doctor who discontinued certain medication was identifiable
How later courts described this case
- doctor who discontinued certain medication was identifiable
- AOM referred to engineers and there was only one engineering firm
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3103-23
LINA M. RAMIREZ,
individually, as
Administratrix and
Administratrix ad
Prosequendum for the
ESTATE OF WILLIAM
RAMIREZ,
Plaintiff-Respondent,
v.
CARE ONE, LLC, and
CARE ONE AT TEANECK,
LLC,
Defendants-Appellants.
__________________________
Argued October 29, 2024 – Decided November 25, 2024
Before Judges Gilson and Firko.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Bergen County,
Docket No. L-1239-22.
Anthony Cocca argued the cause for appellant (Cocca
& Cutinello, LLP, attorneys; Anthony Cocca and
Katelyn E. Cutinello, of counsel and on the brief).
Juan C. Fernandez argued the cause for respondent
(Fernandez Garcia, LLC, attorneys; Juan C. Fernandez,
on the brief).
PER CURIAM
On leave granted, defendants CareOne, LLC and CareOne at Teaneck,
LLC (defendants or CareOne) appeal from an April 24, 2024 order denying their
motion to dismiss plaintiffs' complaint for failure to submit an appropriate
affidavit of merit. Defendants also argue that plaintiffs have failed to set forth
facts showing gross negligence and, therefore, plaintiffs' claims are barred by
the COVID-19 immunity statute, L. 2020, c. 18. Having reviewed the record
and governing law, we reversed in part, affirmed in part, and remanded for
further proceedings consistent with this opinion.
I.
William Ramirez was a resident at defendant at CareOne at Teaneck,
rehabilitation facility, owned by defendant CareOne. He had been admitted for
rehabilitation following hip surgery shortly after the World Health Organization
declared COVID-19 a global pandemic. He contracted COVID-19 during his
A-3103-23
2
stay at defendants' facility and died on April 18, 2020, from complications of
the virus.
Plaintiff, the estate of William Ramirez, filed a four-count complaint
against defendants and fictitious entities generally alleging wrongful death and
damages under the New Jersey Survival Act, N.J.S.A. 2A:15-3. Plaintiff alleged
defendants rendered medical care and treatment to decedent in a "wanton,
willful, reckless and/or negligent manner constituting professional negligence."
Plaintiff also alleged these actions were not immune under the law as defendants
"were aware [of] other individuals who were positive for COVID[-19] . . . and
failed to take proper actions to protect [decedent]."
Defendants moved to dismiss the complaint for failure to state a claim
pursuant to Rule 4:6-2(c) and (e) contending they were immune from civil
liability for healthcare professionals and facilities providing medical services
under the New Jersey COVID-19 Immunity Statute, L. 2020, c. 18. The trial
court granted defendants' motion to dismiss pursuant to Rules 4:6-2(c) and (e)
without prejudice, finding the motion to dismiss was warranted because of the
lack of specificity in plaintiff's complaint.. The trial court granted plaintiff leave
to file an amended complaint within forty-five days.
A-3103-23
3
Plaintiff filed a motion for leave to file and serve an amended complaint,
which essentially alleged the same allegations against defendants as the initial
complaint but also included claims for "gross negligence." Relevant here,
plaintiffs stated the following in the amended complaint:
124. Despite representations to the contrary, it appears
that the facility reported [ten] COVID[-19] cases as of
April 18, 2020. . . . On April 20, 2020, [sixty-five]
COVID[-19] cases and [twenty-one] deaths were
reported in the N.J. [l]ong [t]erm [c]are [f]acilities with
COVID-19 [c]ases [r]eport . . . .
125. Despite the susceptibility of death in elderly
patients in the facility and representations of no
positive results, in reportage it was stated that
[defendants' facility] in fact took in positive COVID
[-19] patients and represented they could safely take
more COVID[-19] patients. The reportage indicated
deaths "soared" thereafter . . . .
126. Prior to the COVID[-19] outbreak and subsequent
thereto[,] [defendants' facility] has been cited with
multiple violations and procedures were simply not
followed by [defendants' facility] . . . .
Defendants filed a cross-motion to dismiss the complaint with prejudice.
