Anthony McCormick v. State of New Jersey

Citations: 446 N.J. Super. 603; 144 A.3d 1260Docket: A-3493-14T2

Court: New Jersey Superior Court Appellate Division; August 25, 2016; New Jersey; State Appellate Court

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The appeal involves Anthony McCormick, a State prisoner, against the State of New Jersey regarding the requirement of an Affidavit of Merit (AOM) under N.J.S.A. 2A:53A-26 to -29. McCormick alleges negligence by licensed professionals contracted to provide medical services at South Woods State Prison, claiming he suffered from severe headaches without proper diagnosis or treatment, ultimately leading to a brain abscess. The court addresses whether McCormick can avoid the AOM requirement by suing only the public entity instead of the individual medical professionals. The court determined that such circumvention is impermissible, affirming the trial court's ruling that an AOM was necessary. However, the case is remanded for further proceedings to evaluate whether the dismissal of the lawsuit is warranted. McCormick filed a tort claim in October 2010 and subsequently a complaint against the State in June 2012, without naming any medical professionals or using fictitious parties as allowed by court rules.

In count one of the complaint, the plaintiff accused the medical staff at South Woods of carelessness, recklessness, and negligence in the treatment of his cerebral condition, resulting in severe, permanent injuries. In count two, he claimed violations of his rights under both federal and state constitutions, as well as the New Jersey Civil Rights Act (CRA), based on the same facts. Notably, UMDNJ and Rutgers University Correctional Health Care were not mentioned in the factual claims. The lawsuit was temporarily moved to federal court at the State's request, but the plaintiff successfully remanded it back to state court. The State then sought summary judgment, which was partially granted, dismissing the federal claims, while remanding the remaining state law claims to the Law Division. 

The State subsequently filed a motion to dismiss, asserting it had not received timely notice of a tort claim, but this was denied. Around this time, the plaintiff voluntarily dismissed his state constitutional and CRA claims. The State filed another motion to dismiss count one on the grounds of non-vicarious liability for UMDNJ employees' actions, which was also denied. After answering the complaint and denying liability, the State filed a third motion to dismiss, arguing the plaintiff failed to serve an Affidavit of Merit (AOM) as required under N.J.S.A. 2A:53A-27. The plaintiff contended he was not required to submit an AOM because the State was not classified as a "licensed professional" or "health care facility." 

Judge Richard J. Geiger granted the State's motion, dismissing the complaint with prejudice, reasoning that claims against licensed professionals necessitate a timely AOM from a qualified expert. The plaintiff's motion for reconsideration was denied. He appealed, arguing that he was not legally obligated to submit an AOM against the State and requested the opportunity to obtain one if the court found such an obligation existed. He also noted that the State did not raise the AOM requirement in its answer and that the trial court failed to conduct a 'Ferreira conference' that could have informed him of this need sooner. The Supreme Court has indicated that the AOM statute aims to eliminate frivolous claims against licensed professionals early in litigation, and failure to submit a required AOM typically results in dismissal of the complaint with prejudice.

Section 27 of the AOM statute mandates that in personal injury actions alleging malpractice or negligence, plaintiffs must provide defendants with an affidavit from a licensed professional within 60 days after the defendant's answer to the complaint. This affidavit must establish a reasonable probability that the care in question fell below acceptable professional standards. The statute defines "licensed person" to include various health care providers and facilities. The plaintiff argues that he is exempt from this requirement because the State, as the sole defendant, is not a "licensed person" or a "health care facility" under the statute. However, the court counters that the medical staff involved in the plaintiff's care qualifies as "licensed persons," and the plaintiff cannot circumvent the AOM requirements by solely suing the public entity responsible for hiring these professionals. The court references previous cases, such as Albrecht v. Corr. Med. Servs. and Shamrock Lacrosse, Inc. v. Klehr, Harrison, emphasizing that the focus of the AOM requirement is on the harm caused by the licensed professionals, not the legal status of the entities being sued. Thus, the State, through its employment and contracts with licensed professionals, remains subject to the AOM statute.

