# Candace A. Moschella v. Hackensack Meridian Jersey Shore University Medical Center

> Supreme Court of New Jersey · July 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10466105

## Case

- **Court:** Supreme Court of New Jersey
- **Decided:** July 11, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.

Candace A. Moschella v. Hackensack Meridian Jersey Shore
University Medical Center (A-7-23) (088312)

Argued May 2, 2024 -- Decided July 11, 2024

SOLOMON, J., writing for a unanimous Court.

Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a licensed
professional must produce an affidavit from an expert attesting to the merits of the
claim. Issues regarding the expert affidavit -- the Affidavit of Merit (AOM) -- are to
be resolved at an accelerated case management conference conducted by the trial
court in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144,
154-55 (2003), otherwise known as a Ferreira conference. In this appeal, the Court
considers whether the trial court properly found, without holding a Ferreira
conference, that the AOM submitted by plaintiff Candace Moschella was insufficient.

On July 20, 2018, plaintiff’s daughter, Alexandrianna Lowe, who suffered
from an opioid addiction, was admitted to Hackensack Meridian Jersey Shore
University Medical Center (JSUMC) for complications associated with Type 1
diabetes. Two days later, Lowe was found unresponsive. Hospital staff
administered anti-opioid medication but failed to check Lowe’s blood sugar levels.
An autopsy revealed Lowe had no illicit drugs in her system at the time of her death.

Plaintiff filed a complaint against JSUMC, Michael Carson, M.D., and John
and Jane Does 1 through 100. At the time of the complaint’s filing, plaintiff had not
yet been appointed administratrix ad prosequendum of her daughter’s estate, so she
did not have access to Lowe’s medical records.

Defendants moved to dismiss Dr. Carson because he did not participate in any
of the events that led to Lowe’s death. The motion included an affidavit identifying
Dr. Vikas Singh as the attending physician at the time of Lowe’s death and two
pages of Lowe’s medical records. The court granted defendants’ motion.

Plaintiff submitted an AOM prepared by Dr. Joseph Fallon that stated Fallon
was “Board Certified in Internal Medicine, as was . . . Dr. Michael P. Carson and at
least one of the John and Jane Doe [d]efendants sued therein (now known to be Dr.
Vikas Singh, the physician in charge of the efforts to resuscitate [Lowe]).”

1
Defendants argued that the Fallon AOM was insufficient because it failed to
name the surviving defendants in the action; did not state that Dr. Fallon was a
“similarly licensed physician” as contemplated by the AOM statute; and failed to
state that Dr. Fallon reviewed Lowe’s medical records.

Without a Ferriera conference, the trial court dismissed plaintiff’s complaint
with prejudice for failure to submit a sufficient AOM. The Appellate Division
affirmed. The Court granted certification. 255 N.J. 363 (2023).

HELD: The AOM plaintiff submitted complied with N.J.S.A. 2A:53A-27. First, an
AOM does not need to specify that the affiant reviewed medical records. Second, a
doctor to whom the affidavit attributed negligence is the agent of a named defendant
and is identified in the AOM as one of the John or Jane Doe defendants included in
the complaint. The Court stresses the importance of the Ferreira conference in
professional negligence actions.

1. The dual purpose of the AOM statute is to weed out frivolous lawsuits early in
the litigation while, at the same time, ensuring that plaintiffs with meritorious claims
will have their day in court. To achieve that balance, plaintiffs bringing negligence
suits against designated professionals are required to produce an affidavit from an
expert attesting to the merits of the claim. The Court has construed the statute to
require dismissal with prejudice for noncompliance. (pp. 12-14)

2. In Cornblatt v. Barow, the Court analyzed the required contents of a compliant
AOM and found that the AOM statute does not require that the affiant’s
qualifications must be included in the affidavit. 153 N.J. 218, 241 (1998). The
Court declined to impose additional burdens on the plaintiff outside the statutory
text. Id. at 242. In Fink v. Thompson, the Court found that an AOM referring to
unknown defendants was insufficient with respect to a doctor who had been named
in the complaint, but it concluded that the plaintiff had nevertheless substantially
complied with the AOM statute because the doctor “was timely served with an
affidavit and . . . report that clearly focused on his conduct and on the totality of the
circumstances.” 167 N.J. 551, 560-64 (2001). And the Appellate Division held that
a plaintiff complied with N.J.S.A. 2A:53A-27 where the AOM identified the
defendants only as “defendant architects and engineers.” Medeiros v. O’Donnell &
Naccarato, Inc., 347 N.J. Super. 536, 539, 544 (App. Div. 2002). (pp. 15-16)

