NOT FOR PUBLICATION WITHOUT THE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-4268-17T3
J.M.,
Plaintiff-Appellant,
v.
IJKG-OPCO, LLC, d/b/a CAREPOINT
HEALTH-BAYONNE MEDICAL
CENTER,
Defendant/Third-Party
Plaintiff-Respondent,
v.
DETRA BALDWIN,
Third-Party Defendant.
________________________________
Submitted February 5, 2019 – Decided March 25, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4792-16.
Timothy J. Foley argued the cause for appellant (Foley
& Foley, attorneys; Timothy J. Foley and Sherry L.
Foley, of counsel and on the briefs).
David C. Donohue argued the cause for respondent
(Farkas & Donohue, LLC, attorneys; David C.
Donohue, of counsel; Gary W. Baldwin, on the brief).
PER CURIAM
The estate of plaintiff J.M. appeals from an April 13, 2018 order
dismissing her complaint against defendant IJKG-OPCO, LLC d/b/a CarePoint
Health-Bayonne Medical Center (CarePoint) for failure to file an affidavit of
merit.1 We reverse because some of the claims asserted in plaintiff's complaint
suggest claims that do not require an affidavit of merit. Thus, we remand for
further proceedings.
I.
Plaintiff's complaint was dismissed on a motion under Rule 4:6-2(e).
Accordingly, we consider "allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a
claim." Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015)
(quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)).
On December 4, 2014, plaintiff was a patient at CarePoint, which is a
hospital. Another patient (the roommate) was assigned by personnel at
1
Because this appeal involves healthcare provided to plaintiff, we use initials
to protect her privacy interests.
A-4268-17T3
2
CarePoint to share plaintiff's hospital room. Plaintiff alleges that the roommate
assaulted her by dragging her from her hospital bed onto the floor. As a result,
plaintiff's leg was injured and had to be amputated.
On December 2, 2016, plaintiff filed a complaint against CarePoint and
various personnel who worked at the hospital. The complaint asserted that
CarePoint and its personnel knew or should have known that the roommate
posed a danger to plaintiff and they negligently failed to protect plaintiff.
Among other allegations, plaintiff asserts that CarePoint and its personnel had
actual or constructive knowledge of the roommate's "dangerous propensities"
and those propensities created a foreseeable risk to plaintiff. Plaintiff also
asserted claims for negligent and intentional infliction of emotional distress.
After the complaint was filed, plaintiff died. Consequently, her estate is now
pursuing her claims.
CarePoint filed an answer in June 2017. In its answer, CarePoint made a
demand that an affidavit of merit be filed within sixty days. No affidavit of
merit was filed. Thus, in March 2018, CarePoint filed a motion to dismiss
plaintiff's complaint because plaintiff had failed to submit an affidavit of merit.
Plaintiff opposed that motion arguing that an affidavit was not necessary
A-4268-17T3
3
because her allegations were based on general negligence, rather than medical
malpractice.
In support of its motion to dismiss, CarePoint contended that plaintiff was
at the hospital because she had broken her leg. CarePoint also asserted that the
roommate pulled plaintiff by her legs "in an apparently misguided attempt" to
assist plaintiff to go to the bathroom. Those factual allegations were not set
forth in any pleading or certification. Instead, they were contained in a reply
letter brief submitted by counsel for CarePoint.2
On April 13, 2018, the court entered an order dismissing plaintiff's
complaint with prejudice. On that same day, the court set forth the reasons for
its ruling on the record, without hearing oral arguments and without any
appearance by counsel or the parties. In its oral decision, the court reasoned that
plaintiff needed to show a deviation from a professional standard of care to
pursue claims against CarePoint and its personnel. In that regard, the trial court
reasoned:
2
In her complaint, plaintiff identified the roommate as a defendant, but
apparently did not know the roommate's name because she was identified as
"Jane Doe Assailant." CarePoint asserted a crossclaim against the roommate.
CarePoint disclosed the name of the roommate in the papers it filed in support
of its motion to dismiss. Counsel for plaintiff and CarePoint informed us that
the roommate was never served with the complaint or crossclaim and she has
never been joined in the action.
A-4268-17T3
4
Here, the only method by which the plaintiff can
establish a cause of action successfully against the
hospital is proof of a deviation of a standard of care
regarding training or supervision of the healthcare staff
as to the screening of the mental status of the roommate,
as well as the consequent placement decisions. This
would require expert testimony, and, as such, the need
for an [a]ffidavit of merit.
Because plaintiff had submitted no affidavit of merit within the time prescribed,
the trial court dismissed all of plaintiff's claims. Plaintiff now appeals.
II.
On appeal, plaintiff makes two arguments. She contends that the trial
court erred in dismissing her complaint because (1) her claims did not require
an affidavit of merit; and (2) the trial court inappropriately relied on information
outside the pleadings and effectively considered the motion as a motion for
summary judgment without allowing plaintiff an opportunity to oppose
summary judgment.
