New Jersey Team Secures Appellate Win in Healthcare Matter Involving Affidavit of Merit Statute

Newark, N.J. (September 29, 2022) - Newark Administrative Partner and Co-Chair of Lewis Brisbois' National Healthcare Practice Malinda A. Miller, with Partners Alex W. Raybould and S. Christopher Martino, recently secured a significant appellate victory on behalf of an assisted living facility when the New Jersey Appellate Division affirmed a trial court’s order dismissing the plaintiff’s complaint with prejudice for failure to comply with New Jersey’s Affidavit of Merit Statute.

In this matter, the plaintiff asserted various claims of negligence against the facility for its alleged failure to prepare for and respond to the COVID-19 pandemic. The plaintiff contended that this negligence resulted in the plaintiff’s decedent contracting and ultimately succumbing to the virus in Spring 2020. The Lewis Brisbois team, on behalf of the defendant, subsequently asserted a timely affirmative defense that the plaintiff failed to provide an Affidavit of Merit from a sufficiently licensed professional to proceed with his claims.

Following multiple conferences pursuant to Ferreira v. Rancocas Orthopedic Assoc., 178 N.J. 144 (2003), Lewis Brisbois' attorneys successfully moved to dismiss the matter with prejudice. The lower court rejected the plaintiff’s argument that the affiant was sufficiently qualified to offer an opinion with respect to the standard of care, and alternatively, that assisted living facilities did not qualify as “licensed persons” for purposes of the Affidavit of Merit Statute. The plaintiff appealed.

On appeal, the Appellate Division affirmed the trial court’s decision in toto finding both that the plaintiff was required to obtain an Affidavit of Merit pursuant to the statute and that the plaintiff’s affiant was not sufficiently qualified to offer opinions with respect to the standard of care attributable to assisted living facilities.

The Appellate Division’s decision is noteworthy insofar as the panel conclusively found that assisted living facilities qualify as “health care facilities” pursuant to N.J.S.A. 25:2H-2, thereby requiring plaintiffs to obtain affidavits of merit for allegations of professional negligence as per N.J.S.A. 2A:53A-27.

Ms. Miller is a co-chair of the firm's Healthcare, Medical Malpractice, and Long-Term Care Practices. She has a depth of experience defending long-term care and assisted living facilities, physicians, nurses, CNAs, medical groups, and healthcare facilities in medical negligence and related claims involving a wide array of medical specialties. Ms. Miller is the preferred counsel for some of the largest long-term care operators in the tri-state area.

Mr. Raybould is a member of the firm's Healthcare, Medical Malpractice, and Long-Term Care Practices. He focuses his practice on the representation of complex corporate clients in the field of long-term care and civil litigation.

Mr. Martino is a member of the firm's Professional Liability Practice. He focuses his practice on a variety of civil litigation defense matters, routinely representing skilled nursing and assisted living facilities facing professional negligence claims, as well as physicians, nurses, and medical facilities in medical malpractice actions.

For more information about the implications of this appellate decision, contact any of the partners involved.