3. The requirement of a Ferreira conference is meant to ensure that discovery
related issues, such as compliance with the AOM statute, do not become sideshows
to the primary purpose of the civil justice system -- to shepherd legitimate claims
expeditiously to trial. The Court has stressed the need for a timely and effective
Ferreira conference in all professional negligence actions. (pp. 16-19)

2
4. Here, defendants’ arguments focus on the Fallon AOM’s (1) failure to mention
that any medical records were reviewed and its (2) failure to name a specific named
defendant whose actions fell below the applicable standard of care. As to the first
point, given that N.J.S.A. 2A:53A-27 does not refer to the review of medical
records, affiants are not required to state that they reviewed the medical records of
the injured party. See Cornblatt, 153 N.J. at 241. The Fallon AOM’s failure to
include a reference to Lowe’s medical records thus does not render it insufficient.
As to the second point, the AOM statute “is silent as to any requirement that the
affidavit specifically identify a defendant by name.” Medeiros, 347 N.J. Super. at
540. And unlike the affidavit at issue in Fink, plaintiff’s AOM specifically names
Dr. Singh as “one of the John and Jane Doe [d]efendants sued therein.”
Furthermore, Dr. Singh was not required to be named individually in the complaint
because he was an agent of JSUMC and was one of the John and Jane Does referred
to in the complaint. (pp. 20-24)

5. The Court reiterates the need for a timely and effective Ferreira conference in all
professional negligence actions. The conference is designed to identify and resolve
issues regarding the AOM that has been served or is to be served. Failing to hold
such a conference in this case gave rise to issues that could have been resolved.
Because the Fallon AOM is compliant with N.J.S.A. 2A:53A-27’s requirements, the
Court need not reach the equitable remedies of substantial compliance or
extraordinary circumstances. The Court notes, however, that if it were to reach the
question of extraordinary circumstances, the trial court’s failure to hold a Ferreira
conference would weigh heavily in favor of such a finding. (pp. 24-25)

REVERSED and REMANDED.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS,
WAINER APTER, and NORIEGA join in JUSTICE SOLOMON’s opinion.
JUSTICE FASCIALE did not participate.

3
SUPREME COURT OF NEW JERSEY
A-7 September Term 2023
088312

Candace A. Moschella,
on behalf of herself and the
Estate of Alexandrianna Lowe,

Plaintiffs-Appellants,

v.

Hackensack Meridian Jersey Shore
University Medical Center and
Dr. Michael P. Carson,

Defendants-Respondents.

On certification to the Superior Court,
Appellate Division.

Argued Decided
May 2, 2024 July 11, 2024

Christina Vassiliou Harvey argued the cause for
appellants (Lomurro Munson, attorneys; Christina
Vassiliou Harvey, of counsel and on the supplemental
briefs, and Andrew Broome, on the supplemental briefs;
Appellants having filed briefs in support of certification
on their own behalf).

Russell J. Malta argued the cause for respondents
(Orlovsky Moody Schaaff Conlon Bedell McGann &
Gabrysiak, attorneys; Russell J. Malta, of counsel and on
the briefs).

1
Catherine J. Flynn argued the cause for amici curiae
Medical Society of New Jersey and American Medical
Association (Flynn Watts, attorneys; Michael A.
Moroney, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a

licensed professional must “produce an affidavit from an expert attesting to the

merits of the claim.” Meehan v. Antonellis, 226 N.J. 216, 230 (2016). Issues

regarding the expert affidavit -- the Affidavit of Merit (AOM) -- are to be

resolved at an accelerated case management conference conducted by the trial

court in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J.

144, 154-55 (2003), otherwise known as a Ferreira conference. In this appeal,

we consider whether the trial court properly found, without holding a Ferreira

conference, that the AOM submitted by plaintiff Candace Moschella was

insufficient under N.J.S.A. 2A:53A-26 to -29.

Following the death of her daughter Alexandrianna Lowe, plaintiff filed

a complaint seeking damages under New Jersey’s Wrongful Death Act,

N.J.S.A. 2A:31-1 to -6, and for negligent infliction of emotional distress

against Hackensack Meridian Jersey Shore University Medical Center

(JSUMC), Michael Carson, M.D., and John and Jane Does 1 through 100.

Plaintiff alleged that while Lowe was admitted at JSUMC, “numerous other

2
persons, whose identities are currently unknown . . . were also involved in the

provision of medical care to” Lowe. As is required by N.J.S.A. 2A:53A-27,

plaintiff submitted an AOM in support of the validity of her claim. Dr. Joseph

Fallon prepared plaintiff’s AOM.

