NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1349-19T3
TROY HAVILAND,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, January 27, 2021
APPELLATE DIVISION
v.
LOURDES MEDICAL CENTER OF
BURLINGTON COUNTY, INC., 1
Defendant-Respondent.
______________________________
Argued November 12, 2020 – Decided January 27, 2021
Before Judges Fuentes, Rose and Firko.
On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Docket No. L-
0782-19.
Michael J. Weiss argued the cause for appellant.
Sharon K. Galpern argued the cause for respondent
(Stahl & DeLaurentis, PC, attorneys; Sharon K.
Galpern, on the brief).
The opinion of the court was delivered by
ROSE, J.A.D.
1
Improperly pled as Lourdes Medical Center at Burlington, Department of
Radiology and Imaging and/or Lourdes Health System, j/s/a.
This appeal presents a discrete yet novel issue, requiring us to determine
whether an affidavit of merit (AOM) is mandated under the Affidavit of Merit
Statute (AMS), N.J.S.A. 2A:53A-26 to -29, when a plaintiff's sole claim
against a health care facility, which is defined as a licensed person under the
AMS, is vicarious based on the alleged medical negligence of an employee,
who is not a licensed person within the meaning of the AMS and as to who m
no AOM is required. For the reasons that follow, we hold an AOM is not
required in those specific circumstances. We therefore reverse the order under
review, and remand for reinstatement of the complaint.
We summarize the facts from the limited record before the motion judge
in a light most favorable to the non-moving plaintiff. R. 4:46-2(c); see also
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On April 15,
2019, plaintiff Troy Haviland filed a one-count complaint, alleging he was
injured at Lourdes Medical Center of Burlington County, Inc. (Lourdes) the
previous year. During a radiological examination of his left shoulder on
February 23, 2018, an unidentified technician asked plaintiff to "hold weights
contrary to the [ordering physician's] instructions," causing injuries that
thereafter required surgical repair of plaintiff's shoulder. Plaintiff's complaint
alleged John Doe and Lourdes "fail[ed] to properly perform . . . imaging and
otherwise deviated from accepted standards of medical care," thereby
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proximately causing plaintiff to suffer serious personal injuries. Plaintiff also
claimed Lourdes was vicariously liable for Doe's negligent acts, as its "agent,
servant and/or employee."
Lourdes filed its answer on June 10, 2019. The Law Division twice
notified plaintiff that an AOM was required by August 9, 2019. See N.J.S.A.
2A:53A-27 (mandating service of an AOM within sixty days of the filing of
defendant's answer). Plaintiff neither filed an AOM nor appeared at the initial
court-ordered Ferreira2 conference on August 7, 2019. Thereafter, Lourdes
consented to the remaining sixty-day extension for service of the AOM under
N.J.S.A. 2A:53A-27 (permitting one additional sixty-day period to provide an
AOM for good cause); see also Ferreira, 178 N.J. at 150.
Three days before the October 10, 2019 deadline, the trial court
conducted the Ferreira conference, during which plaintiff apparently advised
he was proceeding against Lourdes only under a vicarious liability theory and,
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). In Ferreira,
the Court mandated a "'case management conference be held within ninety
days of the service of an answer' at which the professional defendant would
raise 'any objections to the adequacy of the affidavit' served by the plaintiff . . .
[if] deficient, then the plaintiff would 'have to the end of the 120-day time
period to conform the affidavit to the statutory requirements.'" Buck v. Henry,
207 N.J. 377, 382 (2011) (quoting Ferreira, 178 N.J. at 154-55).
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3
as such, an AOM was unnecessary. 3 Notably, a radiology technician is not
listed as one of the seventeen "licensed person[s]" defined in section 26 of the
AOM statute. Lourdes, however, meets the definition of "a health care
facility" under the AMS, thereby requiring an AOM when a plaintiff alleges
the facility committed an "act of medical malpractice or negligence." N.J.S.A.