The trial court granted plaintiff's motion to amend the complaint and denied
defendants' cross-motion to dismiss with prejudice. We denied defendants'
motion for leave to appeal.
A-3103-23
4
Defendants filed an answer to the amended complaint and requested a
Ferreira1 conference. The trial court instructed plaintiff to serve an Affidavit of
Merit (AOM) as required by N.J.S.A. 2A:53A-26 to -29. Defendants then
moved to dismiss the amended complaint with prejudice on the grounds that
plaintiff failed to serve an AOM from a properly licensed individual. Plaintiff
filed a cross-motion to extend time to serve an AOM. On October 20, 2023, the
trial court denied defendants' motion to dismiss and granted plaintiff's cross -
motion to extend time to serve an AOM and entered two orders.
On November 9, 2023, plaintiff served an AOM authored by Gregg Davis,
M.D., M.B.A. According to his curriculum vitae, Dr. Davis is board certified in
family medicine who specializes in geriatrics and has "[t]hirty years of
experience as a skilled care nursing facility director and attending physician."
Dr. Davis certified that defendants breached the standard of care in light of
decedent's symptoms, progress of the pandemic, his roommate's symptoms, and
failed to provide a COVID-19 test at the family's request.
1
See Moshella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., 258 N.J.
110, 113-14 (2024) ("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.")
A-3103-23
5
Defendants objected to Dr. Davis's AOM, asserting he was not qualified
to offer standard of care opinions against the nursing staff at defendants' facility.
Defendants also advised plaintiff that to the extent the claims were premised on
vicarious liability or for the conduct of "licensed persons" under the AOM,
plaintiff "must identify . . . specific individual(s) . . . alleged to be negligent and
provide an [AOM] against that 'licensed person' from a similarly qualified
'licensed person.'" Specifically, defendants alleged Dr. Davis targeted "the
facility and staff of CareOne" in his AOM, without identifying a specific
licensed person. Defendants sent a letter to the trial court objecting to the AOM.
On December 28, 2023, we denied defendants' motion for leave to appeal the
October 20, 2023 orders.
On February 29, 2024, defendant filed a motion to dismiss plaintiff's
amended complaint with prejudice for failure to comply with the AOM statute.
On April 24, 2024, the trial court denied both defendants' motions to dismiss.
The trial court found decedent was admitted to CareOne at Teaneck for hip
rehabilitation not for COVID-19 treatment. Since plaintiff alleged defendant
did not provide basic medical care to decedent, the trial court determined that
the first exception to the immunity afforded under the Immunity Statute did not
apply.
A-3103-23
6
In addition, the trial court found CareOne's administrative failures
allegedly created an unconscionable risk of harm to decedent that falls under the
definition of "gross" negligence because defendants allegedly failed to follow
Center for Disease Control guidelines and implement COVID-19 protocols,
which plaintiff claims caused decedent's condition to deteriorate and made him
susceptible to COVID-19. A memorializing order was entered. Defendants
moved for and we granted leave to appeal.
On appeal, defendants present two arguments for our consideration:
(1) The amended complaint must be dismissed with
prejudice because plaintiff failed to submit an AOM
from an appropriate licensed person; and
(2) Dr. Davis's AOM demonstrates that this lawsuit
should be dismissed with prejudice pursuant to New
Jersey's COVID-19 [I]mmunity [S]tatute.
II.
We begin our discussion with a review of the principles governing our
analysis. Rule 4:6-2 provides:
Every defense, legal or equitable, in law or fact, to a
claim for relief in any complaint, counterclaim, cross-
claim, or third-party complaint shall be asserted in the
answer thereto, except that the following defenses, . . .
may at the option of the pleader be made by motion,
with briefs: . . . (e) failure to state a claim upon which
relief can be granted . . . .
A-3103-23
7
[R. 4:6-2(e).]
"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,
LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). Thus, "we
owe no deference to the trial judge's conclusions." State ex rel. Comm'r of
Transp. v. Cherry Hill Mitsubishi, Inc., 439 N.J. Super. 462, 467 (App. Div.
2015) (citing Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super.
103, 114 (App. Div. 2011)).
"At this preliminary stage of the litigation the [c]ourt is not concerned
with the ability of [a] plaintiff[] to prove the allegation contained in the
complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989) (citing Somers Constr. Co. v. Bd. of Educ., 198 F.Supp. 732, 734 (D.N.J.