The trial court, without holding a Ferreira conference, granted

defendants’ motion to dismiss plaintiff’s complaint with prejudice, finding the

Fallon AOM insufficient under N.J.S.A. 2A:53A-27. The court reasoned that

the Fallon AOM did not state that Dr. Fallon reviewed any medical records,

and it did not indicate that any named defendant committed negligence. The

court further denied plaintiff’s claims that she substantially complied with the

AOM statute’s requirements or that extraordinary circumstances warranted

dismissal without prejudice. The Appellate Division affirmed.

We hold that the Fallon AOM complied with N.J.S.A. 2A:53A-27. First,

an AOM does not need to specify that the affiant reviewed medical records.

Second, a doctor to whom the affidavit attributed negligence is the agent of a

named defendant and is identified in the AOM as one of the John or Jane Doe

defendants included in the complaint. We therefore reverse the judgment of

the Appellate Division and remand the matter for further proceedings. We

stress once again the importance of the Ferreira conference in professional

negligence actions.

3
I.

A.

Given that this case did not reach the discovery phase before it was

dismissed with prejudice, we rely on the following facts alleged in plaintiff’s

complaint and responses to defendants’ motions to dismiss.

On July 20, 2018, Lowe, who suffered from an opioid addiction, was

admitted to JSUMC for complications associated with Type 1 diabetes.

Plaintiff claims that defendants were aware of both conditions at the time of

Lowe’s admission to the hospital.

Shortly after plaintiff left Lowe at the hospital on the night of July 22,

2018, plaintiff received a call from medical staff that Lowe was unresponsive.

Plaintiff later learned that staff found that “a syringe of unknown origin [had

been] inserted into [Lowe’s] IV line.” Plaintiff alleged that defendants

“negligently assumed” the syringe was related to Lowe’s opioid addiction and

believed that Lowe was overdosing. Hospital staff then administered Narcan,

an anti-opioid overdose medication, but failed to check Lowe’s blood sugar

levels. An autopsy conducted by the Monmouth County Medical Examiner’s

Office revealed that Lowe had no illicit drugs in her system at the time of her

death.

4
On July 21, 2020, plaintiff, acting pro se, filed a complaint on behalf of

Lowe’s estate, 1 alleging negligence under the Wrongful Death Act against

defendants. At the time of the complaint’s filing, plaintiff had not yet been

appointed administratrix or administratrix ad prosequendum of Lowe’s estate,

so she did not have access to Lowe’s medical records.

The complaint stated that Dr. Michael P. Carson

was in charge of [Lowe’s] medical care while she was
an inpatient at [JSUMC] and numerous other persons,
whose identities are currently unknown to Plaintiff (and
therefore are herein referred as Defendants John and
Jane Does Nos. 1 through 100 (the “Doe Defendants”)),
were also involved in the provision of medical care to
[Lowe] while she was an inpatient at [JSUMC].

Defendants filed an answer on August 25, 2020, and later moved,

without opposition, to dismiss Dr. Carson from the action because he did not

participate in any of the events that led to Lowe’s death. The motion included

an affidavit identifying Dr. Vikas Singh as the attending physician at the time

of Lowe’s death and two pages of Lowe’s medical records. The court granted

defendants’ motion, leaving JSUMC and the John and Jane Does as the

remaining defendants.

1
Plaintiff also alleged, on her own behalf, negligent infliction of emotional
distress against all defendants.
5
B.

On September 28, 2020, the court informed plaintiff of a Ferreira

conference scheduled for September 30, 2020, but that conference was

postponed. The court rescheduled but ultimately cancelled the Ferreira

conference. 2

On October 28, 2020, defendants moved to dismiss plaintiff’s complaint

for failure to state a cause of action because she had not proffered an AOM.

Three days later, plaintiff filed an AOM authored by retired nurse Jennifer

Colangelo.

Plaintiff filed opposition to defendants’ motion on November 24, 2020,

and in support submitted a letter from Dr. Tirissa Reid, a board-certified

endocrinologist, and a letter from Rachel Leininger, R.N., which pointed out

the importance of checking the blood sugar levels of an unresponsive diabetic

patient.

The court held oral argument on defendants’ motion to dismiss on

December 18, 2020, and concluded that although plaintiff failed to file an

2
According to the court, the Ferriera conference never took place because
“there was no [AOM]” and a Ferreira conference “is not designed to say . . .
you need to file an [AOM].” In a later hearing, the trial court noted that
instead of a Ferreira conference, plaintiff “had a conversation with someone
who works in [the] civil assignment office . . . and w[as] made aware . . . that
an [AOM] was needed.”
6
AOM within sixty days of defendants’ answer, a sixty-day extension had been

granted and plaintiff had until December 23, 2020 to file an AOM.