Professionals serving public entities, such as the State, must adhere to standards of care relevant to their licensure. If a plaintiff seeks to hold a public entity liable for harm caused by a professional's negligent conduct, an Affidavit of Merit (AOM) from a qualified expert is required to support the lawsuit, regardless of whether the negligent professionals are named as co-defendants. This requirement cannot be bypassed by suing only the public entity. AOMs are necessary only if the harmful conduct involves professional negligence; for instance, if a nurse's actions do not meet professional standards, such as simply stumbling or spilling coffee, an AOM is not needed. The specificity of the AOM requirement is tied to the nature of the harmful conduct and whether it implicates professional standards. Claims based on common knowledge also do not require an AOM. The court emphasizes that the need for an AOM is fact-sensitive and dependent on individual case circumstances. Even when pursuing a theory of vicarious liability under the Tort Claims Act, an AOM is necessary if the claim is based on professional negligence. Furthermore, the State can be vicariously liable for the acts of its employees, but not for independent contractors' actions, and it retains a constitutional obligation to provide adequate medical care to inmates, regardless of contracting arrangements.

The duty in question is 'non-delegable,' making the hiring party liable for an independent contractor's negligence, an exception to the general rule. In Borough of Berlin v. Remington, Vernick Engineers, the court considered malpractice claims against an engineering firm for not following hydrogeologic guidelines while applying for a water allocation permit, resulting in the negligent siting of wells. The plaintiff obtained an Affidavit of Merit (AOM) from a hydrogeologist, which the defendant contested as inadequate, claiming it should have been from a professional engineer. The court upheld that the hydrogeologist was sufficiently licensed to provide the AOM, emphasizing that the required qualifications for an AOM are not strictly limited to the primary specialty of the defendant's profession. The court confirmed that an AOM was necessary in this context of vicarious liability.

The appeal also questioned the trial court's dismissal of the lawsuit, with the plaintiff arguing he was denied a fair chance to obtain an AOM. He pointed out that the State did not raise the absence of an AOM as an affirmative defense and highlighted the trial court's failure to hold a Ferreira conference, which is crucial for clarifying AOM requirements before the statutory deadline. The court referenced its earlier ruling in Meehan regarding the importance of conducting timely Ferreira conferences for the AOM statute's efficacy. Although the lack of such a conference was noted, it did not mandate a reversal since the AOM from a prosthodontist adequately supported the plaintiff's claims against the orthodontist. The court acknowledged that there was no prior published case specifically requiring an AOM in tort claims against public entities for staff negligence, suggesting the Ferreira conference may have been inconclusive under these circumstances. Additionally, the plaintiff's counsel was involved in a related unpublished appeal concerning similar issues of AOM in medical negligence claims against a public entity and its contractor.

Plaintiff's counsel appears to be pursuing a strategy of advancing 'test cases' to bypass the Affidavit of Merit (AOM) requirement by suing public entities instead of individual licensed medical professionals. It remains uncertain if this strategy is valid. The court notes that even if a Ferreira conference had occurred and a directive for an AOM was issued, it is unclear whether Mr. McCormick would have complied given his cognitive issues. Due to the insufficient record on the sanction issue, the matter is remanded for further proceedings, following guidance from the Supreme Court's opinion in Meehan. The trial court has the discretion to conduct a plenary hearing, allowing parties to submit additional briefs and certifications to evaluate whether the plaintiff should be granted a reasonable timeframe to rectify the AOM omission.

For future cases, when a plaintiff sues a public entity for medical malpractice based on vicarious liability, the defendant must identify the involved physicians and their specialties in their answer, as per Rule 4:5-3. The plaintiff is required to obtain and serve the relevant AOMs within sixty days of the answer's filing, in alignment with the qualifications disclosed by the defendant. The trial court may extend this period by an additional sixty days for good cause. A Ferreira conference must occur within ninety days of the answer, clarifying the plaintiff's obligations regarding the AOM and addressing any adequacy of previously obtained AOMs. The plaintiff has until the end of the 120-day period allowed by the AOM statute to correct deficiencies. The Ferreira conference aims to identify and resolve AOM-related issues but should not replace reasonable communication between counsel. If the conference does not resolve the plaintiff's need for additional information, the plaintiff must provide a sworn statement in lieu of the AOM until the necessary disclosures are made. The decision is affirmed in part and remanded in part, without retaining jurisdiction.