FRANK TETTO VS. ST. CLARE'S HOSPITAL (L-2541-15, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5439-15T1

FRANK TETTO,

Plaintiff-Appellant,

v.

ST. CLARE'S HOSPITAL,

Defendant-Respondent.

____________________________

Submitted September 19, 2017 – Decided August 27, 2018

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Docket No.

L-2541-15.

Anthony J. Macri, attorney for appellant.

Rosenberg Jacobs Heller & Fleming, PC,

attorneys for respondent (Raymond J. Fleming,

of counsel and on the brief; Christopher

Klabonski, on the brief).

PER CURIAM

Plaintiff Frank Tetto appeals an August 5, 2016 order

dismissing his complaint for failure to comply with the Affidavit

of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29, and with

N.J.S.A. 2A:53-41(a) of the New Jersey Medical Care Access and

Responsibility and Patients First Act, L. 2004, c. 17 (Patients

First Act). We hold the AOM statute required plaintiff to provide

an AOM. We also hold his AOM had to meet the requirements of

N.J.S.A. 2A:53A-41(a) because he claimed defendant St. Clare's

Hospital was vicariously liable for the alleged negligence of the

specialist physicians who diagnosed him at the hospital. Because

his AOM did not meet those requirements, we affirm.

I.

Plaintiff's complaint alleges as follows. On December 29,

2013, he went to defendant's emergency room, complaining of

jaundice. He "was seen by a physician who was an employee or

agent of the defendant . . . who took a history from him." He

told the physician that "he occasionally had wine with dinner."

Plaintiff's answers to interrogatories stated he had been drinking

a glass or two of wine with dinner for the past two or three

months. The hospital's records indicated he said he had been

drinking one to two glasses of wine daily for three months.

Plaintiff's complaint alleged "[t]he physician negligently

interpreted the history and symptoms, and negligently and

improperly concluded that the plaintiff was an alcoholic and that

plaintiff's jaundice was caused by an alcohol problem." The

2 A-5439-15T1

complaint alleged "plaintiff was suffering pancreatic cancer which

was the cause of the jaundice."

Plaintiff's complaint alleged that as a result of the

physician's negligence, "information [was] put into his record to

the effect that he was an alcoholic." In his answers to

interrogatories, he specified he was referring to his "discharge

papers [which] had the misdiagnosis of '3. Alcohol abuse.'"

On December 30, 2013, plaintiff requested his medical record

be amended to remove that diagnosis. Defendant amended its records

to remove the diagnosis. On October 26, 2015, plaintiff filed his

complaint "for damages" against defendant in the Law Division.

On December 14, 2015, defendant filed its answer asserting

plaintiff's claims were subject to the AOM requirement in N.J.S.A.

2A:53A-27. On January 29, 2016, the Law Division ordered that

"plaintiff[] must file and serve an [AOM]" by "February 12, 2016,

or with the consent of the parties by April 12, 2016." Plaintiff

filed an AOM dated February 19, 2016, by Thomas Bojko, M.D., a

pediatrician with experience in healthcare administration.

On April 13, 2016, defendant filed a motion to dismiss

plaintiff's complaint for failing to comply with the AOM statute

and N.J.S.A. 2A:53A-41(a). Defendant's certification stated the

"alcohol abuse" diagnosis was made by doctors specializing in

internal medicine or emergency medicine.

3 A-5439-15T1

On August 5, 2016, after hearing argument, the trial court

granted defendant's motion, and dismissed plaintiff's complaint

with prejudice. Plaintiff appeals.

II.

We must hew to our standard of review. We review the

decisions to dismiss under the AOM statute "de novo." Castello

v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016). Moreover,

plaintiff's appeal raises legal issues of statutory construction

that we review de novo. Meehan v. Antonellis, 226 N.J. 216, 230

(2016).

"When the interpretation of a statute is at issue, '[t]he

objective of that task "is to discern and effectuate the intent

of the Legislature."'" Id. at 232 (citations omitted).

We begin by giving the words of the statute

"their ordinary meaning and significance."

Words, phrases, and clauses cannot be viewed

in isolation; all the parts of a statute must

be read to give meaning to the whole of the

statute. In this way, we must construe the

statute sensibly and consistent with the

objectives that the Legislature sought to

achieve. If the statute's plain language

reveals the Legislature's intent, our

interpretative mission should come to an end.

We resort to extrinsic evidence, such as

legislative history, only "if there is

ambiguity in the statutory language that leads

to more than one plausible interpretation,"

or "if a plain reading of the statute leads

to an absurd result or if the overall

statutory scheme is at odds with the plain

language."

4 A-5439-15T1

[Nicholas v. Mynster, 213 N.J. 463, 480 (2013)

(citations omitted).]

III.

First, plaintiff claims his complaint does not fall under the

AOM statute because it is not a medical malpractice action. The

AOM statute provides in pertinent part:

In any 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 section

7 of P.L. 2004, c. 17 (C. 2A:53A-41).

