NANA “NURII” HARRIS VS. ENGLEWOOD HEALTH (L-8403-18, BERGEN COUNTY AND STATEWIDE)

N
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2462-19

NANA "NURII" HARRIS,

          Plaintiff-Appellant,

v.

ENGLEWOOD HEALTH,
and ENGLEWOOD HOSPITAL
BEHAVIORAL HEALTH,

          Defendants,

and

ENGLEWOOD HOSPITAL
AND MEDICAL CENTER,

     Defendant-Respondent.
___________________________

                   Submitted January 5, 2021 – Decided March 29, 2021

                   Before Judges Gilson and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-8403-18.

                   Piro Zinna Cifelli, attorneys for appellant (Daniel R.
                   Bevere, of counsel and on the briefs).
             Clare & Scott, LLC, attorneys for respondent (John R.
             Scott, of counsel and on the brief).

PER CURIAM

      Plaintiff, a patient who was punched by another patient in a hospital's

behavioral-health unit, appeals an order dismissing direct and certain vicarious

claims against the hospital due to plaintiff's failure to serve a compliant affidavit

of merit and a subsequent order granting summary judgment as to the remaining

claims. Because we agree plaintiff was required to submit an affidavit of merit

and failed to submit a statutorily-compliant affidavit, we affirm.

                                         I.

      Plaintiff filed a complaint naming as defendants Englewood Health,

Englewood Hospital Behavioral Health, and Englewood Hospital and Medical

Center (collectively the "hospital" or "defendant"), as well as fictitiously named

defendants she described as "unknown nurses, orderlies and security officers

who were responsible for the safety and security of [p]laintiff." She alleged that

while she was a patient in the hospital's behavioral-health unit, another patient

assaulted her at night when she was in the recreation room. She made no other

allegations about the assault or about the other patient and did not contend




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defendants knew or should have known he was dangerous or posed a risk of

harm to plaintiff.

      In the first count of the complaint, plaintiff asserted the hospital was

negligent in that it failed to "provide adequate and proper security to [p]laintiff";

"abide by required protocols for patient safety"; and "monitor the activities of

patients in common spaces in the behavioral health unit" and "the movements of

patients between rooms in the behavioral health unit." In the second count,

plaintiff repeated those negligence claims against the fictitious defendants.

Plaintiff never moved to name a fictitious party and never identified any nurse,

orderly, or security officer who had acted negligently or had any involvement

whatsoever in the incident.

      The hospital filed an answer in which it demanded plaintiff serve an

affidavit of merit pursuant to the Affidavit of Merit Statute, N.J.S.A. 2A:53A-

26 to -29. Plaintiff's counsel responded in writing, relaying plaintiff's "position

that the claims asserted by [plaintiff] against [the hospital] are not professional

malpractice claims and therefore no [a]ffidavit of [m]erit is needed or

warranted." Despite that position, he enclosed an affidavit executed by Diane

E. Meehan, who identified herself as a registered nurse and family nurse

practitioner, not as a hospital administrator.


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      The affiant opined "there exists a reasonable probability that [the hospital]

failed to take appropriate measures to protect [plaintiff]" and "there is sufficient

evidence at this time to conclude that the care rendered by the [hospital] and its

staff was inappropriate and fell outside acceptable professional or occupational

standards or treatment practices." She did not identify by name, position, or

even general occupation any staff member who was negligent. She did not use

the word "nurse" or "nursing" to describe any staff member.

      The hospital objected on the grounds the affidavit failed to identify the

specific individuals whose negligence formed the basis of plaintiff's claims and

was executed by someone who was not qualified to render an opinion about

hospital policies or administration.     After plaintiff did not respond to that

objection, the hospital moved to dismiss "all alleged malpractice claims" based

on those purported deficiencies. The hospital argued plaintiff's affiant was not

qualified to opine about the subject plaintiff had complained about, that is,

security in a psychiatric ward, and had not opined about the subject for which

she was qualified, that is, whether a particular nurse had deviated from a

standard of care.

