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Affidavit Of Merit Statute Eroded Further (NJ)

April 15, 2022

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<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2022/04/Haviland-v.-Lourdes-Medical-Center-of-Burlington-County-Inc..pdf">Haviland v. Lourdes Medical Center of Burlington County, Inc.</a></em>, the plaintiff was injured after being instructed by an unlicensed radiology technician to hold weights while undergoing a radiological imaging examination.  The plaintiff had undergone a left shoulder surgery shortly before the exam.  The Plaintiff thereafter alleged that he sustained injuries as a result of holding the weights as directed during the exam.</p>
<p style="text-align: justify;">The plaintiff sued the medical center and its unidentified, unlicensed radiology technician.  He claimed the radiology technician instructed plaintiff to hold weights contrary to the ordering physician’s instructions.  He further alleged that the unnamed radiology technician negligently performed the radiology exam.</p>
<p style="text-align: justify;">At the trial court stage, the medical center successfully moved to dismiss the complaint because plaintiff failed to provide an affidavit of merit.  By way of context, in New Jersey, an affidavit of merit authored by an expert in the relevant field is required to pursue to a professional malpractice claim.  However, despite this clear statutory language, this requirement has been consistently eroded.</p>
<p style="text-align: justify;">Here, the Appellate Division reversed, holding that an affidavit of merit is not required when a plaintiff’s claim against a licensed entity (e.g. the licensed employer of an unlicensed person) is limited solely to vicarious liability of an unlicensed employee.  Here, the Court examined the relevant statute, and held that the allegedly negligent employee did not qualify as a licensed person under the affidavit of merit statute.</p>
<p style="text-align: justify;">The Supreme Court affirmed, holding that the affidavit of merit statute does not require submission of an affidavit of merit to support a vicarious liability claim against a licensed health care facility based only on the conduct of its non-licensed employees.</p>
<p style="text-align: justify;">This case from the Supreme Court will undoubtedly make it easier for plaintiffs to sue professional companies when their non-professional, non-licensed employees do something negligent.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this article.  Should you wish to discuss, please feel free to contact <a href="mailto:mcare@wcmlaw.com">Matthew Care</a>.</p>

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