1961)). "For purposes of analysis [a] plaintiff[ is] entitled to every reasonable
inference of fact." Ibid. (citing Indep. Dairy Workers Union v. Milk Drivers
Local 680, 23 N.J. 85, 89 (1956)). "The examination of a complaint's allegations
of fact . . . should be one that is at once painstaking and undertaken with a
generous and hospitable approach." Ibid.
A-3103-23
8
In undertaking our review,
it is essential to canvass the complaint to determine
whether a cause of action can be found within its four
corners. In so doing, we must accept the facts asserted
in the complaint as true. A reviewing court must
search[] the complaint in depth and with liberality to
ascertain whether the fundament of a cause of action
may be gleaned from an obscure statement of claim,
opportunity being given to amend if necessary.
Accordingly, all reasonable inferences are given to
plaintiff. Courts should grant these motions with
caution and in the rarest instances.
[Ballinger v. Del. River Port Auth., 311 N.J. Super.
317, 321-22 (App. Div. 1998) (internal quotation marks
and citations omitted) (alteration in original).]
The New Jersey Supreme Court has made it clear, "[i]f a complaint must
be dismissed after it has been accorded the . . . meticulous and indulgent
examination . . . then, barring any other impediment such as a statute of
limitations, the dismissal should be without prejudice to a plaintiff's filing of an
amended complaint." Printing Mart-Morristown, 116 N.J. at 772. In other
words, only if an insufficient pleading could not be corrected by amendment,
should it be dismissed with prejudice at this stage.
The submission of an appropriate AOM is an element of a professional
malpractice claim. Meehan v. Antonellis, 226 N.J. 216, 228 (2016). Failure to
provide an AOM is "deemed a failure to state a cause of action." N.J.S.A.
A-3103-23
9
2A:53A-29. "The failure to deliver a proper affidavit within the statutory time
period requires a dismissal of the complaint with prejudice." Ferreira, 178 N.J.
at 146-47.
Pursuant to N.J.S.A. 2A:53A-27, in any action for damages resulting from
an alleged act of malpractice or negligence by a licensed person as defined by
the statute, the plaintiff must:
within [sixty] 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 purpose of the 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)). Pursuant to the statute, a plaintiff must
provide a defendant with "an affidavit that indicates the plaintiff's claim has
merit." Fink v. Thompson, 167 N.J. 551, 559-60 (2001).
These principles can extend to certain vicarious liability claims. An AOM
is required "when the plaintiff's claim of vicarious liability hinges upon
allegations of deviation from professional standards of care by licensed
A-3103-23
10
individuals who worked for the named defendant." Haviland v. Lourdes Med.
Ctr. of Burlington Cnty., Inc., 250 N.J. 368, 381 (2022) (quoting McCormick v.
State, 446 N.J. Super. 603, 615 (App. Div. 2016)). Registered professional
nurses fall within the definition of "licensed person" under the AOM statute.
N.J.S.A. 2A:53A-26(i). Therefore, a plaintiff is required to serve an AOM to
support a claim of vicarious liability based on the alleged professional
negligence of a registered nurse.
In medical malpractice actions, the person executing the affidavit must
meet the same requirements that would be required of an expert at trial.
Haviland, 250 N.J. at 377-78. The AOM "must explain '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.'" Mortg. Grader, Inc. v. Ward & Olivo, L.L.P.,
438 N.J. Super. 202, 213 (App. Div. 2014) (quoting N.J.S.A. 2A:53A-27).
In terms of the AOM statute, we recently stated:
An AOM is required "when the plaintiff's claim of
vicarious liability hinges upon allegations of deviation
from professional standards of care by licensed
individuals who worked for the named defendant."
Haviland, 250 N.J. at 381 (quoting McCormick, 446
N.J. Super. at 615). Registered professional nurses fall
within the definition of "licensed person" under the
AOM statute. N.J.S.A. 2A:53A-26(i). Therefore, a
A-3103-23
11
plaintiff is required to serve an AOM to support a claim
of vicarious liability based on the alleged professional
negligence of a registered nurse.
In medical malpractice actions, the person
executing the affidavit must meet the same
requirements that would be required of an expert at
trial. Id. at 377-78. The AOM "must explain '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.'" Mortg.