      Responding to the motion, plaintiff argued, among other things, she was

not required to serve an affidavit of merit because she had not filed a


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professional-malpractice case. In her brief, she advised the court she would not

object to an order "clarifying" plaintiff was not pursuing a "professional

negligence" claim and "that the only claims being pursued are those for

negligent security and general negligence." During oral argument, plaintiff's

counsel represented to the court "this is not a professional malpractice claim"

and "[w]e're not saying there was a deviation with regard to her medical

treatment and care." Plaintiff's counsel agreed with the court that: plaintiff was

"talking about the way the hospital ran the psych unit"; plaintiff had not

identified a specific nurse who allegedly was negligent and had not "put the

hospital on notice of what nurse [plaintiff's] expert is claiming deviated from

the standard of care"; plaintiff's "negligence claim against the hospital, itself,

for its own action . . . for the protocols that were put in place, for how it managed

that" was barred; and the only remaining claim was for the "negligent acts of

unlicensed employees for whose negligence the hospital as the employer may

be held responsible."

      Following that colloquy, the judge issued an order dismissing with

prejudice "all claims asserted against [the hospital] and/or any persons working

at [the hospital] for whom an [a]ffidavit of [m]erit is required." In the order the

judge expressly permitted plaintiff to pursue claims against the hospital "for


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                                         5
respondeat superior liability for non-professional (non-[a]ffidavit of [m]erit)

employees." Given plaintiff's written and oral presentation in response to the

motion, we can understand why the trial judge may have comprehended that

plaintiff agreed with her decision and the directives set forth in the order.

      In the course of discovery, plaintiff elaborated on her contentions. When

asked in an interrogatory to provide a "complete description of all security

measures" that should have been provided, what monitoring should have been

performed, and what "required protocols for patient safety" were not followed,

plaintiff responded:

            There should have been a security person present in the
            day room and that security person should have foreseen
            the pending altercation based upon the alarming
            conduct exhibited by the assailant as he approached the
            piano in a threatening manner and demanding that
            [p]laintiff stop playing; and intervened to prevent any
            potential physical contact. This answer is subject to
            continuing discovery.

When asked to identify "each negligent act and/or negligent omission that you

attribute to each defendant," plaintiff repeated the above answer and added:

            [S]ince the patient was a dementia patient, the patient
            should have been watched and guarded more carefully
            by hospital staff as the potential was present for violent
            acts such as were committed here. A member of the
            hospital staff, such as a security guard or orderly,
            should have been in the vicinity to monitor the
            assailant's behavior and conduct, so that intervention

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                                         6
             could occur before physical contact. Again, this answer
             is subject to continuing discovery.

Referencing only "security person," "security guard," and "orderly," plaintiff

said nothing about nurses in those interrogatory answers. She did not amend her

interrogatory responses.

      In her deposition, plaintiff testified that when the other patient entered the

day room, he was "not yelling just yet, but speaking sternly, telling me to stop

playing." She ignored him.

                    And then that just kept going on for maybe,
             maybe like two to three minutes and he started to walk
             closer to me and like started banging his walker like and
             telling me, again, to stop playing and then I just kept
             playing and then that's when he moved back a little and
             like come to the side of the piano and started to push it
             against me until I was up against the wall.

                   And then I just kept playing again, just not
             looking at him, not making any eye contact, and then
             he came back around to like where I was and started
             screaming at me more and telling me to stop playing
             and then like a few minutes later, after that kept going
             on, that's when he punched me.

She estimated that seven minutes had elapsed from the time the other patient

entered the room until he punched her. She stated the nurses' station was down

the hall on the right side.




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      After the close of discovery, defendant moved for summary judgment on

the remaining claims. Plaintiff had not served any expert report identifying any

negligent act or omission by any hospital employee. During oral argument on

the summary-judgment motion, plaintiff's counsel conceded plaintiff did not

have any evidence of negligence by any non-professional hospital employee and

agreed claims based on the alleged negligence of nurses had been dismissed in

the court's prior order.     Attempting to distance plaintiff's claim from

"professional negligence," plaintiff's counsel characterized plaintiff's claim as

"a simple matter of common knowledge . . . there is an altercation going on,

albeit it was verbal, that people who are within earshot and are working there

should have come to her aid." In response, defense counsel argued "you're not

dealing with common knowledge of what a nurse should or shouldn't do with a

dementia patient" or "how a behavioral health unit operates in a hospital." The

court granted the motion, finding plaintiff had not shown "any specific negligent

act of any specific non-professional employee" and "the standard by which the

conduct of the nurses in responding or not responding or what they did is one

that has to be established by expert testimony."