On December 23, 2020, plaintiff submitted Dr. Fallon’s curriculum vitae

and AOM stating that he is “a licensed physician in the State of New Jersey”

and at “the time of the conduct complained of” was “Board Certified in

Internal Medicine, as was . . . Dr. Michael P. Carson and at least one of the

John and Jane Doe [d]efendants sued therein (now known to be Dr. Vikas

Singh, the physician in charge of the efforts to resuscitate [Lowe]).” As part

of the AOM, Dr. Fallon also provided that he

reviewed the [c]omplaint and, based upon [his]
education, training, experience and knowledge of the
facts as alleged therein, [found] that the allegations
therein allege a viable cause of action in that there
exists a reasonable probability that the care, skill or
knowledge exercised or exhibited by one or more of the
[d]efendants therein (including Dr. Singh, one of the
John and Jane Doe [d]efendants sued therein) in the
treatment, practice or work that is the subject of the
[c]omplaint fell outside acceptable professional or
occupational standards or treatment practices.

In response, defendants argued that the Fallon AOM was insufficient

under N.J.S.A. 2A:53A-27 and plaintiff’s complaint should therefore be

dismissed with prejudice. Specifically, defendants claimed that the AOM

failed to name the surviving defendants in the action, that the AOM did not

state that Dr. Fallon was a “similarly licensed physician” as contemplated by

7
the AOM statute, and that Dr. Fallon failed to state that he reviewed Lowe’s

medical records.

Arguing extraordinary circumstances, plaintiff advised the trial court

that her inability to be appointed administratrix ad prosequendum of her

daughter’s estate and the COVID-19 pandemic prevented her from securing

Lowe’s medical records. Notwithstanding, and without a Ferriera conference,

on January 4, 2021, the trial court granted defendants’ motion to dismiss

plaintiff’s complaint with prejudice for failure to submit a sufficient AOM.

In an accompanying written decision, the court reasoned that although

Dr. Fallon is a “similarly credentialed expert” capable of submitting an AOM

in this case, the Fallon AOM was insufficient because Dr. Fallon did not

indicate that any named defendant’s care fell outside acceptable professional

or occupational standards. The court explained that “Dr. Fallon does not have

the authority to cause [Dr. Singh] to be a named defendant through plaintiff’s

use of the ‘John and Jane Doe’ designations in the complaint.” The court

further found that Dr. Fallon’s AOM violated the statute by failing to indicate

that he reviewed any of Lowe’s medical records.

Additionally, the court did not find that plaintiff substantially complied

with the AOM statute because “an appropriate [AOM] by a medical

professional likely cannot be issued without a review by the expert of Lowe’s

8
medical records.” 3 Similarly, the court determined that plaintiff did not

demonstrate extraordinary circumstances and subsequently dismissed her

complaint with prejudice because she “received notice of the [AOM]

requirement when she received the Ferreira conference notice and spoke with

court staff.”

Plaintiff was appointed administratrix ad prosequendum on February 12,

2021, nearly two months after the deadline for filing her AOM, and more than

a month after the trial court dismissed her complaint. Plaintiff moved for

reconsideration of the dismissal of her complaint and later moved for leave to

amend her complaint to add Dr. Singh as a named defendant.

After oral argument, the court denied plaintiff’s motion to reconsider,

finding that the AOM was insufficient and did not substantially comply with

N.J.S.A. 2A:53A-27. The court later issued an order denying plaintiff’s

motion to amend her complaint because “[a]n amendment of the complaint

cannot be granted after the case [was] dismissed with prejudice[.]”

C.

On appeal, plaintiff argued that the trial court erred as a matter of law in

finding that the Fallon AOM was insufficient and, in the alternative, that the

3
Although the trial court listed the five prongs a plaintiff must establish for
substantial compliance, the court did not analyze them.
9
trial court should have found that the AOM substantially complied with

N.J.S.A. 2A:53A-27, or extraordinary circumstances warranted dismissal

without prejudice.

The Appellate Division affirmed the trial court’s decision, agreeing that

the Fallon AOM was insufficient because it did not allege negligence against a

named defendant. The Appellate Division found that plaintiff did not

substantially comply with the AOM statute because she “was aware she

required a compliant AOM to support her complaint” and was granted an

extension to procure one, but failed to do so. Concluding that “plaintiff had

ample opportunity to provide an AOM that complied with the statute,” the

court found that plaintiff failed to demonstrate extraordinary circumstances

and dismissal with prejudice was appropriate.