2A:53A-26(j).
Lourdes thereafter moved to dismiss plaintiff's complaint with prejudice
for his failure to provide an AOM. During oral argument before the motion
judge, who had conducted the Ferreira conference, plaintiff asserted an AOM
was not required because he had since abandoned his medical negligence and
negligent supervision or hiring claims. Instead, plaintiff reiterated his theory
of liability against Lourdes was limited to its responsibility for the radiology
technician's alleged medical negligence under the doctrine of respondeat
superior. Counsel emphasized: "The only basis for imposing liability" was
that Lourdes employed the technician who "erred, hence [Lourdes was]
responsible by reason of a theory of vicarious liability, nothing more."
Plaintiff therefore no longer alleged Lourdes directly or indirectly deviated
from the professional standard of care.
3
It is unclear from the record on appeal whether the Ferreira conference was
conducted on the record; the parties have not provided a transcript of the
conference.
A-1349-19T3
4
During colloquy, the motion judge noted plaintiff's "logical" argument,
but determined an AOM was required from "another radiologist" 4 here, where
plaintiff underwent a "medical procedure" at Lourdes. In that regard, the judge
distinguished plaintiff's cause of action from a slip and fall accident on the
health care facility's premises, which would not trigger application of the
AMS. See N.J.S.A. 2A:53A-27. The judge determined she was bound by our
decision in Borough of Berlin v. Remington & Vernick Engineers, 337 N.J.
Super. 590 (App. Div. 2001). At the conclusion of argument, the judge
granted defendant's motion to dismiss the complaint and issued the November
25, 2019 order that accompanied her oral pronouncement. This appeal
followed.
On appeal, plaintiff reprises the arguments asserted before the motion
judge, claiming our precedent – including Berlin – supports his position that
no AOM was required to establish Lourdes's vicarious liability. Based on our
de novo review of the legal issue presented on appeal, in view of the motion
record and governing legal principles, see Meehan v. Antonellis, 226 N.J. 216,
4
A radiologist is a physician, for whom an AOM is required. See N.J.S.A.
2A:53A-26(f); see generally Galik v. Clara Maass Med. Ctr., 167 N.J. 341
(2001). Defendant did not dispute plaintiff's contention that a radiology
technician performed the "radiological examination of [plaintiff's] left
shoulder," or that a radiology technician is not a licensed person as defined
under N.J.S.A. 2A:53A-26.
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230 (2016), we conclude an AOM was not required under the circumstances
presented here.
Our Supreme Court has chronicled the history and requirements of the
AMS. See, e.g., id. at 220; Ferreira, 178 N.J. at 149; Alan J. Cornblatt, P.A. v.
Barow, 153 N.J. 218, 224 (1998). We need not reiterate those details for
purposes of our decision; we recognize the AMS statute was "designed to
'strike[] a fair balance between preserving a person's right to sue and
controlling nuisance suits.'" Palanque v. Lambert-Woolley, 168 N.J. 398, 404
(2001) (quoting Office of the Governor, News Release 1 (June 29, 1995)). We
are likewise mindful that the Legislature intended to ensure "the resources and
time of the parties will not be wasted by the continuation of unnecessary
litigation," including the "expensive and burdensome discovery process."
Knorr v. Smeal, 178 N.J. 169, 176 (2003).
Generally, through enactment of the AMS, "the Legislature established a
procedure that required a person alleging that certain designated professionals
negligently performed professional services to produce an affidavit from an
expert attesting to the merits of the claim." Meehan, 226 N.J. at 230. Relevant
here, the AMS requires service of an AOM "[i]n 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." N.J.S.A. 2A:53A -27.
A-1349-19T3
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The term "licensed person" is defined in section 26 of the AMS and is
expressly limited to sixteen individual professionals, and "a health care
facility." N.J.S.A. 2A:53A-26.