Grader, Inc., 438 N.J. Super. at 213 (quoting N.J.S.A.
2A:53A-27).
[Hargett v. Hamilton Park OPCO, LLC, 477 N.J. Super.
390, 396-97 (App. Div. 2023), cert. denied, 256 N.J.
453 (2024).]
In Hargett, the AOM submitted did not name any individual negligent
persons. Id. at 394. Instead the AOM stated the following:
based upon a review of [the medical] records [of
Ingram] and other circumstances as [she] understand[s]
them to be, . . . there exists a reasonable probability that
the care, skill, or knowledge exercised in the treatment
provided by Alaris [Health] . . . and Jersey City Medical
Center, and members of their nursing and nursing
administrative staff, fell outside acceptable
professional standards and was the cause of harm to
. . . [plaintiff].
[Ibid. (alterations in original).]
Here, we conclude plaintiff is barred from asserting any professional
negligence claims against any physician or staff at CareOne. By plaintiff's own
A-3103-23
12
admission, Dr. Davis's AOM does not address those claims. Moreover,
plaintiff's amended complaint does not allege any deviation or departure from
the standard of care against any healthcare provider.
Instead, the amended complaint is limited to solely an administrative
claim against CareOne. The unresolved issue here, based upon our review of
the record, is lack of discovery as to the identity of the individuals who were
employed by or designated by defendant to implement COVID-19 protocols
during the relevant timeframe and what their areas of expertise are.
The AOM statute requires that a plaintiff "provide each defendant with an
affidavit . . . that there exists a reasonable probability that the care . . . exercised
or exhibited in the treatment . . . fell outside acceptable . . . treatment practices."
N.J.S.A. 2A:53A-27. Generally, an AOM should identify the licensed person
who allegedly deviated from the acceptable standard of care. Medeiros v.
O'Donnell & Naccarto, Inc., 347 N.J. Super. 536, 542 (App. Div. 2002). That is
not to say an AOM must always name the licensed person who is the subject of
a vicarious liability claim.
A number of decisions considered and accepted an AOM that did not
identify the licensed person by name. In each case, however, it was possible to
identify by the description within the AOM the licensed person or entity alleged
A-3103-23
13
to have deviated from the applicable standard of care. See, e.g., ibid. (AOM
referred to engineers and there was only one engineering firm); Fink, 167 N.J.
at 551 (doctor who discontinued certain medication was identifiable); Galik v.
Clara Maass Med. Ctr., 167 N.J. 341, 358 (2001) (unnamed radiologist was
identifiable).
Here, it is not possible to identify any CareOne professionals who were
negligent because Dr. Davis's AOM refers generally to "institutionalized failures
to implement mandatory procedures and policy required for facilities during the
COVID[-19] crisis." Plaintiff admittedly did not satisfy the obligation as to
CareOne personnel by serving an AOM that opines collectively as to the
institutionalized failures during the pandemic. Plaintiff was required to "provide
each defendant" with an appropriate AOM and failed to do so. Therefore, based
upon our de novo review, we reverse, in part, the April 24, 2024 order, and hold
that any professional negligence counts and claims alleged in plaintiff's
amended complaint are dismissed with prejudice.
A-3103-23
14
III.
A.
However, we conclude plaintiff has sufficiently alleged enough facts at
this juncture to support a claim for gross negligence, as alleged in the amended
complaint. The Immunity Statute provides:
(a) The Legislature finds and declares:
This statement of legislative intent is made to establish
clearly our intent because of the lack of committee
hearings. This statement shall be made an official part
of the record in establishing this Legislature's intent.
It has been reported that this bill would grant immunity
to all medical doctors and healthcare workers in New
Jersey for all inpatient or outpatient procedures or any
medical treatment rendered during the timeframe of the
COVID-19 emergency. This is not an accurate
statement.
The enactment of this bill is to ensure that there are no
impediments to providing medical treatment related to
the COVID-19 emergency and that all medical
personnel supporting the COVID-19 response are
granted immunity.
However, medical care rendered in the ordinary course
of medical practice does not provide the granting of
immunity. For example, procedures performed by
licensed medical professionals in their ordinary course
of business, including orthopedic procedures, OB/GYN
services, and necessary cardiological procedures.