D.

We granted plaintiff’s petition for certification. 255 N.J. 363 (2023).

We also granted leave to participate as amici curiae to the Medical Society of

New Jersey (MSNJ) and the American Medical Association (AMA).

II.

Plaintiff contends that the Fallon AOM is sufficient because N.J.S.A.

2A:53A-27 does not require that the licensed professional named in the AOM

be a named defendant. Plaintiff also argues that N.J.S.A. 2A:53A-27 does not

10
require the affiant to enumerate the materials reviewed or to provide their

credentials.

Alternatively, plaintiff contends that she substantially complied with the

requirements of N.J.S.A. 2A:53A-27 because defendants were not prejudiced,

plaintiff attempted to obtain an AOM showing that at least one agent of

JSUMC breached the standard of care, defendants had reasonable notice of her

claims, and she submitted a detailed explanation justifying any failure to

comply with the statute. Plaintiff also argues that if the AOM is insufficient

and does not substantially comply with the AOM statute, extraordinary

circumstances warrant dismissal of her complaint without prejudice because

she was not appointed administratrix ad prosequendum of her daughter’s estate

until after the AOM deadline, the COVID-19 pandemic delayed her from

procuring an AOM, and the court did not hold a Ferreira conference.

Defendants argue that the Fallon AOM does not meet the requirements

of N.J.S.A. 2A:53A-27 because Dr. Fallon relied on plaintiff’s complaint,

rather than Lowe’s medical records, and the AOM failed to identify a named

defendant whose actions fell below the applicable standard of care.

Defendants also contend therefore that the Fallon AOM does not substantially

comply with N.J.S.A. 2A:53A-27 because no specific caregiver is alleged to

have done anything that fell outside the relevant standard of care, and the

11
absence of a Ferreira conference does not relieve a plaintiff of the obligation to

timely serve a conforming AOM. Defendants submit that plaintiff failed to

demonstrate extraordinary circumstances, arguing that plaintiff’s reliance on

the lack of a Ferreira conference is “disingenuous” and that the dismissal of

plaintiff’s claims are unrelated to the COVID-19 pandemic.

Amici curiae MSNJ and AMA jointly agree with defendants that

plaintiff’s failure to obtain a sufficient or substantially compliant AOM and

her failure to demonstrate exceptional circumstances warrant dismissal of her

complaint with prejudice.

III.

A.

The Legislature enacted the AOM statute “as part of a tort reform

package designed to ‘strike[] a fair balance between preserving a person’s

right to sue and controlling nuisance suits.’” Palanque v. Lambert-Woolley,

168 N.J. 398, 404 (2001) (alteration in original) (quoting Office of the

Governor: News Release, Gov. Christine Todd Whitman (June 29, 1995)).

We have long recognized that the dual purpose of the AOM statute is “to weed

out frivolous lawsuits early in the litigation while, at the same time, ensuring

that plaintiffs with meritorious claims will have their day in court.” Ferreira,

178 N.J. at 150 (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). To

12
achieve that balance, plaintiffs bringing negligence suits against designated

professionals are required “to produce an affidavit from an expert attesting to

the merits of the claim.” Meehan, 226 N.J. at 230. Physicians and health care

facilities are among the “licensed persons” covered by the AOM statute.

N.J.S.A. 2A:53A-26(f), (j).

In an

action for damages for personal injuries, wrongful
death or property damage resulting from an 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. The court may grant
no more than one additional period, not to exceed 60
days, to file the affidavit pursuant to this section, upon
a finding of good cause.

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]. . . . The person shall have no
financial interest in the outcome of the case under
review, but this prohibition shall not exclude the person
from being an expert witness in the case.

[N.J.S.A. 2A:53A-27 (emphases added).]

13
An AOM is not required “if the plaintiff provides a sworn statement in

lieu of the affidavit setting forth that: the defendant has failed to provide

plaintiff with medical records or other records or information having a

substantial bearing on preparation of the affidavit.” N.J.S.A. 2A:53A-28. “If

the plaintiff fails to provide an affidavit or a statement in lieu thereof . . . it

shall be deemed a failure to state a cause of action.” N.J.S.A. 2A:53A-29. We

have “construed the statute to require dismissal with prejudice for

noncompliance.” A.T. v. Cohen, 231 N.J. 337, 346 (2017).