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                                       8
                                        II.

      In this appeal, plaintiff contends the trial court erred in (1) dismissing

claims against the hospital based upon the Affidavit of Merit Statute; and (2)

finding plaintiff's affidavit was not compliant with the Affidavit of Merit

Statute. Plaintiff again represents that her "assertions of negligence did not

involve the rendering of patient medical care." Characterizing her case as a

"premises liability claim," plaintiff argues the hospital should have known the

other patient posed a risk of harm to plaintiff 1 and should have protected

plaintiff, as a "paying invitee," from him and staff members should have

intervened to prevent the assault. Based on that description of the case, plaintiff

argues she was not required to serve an affidavit of merit. Alternatively, she

asserts the affidavit she submitted was sufficient. In response, the hospital

argues the trial court properly analyzed plaintiff's claim and correctly

determined it required an affidavit of merit as to alleged negligence of the

hospital and its licensed staff and the affidavit plaintiff submitted was not

compliant with the Affidavit of Merit Statute.


1
  The police officer who prepared a report about the incident described the other
patient as suffering from "severe dementia" and as being "very old and frail"
with "trouble walking." The record is devoid of any evidence suggesting – much
less establishing – the hospital should have known the other patient was
dangerous or posed a risk of harm to plaintiff or anyone.
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                                        9
      We review de novo motions to dismiss based on failures to comply with

the Affidavit of Merit Statute, Castello v. Wohler, 

446 N.J. Super. 1

, 14 (App.

Div. 2016), in part because they involve a legal determination, specifically "the

statutory interpretation issue of whether a cause of action is exempt from the

affidavit of merit requirement," Cowley v. Virtua Health Sys., 

242 N.J. 1

, 14-15

(2020), and in part because they involve a dismissal of a complaint for failure

to state a claim.   "The submission of an appropriate affidavit of merit is

considered an element of the claim." Meehan v. Antonellis, 

226 N.J. 216

, 228

(2016). Thus, "[f]ailure to submit an appropriate affidavit ordinarily requires

dismissal of the complaint with prejudice." Ibid.; see also 

Cowley, 242 N.J. at

16

. Accordingly, we limit our inquiry to "examining the legal sufficiency of the

facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp

Elecs. Corp., 

116 N.J. 739

, 746 (1989); see also Dimitrakopoulos v. Borrus,

Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 

237 N.J. 91

, 107 (2019). We

conduct a de novo review of summary judgment orders and apply the same

standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 

219

N.J. 395

, 405 (2014).

      The Affidavit of Merit Statute requires

            [i]n any action for damages for personal injuries,
            wrongful death or property damage resulting from an

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                                      10
            alleged act of malpractice or negligence by a licensed
            person in his profession or occupation, the plaintiff
            shall, within 60 days following the date of filing of the
            answer to the complaint by the defendant, provide each
            defendant with an affidavit of an appropriate licensed
            person that there exists a reasonable probability that the
            care, skill or knowledge exercised or exhibited in the
            treatment, practice or work that is the subject of the
            complaint, fell outside acceptable professional or
            occupational standards or treatment practices.

            [N.J.S.A. 2A:53A-27.]

The purpose of the statute is "to weed out frivolous claims against licensed

professionals early in the litigation process." 

Meehan, 226 N.J. at 228

. See also

Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc., ___ N.J. Super. ___,

___ (App. Div. 2021) (slip op. at 6) (intent of Legislature was to ensure parties

did not waste time or resources on unnecessary litigation, including discovery).

Thus, pursuant to the statute, "a plaintiff must provide 'each defendant' with an

affidavit that indicates the plaintiff's claim has merit." Fink v. Thompson, 

167

N.J. 551

, 559-60 (2001).