For purposes of this appeal, the parties do not dispute that Doe was a
radiology technician at the time he performed plaintiff's radiological
examination. It is further undisputed that a radiology technician is a health
care professional who does not fall within the definitions of a licensed person
under the AMS. See N.J.S.A. 2A:53A-26. Accordingly, the parties agree that
an AOM was not required for plaintiff's claims of medical negligence against
the radiology technician. 5
Conversely, Lourdes is a licensed health care facility, within the
definition of a licensed person under the AMS. N.J.S.A. 2A:53A-26(j).
Plaintiff does not dispute that an AOM was required for his initially-pled
direct claims of medical negligence against Lourdes. See N.J.S.A. 2A:53A-27
(requiring the plaintiff in a professional negligence action to "provide each
defendant with an affidavit of an appropriate licensed person [opining] 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,
5
During oral argument before the motion judge, plaintiff's counsel stated he
had identified Doe, but plaintiff did not intend to amend his complaint to name
the technician at that time. See R. 4:26-4.
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fell outside acceptable professional or occupational standards or treatment
practices"). Plaintiff maintains, however, that an AOM is not required here,
where his claims are purely vicarious against Lourdes.
"Although as a general rule of tort law, liability must be based on
personal fault, the doctrine of respondeat superior recognizes a vicarious
liability principle pursuant to which a master will be held liable in certain
cases for the wrongful acts of his [or her] servants or employees." Carter v.
Reynolds, 175 N.J. 402, 408 (2003). Under this doctrine "an employer can be
found liable for the negligence of an employee causing injuries to third parties,
if, at the time of the occurrence, the employee was acting within the scope of
his or her employment." Id. at 408-09. To establish vicarious liability, a
plaintiff therefore "must prove (1) that a master-servant relationship existed
and (2) that the tortious act of the servant occurred within the scope of that
employment." Id. at 409. Therefore, the employer's standard of care is not
directly implicated, but is imputed from that of its employee.
Neither the Supreme Court nor this court has directly considered
whether an AOM is required where a plaintiff's sole theory of liability against
a licensed entity is vicarious based upon the alleged medical negligence of an
unlicensed person. "In the absence of controlling precedent, we conduct our
own examination of the [AMS] and of the discrete circumstances before us."
A-1349-19T3
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Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP,
416 N.J. Super. 1, 21 (App. Div. 2010). When conducting that analysis, we
consider the Legislature's intent. Ibid. And "the best indicator of that intent is
the statutory language." Soto v. Scaringelli, 189 N.J. 558, 569 (2007); see also
Meehan, 226 N.J. at 232.
Based on our review of the relevant provisions of the AMS, we initially
observe the Legislature expressly enumerated nearly twenty professionals,
including a health care facility, within the definition of a licensed person as
used in the AMS. Radiology technicians were excluded from that definition.
"We infer, through well-established law, that the omission was intentional."
State v. N.T., 461 N.J. Super. 566, 572 (App. Div. 2019), certif. denied, 241
N.J. 338 (2020) (citing Ryan v. Renny, 203 N.J. 37, 58 (2010)).
Secondly, having abandoned his direct liability claims against Lourdes,
plaintiff's remaining claims arose solely from the technician's alleged medical
negligence; plaintiff no longer claimed Lourdes deviated from its professional
standards. Plaintiff likewise relinquished his negligent supervision and hiring
allegations. Under plaintiff's remaining vicarious liability theory, Lourdes
only may be held liable for the radiology technician's alleged medical
negligence if plaintiff was injured while Doe was "acting within the scope of
his . . . employment" with Lourdes. Carter, 175 N.J. at 409.
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We have repeatedly utilized the principles governing vicarious liability
to govern the application of the AOM statute, albeit in different contexts than
the circumstances presented here. In Berlin, we considered whether the
municipal plaintiff's AOM substantially complied with the AMS where the
plaintiff sued the corporate engineering firm for negligence in the plan and
design of water wells. 337 N.J. Super. at 592-93. The plaintiff did not sue the
hydrogeologist, who performed most of the work. See id. at 593.