“The [AOM statute] is the exclusive authority governing the document

to be filed.” Cornblatt v. Barow, 153 N.J. 218, 238 (1998). Because the

statute’s aim is “to identify and eliminate unmeritorious claims against

licensed professionals and to permit meritorious claims to proceed efficiently

through the litigation process,” our courts recognize the doctrines of

substantial compliance and extraordinary circumstances, which can “temper

the draconian results of an inflexible application of the statute” when an AOM

is insufficient. Meehan, 226 N.J. at 229 (quoting Ferreira, 178 N.J. at 151).

B.

1.

In several cases, our courts have considered the requirement to name

allegedly negligent defendants in an AOM.

14
In 1998, we applied the AOM statute’s provisions to a legal malpractice

claim brought by a divorcee against her lawyer. Cornblatt, 153 N.J. at 236.

We held in Cornblatt that, although N.J.S.A. 2A:53A-27 plainly requires the

submission of an AOM, nothing in the statute’s history “suggests the

Legislature intended to foreclose the familiar doctrine of substantial

compliance in the [AOM] context.” Id. at 240. Analyzing the required

contents of a compliant AOM, we found that although the statute separately

“lists the affiant’s qualifications as mandatory requirements, . . . the statute

does not describe those requirements as information that must be included in

the affidavit.” Id. at 241 (emphasis added). We therefore declined to impose

additional burdens on the plaintiff outside the statutory text. Id. at 242.

We further elaborated on the AOM’s requirements in Fink v. Thompson,

in which the plaintiff filed a complaint against the defendant doctor, two

hospitals, and other unnamed physicians. 167 N.J. 551, 557 (2001). The

plaintiff timely submitted an AOM against the defendant Dr. Strobel, but the

AOM did not mention Dr. Strobel by name. Id. at 559. We held that the

AOM’s reference to “unknown” physicians did not satisfy N.J.S.A. 2A:53A-27

because Dr. Strobel was a named defendant and the AOM did not specifically

refer to him. Id. at 560-61 (“N.J.S.A. 2A:53A-27 requires that a plaintiff

provide an [AOM] to each defendant detailing a reasonable probability that at

15
least one claim concerning each defendant has merit.”). We concluded,

however, that the plaintiff had substantially complied with the AOM statute

because “[Dr.] Strobel was timely served with an affidavit and . . . report that

clearly focused on his conduct and on the totality of the circumstances

attending [the hospital’s] acceptance of [the patient] into its care under

Strobel’s authorization.” Id. at 564. We therefore held that the plaintiff’s

complaint should not have been dismissed. Id. at 565.

One year after Fink, the Appellate Division held that a plaintiff complied

with N.J.S.A. 2A:53A-27 where the AOM identified the defendants only by

occupation as “defendant architects and engineers.” Medeiros v. O’Donnell &

Naccarato, Inc., 347 N.J. Super. 536, 539 (App. Div. 2002). The appellate

court explained that although “the better practice would be for plaintiffs to

identify, by name, the specific defendant alleged to have committed

malpractice,” the AOM identifying defendants by occupation was sufficient

because there was only one “defendant engineer involved in the project.” Id.

at 542.

2.

Through case law, we have developed a requirement that the compliance

of an AOM with the AOM statute be examined at a conference not long after

the pleadings are filed.

16
To combat the “avalanche of litigation” generated by the AOM statute,

we “declared in Ferreira that an accelerated case management conference

should be conducted within ninety days of the filing of an answer to identify

and address any and all issues concerning the [AOM] served or not served by

the plaintiff.” Meehan, 226 N.J. at 229 (emphasis added). Ferreira dealt with

a case of attorney inadvertence: the plaintiff obtained an AOM ten days after

receipt of an answer but filed it eighteen days out of time. 178 N.J. at 147.

We held that when a plaintiff obtains an AOM within the 120-day period

referred to in the statute and serves the AOM outside that timeframe but before

the defendant files their motion to dismiss, the complaint will not be

dismissed. Id. at 154.

The requirement of a Ferreira conference within ninety days of the filing

of an answer is meant “[t]o ensure that discovery related issues, such as

compliance with the [AOM] statute, do not become sideshows to the primary

purpose of the civil justice system -- to shepherd legitimate claims

expeditiously to trial.” Ibid. We reasoned that

[e]xpediting the schedule in malpractice cases will
further the intent of our Best Practice rules: to resolve
potential discovery problems before they become grist
for dueling motions. At the conference, the court will
address all discovery issues, including whether an
[AOM] has been served on [the] defendant. If an
[AOM] has been served, defendant will be required to

17
advise the court whether he has any objections to the
adequacy of the [AOM]. If there is any deficiency in
the [AOM], plaintiff will have to the end of the 120-day
time period to conform the [AOM] to the statutory
requirements. If no [AOM] has been served, the court
will remind the parties of their obligations under the
statute and case law.