      A "licensed person" includes a "physician in the practice of medicine or

surgery," "a registered professional nurse," and "a health care facility" N.J.S.A.

2A:53A-26(f) to (j). Plaintiff does not dispute that the hospital and its doctors

and nurses fall within that definition.



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                                          11
      Not every claim against a licensed person requires an affidavit of merit.

An "affidavit will only be needed when the underlying harmful conduct involves

professional negligence, implicating the standards of care within that

profession." McCormick v. State, 

446 N.J. Super. 603

, 613-14 (App. Div.

2016); see also

id. at 614

(noting affidavit of merit not required in cases

involving a nurse who spills hot coffee on a patient or who falls and knocks

someone over).

      In deciding whether a plaintiff must submit an affidavit of merit, courts

must look deeper than how parties designate their cases. "It is not the label

placed on the action that is pivotal but the nature of the legal inquiry." Couri v.

Gardner, 

173 N.J. 328

, 340 (2002). Instead of focusing on a label, "courts

should determine if the claim's underlying factual allegations require proof of a

deviation from the professional standard of care applicable to that specific

profession."

Ibid. If that proof

is necessary, "an affidavit of merit is required

for that claim, unless some exception applies."

Ibid.

Our courts have

acknowledged a "common knowledge exception" to the

Affidavit of Merit Statute requirements. 

Cowley, 242 N.J. at 16

. "In the

exceptionally rare cases in which the common knowledge exception applies,"

id. at 17,

a plaintiff does not have to submit an affidavit of merit "where the


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carelessness of the defendant is readily apparent to anyone of average

intelligence."   Rosenberg v. Cahill, 

99 N.J. 318

, 325 (1985).          "In those

exceptional circumstances," 

Cowley, 242 N.J. at 17

, the "jurors' common

knowledge as lay persons is sufficient to enable them, using ordinary

understanding and experience, to determine a defendant's negligence without the

benefit of the specialized knowledge of experts," Est. of Chin v. St. Barnabas

Med. Ctr., 

160 N.J. 454

, 469 (1999). The common knowledge exception is

construed "narrowly in order to avoid non-compliance with the statute."

Hubbard v. Reed, 

168 N.J. 387

, 397 (2001). Examples of circumstances falling

under the common knowledge exception include a dentist extracting the wrong

tooth

, id. at 396-97,

and a doctor reading specimen numbers as actual test results,

Palanque v. Lambert-Woolley, 

168 N.J. 398

, 407-08 (2001).

      Attempting to evade the requirements of the Affidavit of Merit Statute,

plaintiff labels this case a "premises liability claim" and argues that because her

"claims are not unique to rendering medical care" and "are not claims of

professional negligence," they "do not require an [a]ffidavit of [m]erit." She

analogizes the facts of this case to an assault in a restaurant and the duty of a

restaurant owner to provide for the safety of its patrons.




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                                       13
      But the events of this case did not take place in a restaurant. They took

place in a behavioral-health unit of a hospital.     And the people allegedly

involved in the incident weren't waiters and diners, but behavioral-health unit

staff members and patients hospitalized for treatment of their mental-health

illnesses. The questions raised by the facts of this case – how a hospital should

staff a behavioral-health unit, whether and what security the hospital should

provide given the characteristics of the patient population of the unit, how it

should staff a nurses' station in the unit, whether a patient with dementia poses

a risk to another patient, to what extent and how patients should be monitored

and supervised, whether a patient has violent tendencies requiring extra

precautions and the determination of what those precautions should be, and what

procedures and protocols hospitals should have in place for hospital staff to

follow in the event of an altercation between behavioral-health-unit patients or

a violent act by a patient – convince us this case is about more than simple,

ordinary negligence and involves subject matters falling outside jurors' common

knowledge and experience.       Accordingly, we conclude plaintiff had an

obligation to provide an affidavit of merit regarding direct claims against the

hospital and vicarious claims against the hospital based on the alleged

negligence of its licensed staff and that the common knowledge exception to the


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                                      14
affidavit-of-merit requirements does not apply to excuse plaintiff from that

obligation.