A-3103-23
15
It is not the Legislature's intent to grant immunity for
medical services, treatment and procedures that are
unrelated to the COVID-19 emergency.
(b) As used in this section:
"Health care facility" means any healthcare facility as
defined in section 2 of P.L.2005, c. 222 (C.26:13-2),
and any modular field treatment facility and any other
site designated by the Commissioner of Health for
temporary use for the purpose of providing essential
services in support of the State's response to the
outbreak of Coronavirus disease during the public
health emergency and state of emergency declared by
the Governor in Executive Order 103 of 2020.
"Health care professional" means a physician,
physician assistant, advanced practice nurse, registered
nurse, licensed practical nurse, or other health care
professional whose professional practice is regulated
pursuant to Title 45 of the Revised Statutes or who is
otherwise authorized to provide health care services in
this State, an emergency medical technician or mobile
intensive care paramedic certified by the Commissioner
of Health pursuant to Title 26 of the Revised Statutes
or who is otherwise authorized to provide health care
services in this State, and a radiologic technologist
regulated pursuant to Title 26 of the Revised Statutes
or who is otherwise authorized to provide health care
services in this State.
(c) Notwithstanding the provisions of any law, rule, or
regulation to the contrary:
(1) a health care professional shall not be liable for civil
damages for injury or death alleged to have been
sustained as a result of an act or omission by the health
care professional in the course of providing medical
A-3103-23
16
services in support of the State's response to the
outbreak of coronavirus disease during the public
health emergency and state of emergency declared by
the Governor in Executive Order 103 of 2020; and
(2) a health care facility or a health care system that
owns or operates more than one health care facility
shall not be liable for civil damages for injury or death
alleged to have been sustained as a result of an act or
omission by one or more of its agents, officers,
employees, servants, representatives or volunteers, if,
and to the extent, such agent, officer, employee,
servant, representative or volunteer is immune from
liability pursuant to paragraph (1) of this subsection.
Immunity shall also include any act or omission
undertaken in good faith by a health care professional
or healthcare facility or a health care system to support
efforts to treat COVID-19 patients and to prevent the
spread of COVID-19 during the public health
emergency and state of emergency declared by the
Governor in Executive Order 103 of 2020, including
but not limited to engaging in telemedicine or
telehealth, and diagnosing or treating patients outside
the normal scope of the health care professional's
license or practice. The immunity granted pursuant to
this subsection shall not apply to acts or omissions
constituting a crime, actual fraud, actual malice, gross
negligence, recklessness, or willful misconduct, and
shall be retroactive to March 9, 2020.
We recently held that a health and rehabilitation facility owed no duty to
a recently released patient who tested positive for COVID-19 after she left the
facility and then transmitted COVID-19 to her husband. This court stated:
A-3103-23
17
Plaintiff does not dispute the Immunity Statute extends
to defendants. And we have no hesitation in holding
the Statute plainly altered the scope of any common law
duty defendants owed to Mrs. Campbell, and
derivatively to plaintiff's decedent Mr. Campbell. See
Lafage v. Jani, 166 N.J. 412, 460 (2001) (LaVecchia,
J., dissenting) (noting "[t]he Legislature is free to
expand, modify, or abrogate common law as it may
reasonably determine"). The Immunity Statute is a
clear enunciation of the State's public policy to
temporarily limit the scope of defendants' duty to one
of simply avoiding gross negligence, or worse, in their
provision of medical services in connection with the
State's response to the COVID-19 outbreak in New
Jersey during the declared public health emergency. In
considering both public policy and fairness in
determining the duty defendants owe here, we can think
of no clearer an articulation of "the societal interest in
the proposed solution" than the solution actually
imposed by the Legislature. J.S. v. R.T.H., 155 N.J.
330, 337 (1998).
Est. of Campbell through Campbell v. Woodcliff
Health & Rehab. Ctr., 479 N.J. Super. 64, 86 (App. Div.
2024).
In the matter under review, we conclude defendants are immune from liability
under a simple negligence or wrongful death action due to the immunity granted
by the Immunity Statute.
B.