[Id. at 154-55 (emphasis added).]

In 2016, “we return[ed] to the vexing and recurring issue” of the

sufficiency of an AOM when a plaintiff sought treatment for sleep apnea from

an orthodontist, who failed to inform the plaintiff that the treatment may

dislocate his teeth. Meehan, 226 N.J. at 220. The plaintiff, who was self-

represented, submitted an AOM from a dentist who specialized in

prosthodontics and the treatment of sleep apnea. Ibid. The defendant asserted

that because a dentist, not a “like qualified” orthodontist, authored the AOM, it

did not meet the enhanced credential requirements for AOMs submitted in

professional negligence cases under the Patients First Act (PFA), N.J.S.A.

2A:53A-41. Id. at 224. We first held that the PFA’s constraints applied only

to physicians in medical malpractice actions, which was not the case in

Meehan. Id. at 235. Finding that the dentist affiant was not bound by the

PFA, we held that the AOM statute “requires no more than that the person

submitting an [AOM] be licensed in this state or another and ‘have particular

18
expertise in the general area or specialty involved in the action.’” Id. at 237

(quoting N.J.S.A. 2A:53A-27).

Importantly, we reasoned that “[a]n effective Ferreira conference would

probably have prevented [the] appeal” because “[t]he trial court pointedly

declined to resolve the issues presented by [the] plaintiff.” Id. at 240. We

reiterated “the need for a timely and effective Ferreira conference in all

professional negligence actions” because “[t]he conference is designed to

identify and resolve issues regarding the [AOM] that has been served or is to

be served.” Id. at 241.

IV.

Informed by those principles, we turn to the question presented by this

appeal: whether plaintiff’s complaint should have been dismissed with

prejudice for failure to comply with N.J.S.A. 2A:53A-27 when the AOM

identified an agent of defendant JSUMC who was not himself a named

defendant and did not state that medical records were reviewed.

A.

Because this appeal involves a matter of statutory interpretation, our

review is de novo. Cashin v. Bello, 223 N.J. 328, 335 (2015). When

interpreting the AOM statute, as with any statute, “[t]he objective of that task

‘is to discern and effectuate the intent of the Legislature.’” Meehan, 226 N.J.

19
at 232 (quoting Shelton v. Restaurant.com, Inc., 214 N.J. 419, 428-29 (2013)).

“In most instances, the best indicator of that intent is the plain language chosen

by the Legislature.” Cashin, 223 N.J. at 335 (quoting State v. Gandhi, 201

N.J. 161, 176 (2010)). We reiterate here that the text of the AOM statute “is

the exclusive authority governing the document to be filed,” and “[t]he issue of

what information must be included in the [AOM] is one of statutory

construction.” Cornblatt, 153 N.J. at 218, 241.

B.

Here, defendants do not contest either that Dr. Fallon had access to the

two pages of medical records attached to defendants’ answer or that Dr. Fallon

is a similarly qualified licensed person under the AOM statute and the PFA. 4

Defendants’ arguments focus on the Fallon AOM’s (1) failure to mention that

any medical records were reviewed and its (2) failure to name a specific named

defendant whose actions fell below the applicable standard of care. We

consider each argument in turn.

4
Because this is a medical malpractice action against a physician, the PFA
and its attendant requirements are implicated. Under N.J.S.A. 2A:53A-41(a), a
physician submitting an AOM must be a licensed physician with the same
specialty as the allegedly negligent doctor.
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1.

As we held in Cornblatt, the “the only part of the statute detailing what

must be included in the [AOM]” is the specification “‘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.’” 153 N.J. at 241 (quoting N.J.S.A. 2A:53A-27). Given that the

AOM statute does not make any reference to the review of medical records, we

conclude that affiants are not required to state that they reviewed the medical

records of the injured party.

Further, although N.J.S.A. 2A:53A-28 provides relief where a defendant

refuses to provide medical records, creating an inference that medical records

must be reviewed before submitting an AOM, that inference does not import a

requirement that affiants state in the AOM that they reviewed the patient’s

medical records. We thus find that the Fallon AOM’s failure to include a

reference to Lowe’s medical records does not render it insufficient.

2.

We turn next to the findings of the trial court and the Appellate Division

that the Fallon AOM was insufficient for failing to allege negligence against a

named defendant. Plaintiff here alleged negligence against JSUMC -- a named

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defendant -- by and through its agents, the John and Jane Doe defendants 1

through 100, on a theory of vicarious liability.