      Having found the court correctly held an affidavit of merit was required,

we now address whether the affidavit of merit served by plaintiff met the

requirements of the statute.         The Legislature determined the required

qualifications for an affiant.

              In the case of an action for medical malpractice, the
              person executing the affidavit shall meet the
              requirements of a person who provides expert
              testimony or executes an affidavit as set forth in
              [N.J.S.A. 2A:53A-41]. In all other cases, the person
              executing the affidavit shall be licensed in this or any
              other state; have particular expertise in the general area
              or specialty involved in the action, as evidenced by
              board certification or by devotion of the person’s
              practice substantially to the general area or specialty
              involved in the action for a period of at least five years.

              [N.J.S.A. 2A:53A-27.]

Thus, to demonstrate a claim is meritorious in accordance with the Affidavit of

Merit Statute, a plaintiff must "obtain[] an affidavit from an appropriate,

licensed expert attesting to the 'reasonable probability' of professional

negligence." Ferreira v. Rancocas Orthopedic Assocs., 

178 N.J. 144

, 149-50

(2003). An affidavit of merit must be executed by a like-licensed professional.




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                                         15
Hill Int'l, Inc. v. Atl. City Bd. of Educ., 

438 N.J. Super. 562

, 587 (App. Div.

2014).

      Plaintiff's affiant rendered two opinions:       "there exists a reasonable

probability that [the hospital] failed to take appropriate measures to protect

[plaintiff]" and "there is sufficient evidence at this time to conclude that the care

rendered by the [hospital] and its staff was inappropriate and fell ou tside

acceptable professional or occupational standards or treatment practices." As a

registered nurse and family nurse practitioner, the affiant is not qualified to

opine about hospital security measures, protocols, and staffing in a behavioral-

health unit, which – labels aside – is what this case is about.

      Plaintiff's affiant may be qualified to opine about nursing care and

whether a nurse failed to meet accepted standards in the care rendered to a

patient. But as plaintiff has represented repeatedly, this case is not about the

care plaintiff received and is not about malpractice. It is about whether the

hospital had appropriate security measures and protocols in place in its

behavioral-health unit.

      The affidavit itself demonstrates that this case is about the policies and

procedures of the hospital and not the negligent act of one individual. The

affiant did not identify an employee who was negligent or even any type of


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                                        16
employee that was negligent but generically references "staff." She did not

identify what standard of care was unmet or describe what actions the unnamed

staff member should have taken or failed to take.

      The parties argue about whether plaintiff was required to include in the

affidavit the name of an allegedly negligent nurse. What is clear to us is that

this blanket affidavit fails to comply with the Affidavit of Merit Statute because

it fails to meet its purpose: to enable the parties "to weed out frivolous claims

against licensed professionals early in the litigation process." 

Meehan, 226 N.J.

at 228

. Plaintiff failed to provide defendant with an affidavit indicating that

plaintiff's vicarious claims had merit.       See 

Fink, 167 N.J. at 559-60

.2

Accordingly, we find the trial court correctly concluded plaintiff's affidavit was

not statutorily compliant.

      Plaintiff included both orders in her amended notice of appeal but focused

her briefs on the first order. She apparently included the summary-judgment

order because she believes the reversal of the first order requires reversal of the


2
 Although this issue was not raised by the parties or the trial court, we note,
with respect to her second opinion regarding staff, the affiant failed to opine
within a "reasonable probability" that a staff member had failed to meet an
applicable professional standard of care but only that "sufficient evidence"
existed for that conclusion. Ferreira, 178 N.J at 149-50. See N.J.S.A. 2A:53A-
27 (requiring "an affidavit . . . that there exists a reasonable probability" of a
deviation from a standard of care); Buck v. Henry, 

207 N.J. 377

, 382 (2011).
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                                       17
summary-judgment order. Because we affirm the order granting defendant's

motion to dismiss and because plaintiff did not make any substantive arguments

regarding the summary-judgment order, we affirm without further comment the

summary-judgment order. N.J. Dep't of Env't Prot. v. Alloway, 

438 N.J. Super.

501

, 505 n.2 (App. Div. 2015) (issue "not briefed is deemed waived").

      Affirmed.




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