The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) decided in its opinion published on September 6, 2018 that the “common knowledge” exception relieved the New Jersey medical malpractice plaintiffs of the obligation to serve an affidavit of merit (“AOM”) as required by the Affidavit of Merit Statute (“AMS”), N.J.S.A. 2A:53A-26 to -29, and held 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 Underlying Facts
The New Jersey medical malpractice plaintiff was admitted to the defendant hospital 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 for which a doctor performed a procedure to remove her gallstones, and a physician’s order was written requiring that a nasogastric (NG) tube be inserted.
Pursuant to the physician’s order, a nurse inserted the NG tube. The physician’s order did not address reinsertion of the tube if it fell out or was otherwise removed. According to the defendant hospital’s records, the plaintiff pulled out the tube less than two days later and refused replacement. The plaintiffs alleged in their New Jersey medical malpractice lawsuit that the nurses did not reinsert the tube nor did they contact anyone for instructions, including the physician who ordered the NG tube.
The plaintiff subsequently underwent surgery for a bowel obstruction and by the time she was discharged from the defendant hospital, she was diagnosed with twelve different medical conditions. Afterward, the plaintiff suffered various post-operative complications that she alleges resulted from the defendants’ failure to to comply with the physician’s order for the NG tube and that while the NG tube was out, the plaintiff aspirated and significantly deteriorated.
The defendants filed a motion to dismiss the complaint based upon the plaintiffs’ failure to serve an AOM. The plaintiffs’ New Jersey medical malpractice attorney responded that the matter presents a common knowledge case that relieved them of the obligation to serve an AOM.
The motions judge determining the defendants’ motion to dismiss found that there was no dispute that the NG tube was placed pursuant to the physician’s order, when the tube was removed that the order was continuing, and that there was a continuing obligation to insert the tube. The motions judge further found that it was not relevant how the tube was removed or whether the plaintiff actually refused replacement.
The motions judge concluded, however, that a jury cannot make a determination in this case without knowing what a nurse should do when a NG tube is inserted pursuant to an order but subsequently comes out. The motions judge held that under these circumstances, 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. The motions judge therefore dismissed the plaintiffs’ New Jersey medical malpractice complaint, and the plaintiffs appealed.
New Jersey Appellate Court Opinion
The New Jersey Appellate Court stated that the purpose behind the AMS is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones; 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.
The New Jersey Appellate Court stated that “common knowledge cases” involve obvious or extreme error and that the common knowledge doctrine 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, and is appropriately invoked where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.
The New Jersey Appellate Court stated that the “plaintiffs’ claim in this case presents the circumstance of an alleged obvious act of omission, rather than an affirmative action that clearly bespoke negligence.” The New Jersey Appellate Court held: “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 termination of [the plaintiff’s] medical treatment that was required by the physician charged with her care.”
The New Jersey Appellate Court warned, however: “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.”
Source Cowley v. Virtua Health System, Docket No. A-4004-16T4.
If you or a loved one may have been harmed as a result of medical malpractice in a hospital in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your hospital malpractice claim for you and represent you in a hospital medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.