary, albeit
supplied from a different professional than the defendant
demanded, in that vicarious liability context. Ibid.5
5
The Supreme Court recently cited our analysis in Berlin with
approval in Meehan, supra, slip op. at 27-28.
14 A-3493-14T2
For these reasons, we affirm the trial court's sound
determination that plaintiff was required to procure an AOM in
this case, in which he claims that he was negligently cared for
by the State prison's medical staff. We now turn to the
question of whether the trial court's sanction of dismissal of
plaintiff's lawsuit was appropriate.
Plaintiff contends that he was deprived of a fair
opportunity to obtain an AOM in this case. He notes that the
State did not assert the lack of an AOM as an affirmative
defense with its answer. More importantly, he emphasizes that
the trial court did not conduct the required Ferreira
conference, at which the need for an AOM could have been made
clear before the statutory deadline for serving an AOM expired.
In the Court's recent opinion in Meehan, supra, it
underscored the importance of "a timely and effective" Ferreira
conference in assuring the proper and fair implementation of the
AOM statute. Meehan, supra, slip op. at 34. As the Court
explained, "[t]he conference is designed to identify and resolve
issues regarding the [AOM] that has been served or is to be
served." Ibid. The Court noted that the conference "continues
to be a critical component of fulfilling the purpose of the AOM
statute." Id. at 33. It further observed that had such an
effective Ferreira conference been conducted, it "would probably
15 A-3493-14T2
have prevented [the] appeal." Ibid. However, the Court did not
go so far as to hold that the lack of an effective conference
required reversal, because it found the AOM that the plaintiff
procured from a prosthodontist sufficed to support his claims
against the defendant orthodontist who installed his sleep apnea
device. Id. at 31-33.
Given the Supreme Court's recent guidance in Meehan, we
cannot conclude on the limited record before us that the lack of
a Ferreira conference in this case was inconsequential. On the
one hand, until we issued this opinion, there was no published
case that expressly held, as we do today, that an AOM may be
required when a tort plaintiff sues a public entity for
vicarious liability based on the professional negligence of its
staff. Hence, a Ferreira conference in this case might have
been inconclusive in the absence of such clear precedent. See,
e.g., Hill Int'l, supra, 438 N.J. Super. at 594-95 (excusing
timely compliance with the AOM requirement because existing case
law was unclear about whether an AOM from an engineer could
suffice against an architect); Shamrock Lacrosse, supra, 416
N.J. Super. at 29 (likewise excusing the lack of timely
compliance where prior decisional law from the federal courts
was split on whether an AOM against a law firm was required).
16 A-3493-14T2
On the other hand, we are mindful that plaintiff's counsel
represents a different plaintiff in a companion unpublished
appeal we also decide today, James v. County of Middlesex, No.
A-5424-14 (App. Div. August 25, 2016). In James, the plaintiff
sued a public entity, a county that operated the jail where he
was housed and allegedly given inadequate medical care, as well
as a private contractor that provided medical services to the
county for its inmates. As in this case, the plaintiff in James
initially did not serve an AOM. However, he eventually procured
one within the statutory deadline, although defense counsel
challenged the affiant's credentials.
The parallel circumstances suggest that plaintiff's counsel
in both this case and in James has been pursuing a strategy to
advance "test cases," in an attempt to avoid the AOM requirement
by suing public entities but not individual licensed
professionals who provided the medical care. We cannot tell if
that strategic supposition is true.
Nor is it clear that if a Ferreira conference had been held
here and if, hypothetically, the trial court directed that an
AOM was required, that Mr. McCormick (or those who may assist
him in making decisions, given his cognitive problems) would
have disregarded the court's admonition, refused to procure an
AOM, and taken his chances on appeal.
17 A-3493-14T2
Because the record is presently inadequate for us to
resolve the sanction issue, we remand for further proceedings in
the trial court to explore the subject further, guided by the
Supreme Court's opinion in Meehan and our opinion in this case.
The court shall have discretion to conduct a plenary hearing on
the subject as it may see fit, after the parties have been
afforded the opportunity to submit further briefs and
certifications. The trial court shall determine, in light of
Meehan and the distinct procedural circumstances here, whether
it is equitable to deny plaintiff an opportunity to cure the
omission of an AOM within a reasonable time frame.6
Lastly, we provide the following guidance for future
litigants. In cases such as this, where a plaintiff chooses to
sue a public entity for medical malpractice on a theory of
vicarious liability, the defendant entity is obligated to comply
with Rule 4:5-3 by including in its answer the identities and
specialties of the physicians, if any, involved in the
defendant's care, along with whether the treatment the defendant
received involved those specialties. See Buck, supra, 207 N.J.
6
That said, we reject plaintiff's specific argument that the
State is equitably estopped from insisting on any affidavit.
Knorr v. Smeal, 178 N.J. 169, 178 (2003). The assessment on
remand is instead confined to matters of timing and whether
plaintiff should be afforded additional time to produce the AOM
now that the governing law has been clarified.
18 A-3493-14T2
at 396. The plaintiff must then obtain and serve appropriate
affidavits of merit within sixty days of the filing of the
answer – as discussed by the Court in Meehan and required under
Sections 27 and 41 of the AOM statute – that correspond to the
qualifications of the individual professionals disclosed by the
defendant. The trial court may grant an additional sixty days
to procure the AOM upon a finding of good cause. N.J.S.A.
2A:53A-27.
A Ferreira conference must be held within ninety days of
service of the answer, at which time the plaintiff's obligations
under the AOM statute may be clarified and the court and counsel
may address the adequacy of any AOM already obtained. The
plaintiff will have until the end of the 120-day period
permissible under the AOM statute to correct any deficiencies.
Buck, supra, 207 N.J. at 394. We underscore that the purpose of
the Ferreira conference is to identify and resolve AOM-related
problems that arise. Meehan, supra, slip op. at 33. The
conference is not intended to be a substitute for reasonable
communication between opposing counsel to resolve AOM issues in
the first instance.
If the Ferreira conference fails to resolve a plaintiff's
need for more information from defendant to procure an
appropriate AOM, the plaintiff must comply with the statutory
19 A-3493-14T2
scheme by providing a "sworn statement in lieu of the [AOM]"
pursuant to N.J.S.A. 2A:53A-28, until the necessary disclosure
occurs.
Affirmed in part and remanded in part. We do not retain
jurisdiction.
20 A-3493-14T2