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

Plaintiff's complaint falls within the scope of the first

paragraph of N.J.S.A. 2A:53A-27, which "applies to all actions for

5 A-5439-15T1

damages based on professional malpractice." Paragon Contractors,

Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 421 (2010).

There are three elements to consider when

analyzing whether the statute applies to a

particular claim: (1) whether the action is

for "damages for personal injuries, wrongful

death or property damage" (nature of injury);

(2) whether the action is for "malpractice or

negligence" (cause of action); and (3) whether

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" (standard of care).

[Couri v. Gardner, 173 N.J. 328, 334 (2002)

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

First, plaintiff's complaint brought an "action for damages

for personal injuries . . . or property damage." N.J.S.A. 2A:53A-

27. The complaint averred that as a result of the discharge

diagnosis, plaintiff incurred damages including extreme and severe

mental distress, damage to his reputation as this improper medical

history was given and available to subsequent healthcare

professionals, and legal fees to get defendant to change this

wrongful entry into his medical records.

Personal injuries include "[a]ny invasion of a personal

right, including mental suffering[.]" Black's Law Dictionary 802

(8th ed. 2004). "The term 'property damage'" includes "damages

both to real and personal property." Cornblatt v. Barow, 303 N.J.

6 A-5439-15T1

Super. 81, 86 (App. Div. 1997), rev'd on other grounds, 153 N.J.

218 (1998). "Personal property embraces everything that may be

tangible or intangible such as a chose in action" or a claim for

money damages. Ibid. ("conclud[ing] that a claim against an

attorney for alleged malpractice is a claim for property damage");

see Nuveen Mun. Tr. v. Withumsmith Brown P.C., 752 F.3d 600, 603

(3d Cir. 2014); Nagim v. N.J. Transit, 369 N.J. Super. 103, 118-

19 (Law Div. 2003); cf. Couri, 173 N.J. at 334-35 (finding N.J.S.A.

2A:53A-27 inapplicable because the "plaintiff narrowed his request

for damages to the $12,000 that he paid to defendant," and thus

sought only reimbursement).

Second, plaintiff's complaint alleged the damages "result[ed]

from an alleged act of malpractice or negligence by a licensed

person in his profession or occupation." N.J.S.A. 2A:53A-27. A

"licensed person" includes "a physician in the practice of

medicine," as well as "a health care facility." N.J.S.A. 2A:53A-

26(f), (j). The complaint includes counts alleging causes of

action for negligence by the physician, negligence by the hospital,

intentional or negligent infliction of emotional distress,

misrepresentation, injurious falsehoods, and libel. Plaintiff's

allegation that the damages occurred "[a]s a result of the

aforesaid negligence of the physician" was incorporated into every

count of his complaint.

7 A-5439-15T1

Plaintiff did not use the term "malpractice," but the Court

in Couri held "[i]t is not the label placed on the action that is

pivotal but the nature of the legal inquiry." 173 N.J. at 340.

Accordingly, when presented with a tort or

contract claim asserted against a professional

specified in the statute, rather than focusing

on whether the claim is denominated as tort

or contract, attorneys and 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. If such proof

is required, an affidavit of merit is required

for that claim, unless some exception applies.

[Ibid. (emphasis added).]

The Court in Couri stated that this "standard would include

allegations that a psychiatrist failed to diagnose a patient

properly or provide proper treatment, [but] it would exclude

allegations that a psychiatrist negligently tripped a patient when

the patient entered the doctor's office." Id. at 341 (emphasis

added).

Although plaintiff's complaint does not use the word

"diagnosis," that is exactly the process it describes: "The

physician negligently interpreted the history and symptoms, and

negligently and improperly concluded that the plaintiff was an

alcoholic and that plaintiff's jaundice was caused by an alcohol

problem." The complaint alleged the physician failed to diagnose

him properly because it was really "pancreatic cancer which was

8 A-5439-15T1

the cause of the jaundice." He also contended this resulted in

false information that he was an alcoholic being placed in his

record, namely the diagnosis of "alcohol abuse" listed as one of

four "Discharge Diagnoses." Thus, plaintiff's factual evaluations

required proof of a misdiagnosis, an archetypal "deviation from

the professional standard of care applicable to [the medical]

profession." Couri, 173 N.J. at 340.

Plaintiff argues this was an administrative failure, not a

failure of diagnosis. However, plaintiff is not claiming the

physician correctly diagnosed him but a different diagnosis was

erroneously placed on his discharge form by administrative

personnel. Rather, he is claiming the physician incorrectly

diagnosed him, and the discharge form was harmful because it

contained that misdiagnosis.

Finally, plaintiff's complaint claimed 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." Ibid.; see Alpert, Goldberg, Butler, Norton & Weiss,

P.C. v. Quinn, 410 N.J. Super. 510, 540 (App. Div. 2009) (finding

an AOM is required for a counterclaim making "allegations that

'the quality of work product was not sufficient,' and that

plaintiff 'failed to do a complete and competent job'").