However, the second exemption to the Immunity Statute does not apply
here based on the facts alleged in the amended complaint. The second exemption
A-3103-23
18
provides that the immunity granted "shall not apply to acts or omissions
constituting a crime, actual fraud, actual malice, gross negligence, recklessness,
or willful misconduct." L. 2020, c. 18 § 1(c)(2) (emphasis added). Our Supreme
Court has stated, "[t]he tort of gross negligence falls on a continuum between
ordinary negligence and recklessness, a continuum that extends onward to
intentional conduct." Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363
(2016). In Steinberg, the Supreme Court further explained gross negligence is
an act or omission, which is more than ordinary
negligence, but less than willful or intentional
misconduct. Gross negligence refers to a person's
conduct where an act or failure to act creates an
unreasonable risk of harm to another because of the
person's failure to exercise slight care or diligence.
[Id. at 364 (quoting Model Jury Charges (Civil), 5.12,
"Gross Negligence" (rev. March 2019)).]
"Whereas negligence is 'the failure to exercise ordinary or reasonable care' that
leads to a natural and probable injury, gross negligence is 'the failure to exercise
slight care or diligence.'" Ibid. (quoting Model Jury Charges (Civil), 5.12, at 4-
5). Further, the Supreme Court stated in Steinberg,
To be clear, reckless and willful conduct are degrees of
civil culpability greater than gross negligence.
Reckless conduct is "the conscious disregard . . . to a
known or obvious risk of harm to another" whereas
"[w]illful misconduct implies an intentional deviation
from a clear duty" owed to another. Anderson v.
A-3103-23
19
Massillon, 983 N.E.2d 266, 273 (Ohio 2012). In sum,
negligence, gross negligence, recklessness, and willful
conduct fall on a spectrum, and the difference between
negligence and gross negligence is a matter of degree.
[Id. at 365-66.]
A complaint must allege sufficient facts to support its causes of
action. Nostrame v. Santiago, 420 N.J. Super. 427, 436 (App. Div. 2011). The
court must determine if "a cause of action is 'suggested' by the facts." Printing
Mart, 116 N.J. at 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co., 109
N.J. 189, 192 (1988)). When doing so, the court must search "the complaint in
depth and with liberality to ascertain whether the fundament of a cause of action
may be gleaned even from an obscure statement of claim, opportunity being
given to amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove
Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
Plaintiff has not abandoned the gross negligence claim on appeal. The
amended complaint is effectively seeking to hold defendants liable for their own
alleged "gross negligence" by asserting defendants are vicariously liable for the
acts of their employees or anyone charged with implementing COVID-19
protocols at the time of decedent's admission and demise. As our Supreme Court
has instructed, a review under Rule 4:6-2(e) must be performed in a manner that
is "generous and hospitable." Printing Mart-Morristown, 116 N.J. at 746. Our
A-3103-23
20
role is simply to determine whether a cause of action is "suggested" by the
complaint. Ibid. (quoting Velantzas, 109 N.J. at 192).
Applying that principle to the matter before us, we are satisfied that
plaintiff has alleged sufficient facts, and not merely conclusory allegations, to
support a cause of action for gross negligence only. Discovery may provide a
basis to support plaintiff's gross negligence claim.
We conclude plaintiff is entitled to discovery limited solely to the gross
negligence claim, specifically that defendants failed as an institution to
implement mandatory procedures and policies during the COVID-19 pandemic
when decedent was at CareOne at Teaneck. The discovery shall include, but not
be limited to, defendants immediately providing the names, specialties, and
titles of all individuals who were responsible to implement mandatory policies
and procedures during COVID-19, in addition to other discovery plaintiff
propounds. We also direct the trial court to conduct another Ferreira conference
within thirty days for the purpose of defendants identifying what, if any AOMs
are required, because it is impossible to discern that information from the current
record.2
2
At oral argument, this court questioned defendants' counsel about this
information and no response was given.
A-3103-23
21
In sum, we:
(1) reverse in part the April 24, 2024 order denying
defendants' motion to dismiss with prejudice any
professional negligence claims against doctors,
nurses, and other healthcare professionals at
defendants' fault because AOM's were not duly
served;
(2) affirm in part the April 24, 2024 order denying
defendants' motion to dismiss plaintiff's gross
negligence claim only. Discovery on the gross
negligence claim shall proceed as stated.
Reversed in part, affirmed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-3103-23
22