The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 only applies to health care facilities that have been duly “licensed as” such by the Department of Health and Senior Services. N.J.S.A. 2A:53A-26(j).
Additionally, where a question is raised about the status of a defendant in a malpractice action as a licensed person or health care facility and demands production of a license, the person or entity seeking a dismissal for failure to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-29 must submit competent evidential proof of its license.
The court rejected defendant’s argument the exceptions to license requirements established in Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1, 26-27 (App. Div. 2010), and Nagim v. N.J. Dep’t of Transit, 369 N.J. Super. 103, 109 (Law Div. 2003) are applicable.
While plaintiff was committed to the custody of the Department of Corrections (DOC), he came under the care of defendants George Achebe, M.D., and Raymundo Tagle, M.D. At that time, CMS was the sole provider of medical care to prisoners pursuant to a contract with the DOC. Plaintiff thereafter filed a complaint alleging that all three defendants failed to properly diagnose and treat his medical condition.
In answering the complaint, each defendant demanded an affidavit of merit (AOM). Plaintiff supplied an AOM as to Achebe and Tagle, but not as to CMS. Instead, plaintiff demanded a copy of CMS’s Department of Health and Senior Services (DHSS) license, but CMS did not produce one.
Key Take aways
- CMS argues that it is a “licensed person” because it is a “health care facility” as defined under N.J.S.A. 26:2H-2. It contends that the term “licensed health care facility” appears nowhere in N.J.S.A. 26:2H-2 or 2A:53A-26(j) and, thus, it does not have to prove it is “licensed.” Even if we were to assume that CMS engages in activities that make it a health care facility, that status alone does not entitle CMS to the protection of the AOM Statute
- To be a”licensed person” for the AOM Statute, one must do more than practice one of the enumerated professions one must also hold a valid license as a practitioner of one of those professions. Otherwise, unlicensed persons would be protected by the AOM Statute. See Shamrock Lacrosse, supra, 416 N.J. Super. at 26-27 (suggesting that attorney who unlawfully represents clients may not be protected by affidavit-of-merit requirement). We cannot construe the statute to reach such an absurd result. See In re Tenure Hearing of Young, 202 N.J. 50, 69 (2010) (counseling against interpretations that lead to absurd results)
- Shamrock and Nagim hold when a firm’s share holders are licensed persons under the statute, a plaintiff is required to provide an AOM in order to pursue litigation against the firm alone under respondeat-superior principles. The rule in these cases is implicitly limited to professional corporations because, by statute, professional corporations must be entirely owned by shareholders who are themselves licensed professionals. N.J.S.A. 14A:17-10(a)
Appellate Division decision
Plaintiff Jerald D. Albrecht appeals on leave granted from an interlocutory order dismissing his complaint as to defendant Correctional Medical Services (CMS) under the provisions of the Affidavit of Merit Statute (AOM Statute), N.J.S.A. 2A:53A-26 to -29. We conclude that CMS is not entitled to the protection of that statute and reverse and remand for reinstatement of plaintiff’s complaint.
This is an excellent, well-reasoned, decision construing the legislative intent regarding health care facilities and the affidavit of merit law.
I had a case with a lawyer, who told the court the health care facility he represented advised him the health care facility was duly licensed by the DHSS. Produce the license. Where’s the beef? Ultimately, it was proven his client played fast and loose with the truth. No license. No beef.
What’s the big deal? Produce the license.
“Can the waiver provision of the NJ Medical Care Access and Responsibility and Patients First Act (“ACT”) be applied to permit a non-board certified medical expert witness testify against a board certified physician?” The answer is…