We use a de novo standard to review the dismissal of a complaint for
failure to state a claim. J-M Mfg. Co., Inc. v. Phillips & Cohen, LLP, 443 N.J.
Super. 447, 453 (App. Div. 2015) (citing Donato v. Moldow, 374 N.J. Super.
475, 483 (App. Div. 2005)). Our inquiry is focused on "examining the legal
sufficiency of the facts alleged on the face of the complaint." Green v. Morgan
Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp
A-4268-17T3
5
Elecs. Corp., 116 N.J. 739, 746 (1989)). Thus, we 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[.]" Major v.
Maguire, 224 N.J. 1, 26 (2016) (quoting Printing Mart-Morristown, 116 N.J. at
746). "At this preliminary stage of the litigation the [c]ourt is not concerned
with the ability of plaintiffs to prove the allegation contained in the complaint.
For purposes of analysis plaintiffs are entitled to every reasonable inference of
fact." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349
(App. Div. 2012) (quoting Printing Mart-Morristown, 116 N.J. at 746).
The affidavit of merit statute provides, in relevant 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 [or her] profession or occupation, the
plaintiff shall, . . . 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.]
An affidavit must be filed within sixty days of the filing of an answer.
Ibid. If, however, an affidavit is provided after sixty days, but within 120 days
A-4268-17T3
6
after an answer is filed, the affidavit will be deemed timely, provided (1) leave
to file is sought, and (2) good cause for the delay is established. Paragon
Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citing
Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). The purpose of the statute is
"to weed out frivolous claims against licensed professionals early in the
litigation process." Meehan v. Antonellis, 226 N.J. 216, 228 (2016) (citing
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003)).
"[S]ubmission of an appropriate affidavit of merit is considered an
element of the claim." Ibid. Accordingly, if an affidavit is not provided within
120 days of the answer, the claims will generally be dismissed with prejudice.
Paragon, 202 N.J. at 422 (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218,
247 (1998)).
Not every claim against a licensed person requires an affidavit of merit.
A plaintiff does not need an affidavit if defendant's negligence is a matter of
common knowledge. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001)
(citing Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001)). 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
A-4268-17T3
7
specialized knowledge of experts." Hubbard, 168 N.J. at 394 (quoting Estate of
Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). Thus, even when
claims of simple negligence are asserted against a licensed medical facility, such
as a hospital, an affidavit of merit is not required because jurors are competent
to assess simple negligence occurring in a hospital without expert testimony to
establish a standard of care. See Nowacki v. Cmty. Med. Ctr., 279 N.J. Super.
276, 292 (App. Div. 1995).
Determining whether a matter alleges professional negligence or ordinary
negligence involves scrutiny of the legal claims alleged. Couri v. Gardner, 173
N.J. 328, 340-41 (2002). A court must consider "whether a claim's underlying
factual allegations require proof of a deviation from a professional standard of
care," or ordinary negligence, as only the former claims require an affidavit of
merit. Id. at 341. To make that determination, our Supreme Court has
explained:
There are three elements to consider when analyzing
whether the [affidavit of merit] 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
A-4268-17T3
8
professional or occupational standards or treatment
practices" (standard of care).
[Id. at 334 (quoting N.J.S.A. 2A:53A-27).]
"It is not the label placed on the action that is pivotal but the nature of the
legal inquiry." Id. at 340. Identifying the nature of the legal inquiry is a question
of law that the court makes. Ibid.
Here, plaintiff contends she is not making malpractice claims against
CarePoint. Instead, she is asserting simple or ordinary negligence; that is,
CarePoint and its personnel knew or should have known that the roommate was
dangerous and that she posed a risk of harming plaintiff. Moreover, plaintiff
asserts that CarePoint was negligent in not protecting plaintiff from a
foreseeable risk. A generous reading of plaintiff's complaint support s a claim
of simple negligence.
The success of such a simple negligence claim will depend on why the
roommate "assaulted" plaintiff and whether CarePoint or its personnel knew or
should have known that the roommate might assault plaintiff. The current record
does not contain that information. Instead, that information will have to be
developed through discovery. On this appeal, we hold only that plaintiff is to
be given an opportunity to take discovery to see if she can establish her claims
of simple negligence.
A-4268-17T3
9
We further note, however, that by not producing an affidavit of merit,
plaintiff has foreclosed her opportunity to assert any claim based on a deviation
from a professional standard of care. See Murphy v. New Road Constr., 378
N.J. Super. 238, 243 (App. Div. 2005) (explaining that when a plaintiff does not
produce a timely affidavit of merit, he or she will "have placed all his [or her]
eggs in the ordinary negligence basket"). Consequently, on remand, plaintiff
can only pursue claims of simple negligence, and she will be precluded from
relying on any claim of a deviation from a professional standard or offering an
expert to discuss such a deviation.
Reversed and remanded. We do not retain jurisdiction.
A-4268-17T3
10
J.M. VS. IJKG-OPCO, LLC, D/B/A CAREPOINT HEALTH BAYONNE MEDICAL CENTER (L-4792-16, HUDSON COUNTY AND STATEWIDE)
Combined Opinion