Instead, the plaintiff claimed the defendant engineering firm was
responsible "under respondeat superior, for its hydrogeologist's negligent
siting of the well." Id. at 597. The plaintiff provided an AOM from an expert
hydrogeologist, who is not a licensed person under the AMS. Id. at 595. We
held the plaintiff properly supplied the defendant engineering firm wit h an
AOM from a hydrogeologist, where only the firm was sued because the "[t]he
liability pressed against the engineering firm [wa]s solely vicarious." Id. at
598.
Nine years later, we considered whether an AOM was required where the
plaintiff sued only the defendant law firms, based on the "allegedly negligent
omissions by a [deceased] patent attorney who had worked, in succession, at
the two law firms." Shamrock Lacrosse, 416 N.J. Super. at 4. The plaintiff
argued it was not required to provide an AOM because N.J.S.A. 2A:53A-26(c)
A-1349-19T3
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listed only "an attorney" and not a law firm as a "licensed person" entitled to
an AOM. Id. at 16. We rejected that claim, emphasizing "if plaintiff's reading
of the statute were accepted, that individualized protection would provide no
solace to a law firm that could have vicarious liability for the actions or
inactions of the licensed attorneys employed by, or affiliated with, that firm."
Id. at 22. We rejected that result because the plaintiff sought "to invoke
principles of vicarious liability . . . to make those law firms financially
accountable for the harm that" their employees caused. Id. at 23.
More recently, in Hill International, Inc. v. Atlantic City Board of
Education, we explained our conclusion in Berlin:
By the same logic [as our conclusion in Berlin], an
AOM from a like-licensed architect would not be
necessary to support a plaintiff's claim for damages
against an architect or an architecture firm whose
employee or agent had acted negligently if the claim
were solely based upon a theory of vicarious liability
or agency. In that instance, however, the plaintiff
would need to obtain an AOM from an expert with the
same kind of professional license as the negligent
employee or agent if he or she individually was acting
within the scope of a profession listed within the
categories set forth in N.J.S.A. 2A:53A-26.
[438 N.J. Super. 562, 592-93 (App. Div. 2014)
(emphasis added).]
Accordingly, in Hill, we suggested an AOM only was required for
vicarious liability and agency theories asserted against a professional entity,
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where its allegedly negligent professional employee fell within the definition
of a licensed person under section 26 of the AMS. Ibid. Two years later,
citing our decision in Berlin, we recognized an AOM is "required when the
plaintiff's claim of vicarious liability hinges upon allegations of deviation from
professional standards of care." McCormick v. State, 446 N.J. Super. 603, 615
(App. Div. 2016).
In McCormick, a prisoner sued the State alleging negligent treatment by
the prison's contract medical staff. Id. at 607-08. We upheld the trial court's
conclusion that an AOM was required, thereby rejecting plaintiff's contentions
that he could avoid the requirement because he only sued the publi c entity,
which was not a "licensed person" under the AMS. Id. at 610. We recognized
"[i]f 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." Id. at 614.
We therefore held in McCormick 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" in their capacity as licensed persons. Id. at
617. In doing so, we recognized "[t]he State employs or utilizes through
contracts a host of licensed professionals[,]" which "include doctors, nurses,
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therapists, counselors, engineers, and scores of other licensees encompassed
within the broad sweep of [section 26 of] the AOM statute." Id. at 613.
We now hold what we suggested in McCormick. An AOM is not
required for a health care facility when the plaintiff's claims in a medical
negligence action are limited to vicarious liability for the alleged negligence of
its employee, who does not meet the definition of a licensed person under
section 26 of the AMS. In reaching our decision, we agree with the motion
judge that this approach is logical under the specific circumstances presented
here. We express no opinion as to whether plaintiff would need to present
expert testimony on radiology standards of care to meet his burden of proof at
trial.
Reversed and remanded. We do not retain jurisdiction.
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