To establish vicarious liability, a plaintiff must demonstrate an

employment relationship and that the alleged tort occurred in the scope of that

employment. Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). “Although as

a general rule of tort law, liability must be based on personal fault,” an

employer will be held vicariously liable under the doctrine of respondeat

superior “for the negligence of an employee causing injuries to third parties, if,

at the time of the occurrence, the employee was acting within the scope of his

or her employment.” Ibid.

Once JSUMC provided plaintiff with the two pages of medical records,

Dr. Fallon was able to identify Dr. Singh as “one of the John and Jane Doe

[d]efendants sued therein.” We assume for the purposes of resolving the issue

raised in this appeal, because it is uncontested that Dr. Singh was JSUMC’s

agent, that any alleged negligence occurred within the scope of that agency

relationship.

As the Appellate Division correctly stated in Medeiros, the AOM statute

“is silent as to any requirement that the affidavit specifically identify a

defendant by name.” 347 N.J. Super. at 540. “[W]hen a statute is susceptible

of an interpretation true to its purpose and that permits plaintiffs to proceed

22
with meritorious claims, we will not add requirements not explicitly set forth

that deny plaintiffs their day in court.” Burns v. Belafsky, 166 N.J. 466, 470

(2001).

At the time of plaintiff’s complaint, plaintiff did not have access to

Lowe’s medical records. Plaintiff therefore raised this claim against JSUMC

and “other persons, whose identities are currently unknown (and therefore are

herein referred as [d]efendants John and Jane Does Nos. 1 through 100[)].”

The Fallon AOM sufficiently identifies Dr. Singh as “one of the John and Jane

Doe [d]efendants sued therein.”

In Fink, we found that the AOM was insufficient because it referenced

“unknown” physicians. 167 N.J. at 560-61. By contrast, plaintiff’s AOM

specifically names Dr. Singh as “one of the John and Jane Doe [d]efendants

sued therein.” In accordance with Medeiros, the Fallon AOM named “the

specific defendant alleged to have committed malpractice.” 347 N.J. Super. at

542.

Furthermore, to the extent that Dr. Singh is not a named defendant in the

complaint, we hold that he was not required to be named individually in the

complaint because he was an agent of JSUMC and was one of the John and

Jane Does referred to in the complaint. Again, plaintiff was unable to obtain

Lowe’s medical records, which made it impossible to accurately identify the

23
physicians or nurses who attended to her daughter on the night she died.

However, upon receipt of defendants’ answer, accompanied by two pages of

records that explained Dr. Singh’s role, plaintiff successfully identified Dr.

Singh as both an agent of JSUMC and “one of the John and Jane Doe

[d]efendants sued therein.” It would therefore be inconsistent with our

precedent and the purpose of the statute to uphold a ruling denying this

plaintiff the ability to proceed with this medical malpractice claim.

We reiterate here, as we did in Meehan, “the need for a timely and

effective Ferreira conference in all professional negligence actions” because

“[t]he conference is designed to identify and resolve issues regarding the

[AOM] that has been served or is to be served.” 226 N.J. at 241. Failing to

hold such a conference in this case gave rise to issues that could have been

resolved. For example, the fact that her late appointment as administratrix ad

prosequendum deprived plaintiff of the legal authority to request Lowe’s

medical records from JSUMC would have explained any delay. Additionally,

it would have been made clear that Dr. Fallon benefited from Lowe’s medical

records identifying Dr. Singh.

Because we find the Fallon AOM is compliant with N.J.S.A. 2A:53A-

27’s requirements, we need not reach the equitable remedies of substantial

compliance or extraordinary circumstances. If we were to reach the question

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of extraordinary circumstances, however, the trial court’s failure to hold a

Ferreira conference would weigh heavily in favor of such a finding. See A.T.,

231 N.J. at 346 (“The Ferreira conference was designed to be the Judiciary’s

key tool to promote satisfaction of the [AOM statute’s] salutary policy

goals.”). We emphasize once again the conference’s importance in

professional negligence actions.

V.

We hold that the Fallon AOM is sufficient, and plaintiff’s complaint

should not have been dismissed. We therefore vacate the dismissal of

plaintiff’s complaint, reinstate the complaint, and remand for the trial court to

consider plaintiff’s motion to amend her complaint to add Dr. Singh as a

defendant. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (“We

have made clear that ‘Rule 4:9-1 requires that motions for leave to amend be

granted liberally’ . . . .” (quoting Kernan v. One Wash. Park Urb. Renewal

Assocs., 154 N.J. 437, 456-57 (1998))).

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-
LOUIS, WAINER APTER, and NORIEGA join in JUSTICE SOLOMON’s
opinion. JUSTICE FASCIALE did not participate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10466105. Public record. Not legal advice.