9 A-5439-15T1

Plaintiff cites Couri, but again Couri defeats his claim. In

Couri, "the crux of plaintiff's complaint is that defendant

[psychiatrist] acted improperly as an expert witness by

disseminating [his] report to others without the knowledge or

consent of plaintiff." 173 N.J. at 342. The Court stressed that

"[p]laintiff is not claiming that defendant erred in respect of

the conclusions that he drew concerning psychiatric/medical

matters or that defendant acted improperly from a

psychiatric/medical standpoint." Ibid. That is precisely what

plaintiff alleged about the physician here.

Thus, plaintiff's complaint alleged negligent diagnosis by a

physician in violation of professional standards. That fits the

definition of "medical malpractice": "A doctor's failure to

exercise the degree of care and skill that a physician or surgeon

of the same medical specialty would use under similar

circumstances." Black's Law Dictionary 978 (8th ed. 2004). Thus,

this is "an action for medical malpractice" within the meaning of

N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41. See, e.g., Buck v.

Henry, 207 N.J. 377, 384 (2011) (applying N.J.S.A. 2A:53A-41 where

the plaintiff alleged the doctor "failed to properly diagnose"

him).

10 A-5439-15T1

IV.

Plaintiff argues he was not required to provide an AOM because

this case falls under the common knowledge exception. An AOM

"need not be provided in common knowledge cases when an expert

will not be called to testify 'that the care, skill or knowledge

. . . [of the defendant] fell outside acceptable professional or

occupational standards or treatment practices.'" Hubbard ex rel.

Hubbard v. Reed, 168 N.J. 387, 390 (2001) (quoting N.J.S.A. 2A:53A-

27). "The [common knowledge] doctrine applies where '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.'" Id. at 394. Thus, in Hubbard, the Court

applied the exception where a dentist was told to pull one tooth

but pulled the wrong tooth, a classic "common knowledge" case.

Id. at 396.1

Nonetheless, the Supreme Court cautioned that "we construe

that exception narrowly in order to avoid non-compliance with the

[AOM] statute." Id. at 397. We have rejected application of the

common knowledge exception where defendants alleged medical

1

Hubbard advised that "the wise course of action in all

malpractice cases would be for plaintiffs to provide affidavits

even when they do not intend to rely on expert testimony at trial."

168 N.J. at 397. Plaintiff asserts he followed that advice.

11 A-5439-15T1

misjudgments. Risko v. Ciocca, 356 N.J. Super. 406, 409-11 (App.

Div. 2003); Aster ex rel. Garofalo v. Shoreline Behavioral Health,

346 N.J. Super. 536, 542 n.4 (App. Div. 2002).

Plaintiff alleged that a physician "failed to diagnose [him]

properly," which "require[s] proof of a deviation from [a]

professional standard of care." Couri, 173 N.J. at 341.

Because plaintiff's predicate for liability as

asserted in the complaint is the manner in

which a "licensed person" exercised

[professional] responsibilities and judgment,

and because the respects in which the

deficiencies occurred, if indeed they did

occur, is not a matter within the knowledge

of the average citizen or juror, plaintiff

would need an expert in order to make out a

prima facie case before the jury.

[Aster, 346 N.J. Super. at 542 n.4.]

We agree with the trial court that it was beyond the knowledge

of lay persons whether plaintiff's jaundice was caused by his

drinking or pancreatic cancer, or whether his acknowledged daily

drinking justified the medical diagnosis of "alcohol abuse."

Plaintiff argues the common knowledge exception applies

because this case is about keeping accurate hospital records.

However, he did not allege that his diagnosis was incorrectly

recorded. Cf. Palanque v. Lambert-Woolley, 168 N.J. 398, 400-01,

406-07 (2001) (ruling a physician's misreading specimen

identification numbers as test results and falsely telling a woman

12 A-5439-15T1

she was pregnant fell within the common knowledge exception).

Rather, he is arguing the physician made an incorrect diagnosis.

Accordingly, he was required to present an AOM and expert testimony

to make out his claim.

V.

Plaintiff points out he "is not suing any individual doctors,

only the hospital." He claims that therefore "N.J.S.A. 2A:53A-

41(a)[] does not apply since the hospital is not a 'specialist or

subspecialist.'" To resolve his claim, we must consider both

N.J.S.A. 2A:53A-41(a) and the principles of vicarious liability.

A.

We first examine the language of N.J.S.A. 2A:53A-41(a). That

section states in pertinent part:

In an action alleging medical malpractice, a

person shall not give expert testimony or

execute an affidavit pursuant to the

provisions of P.L. 1995, c. 139 (C. 2A:53A-26

et seq.) on the appropriate standard of

practice or care unless the person is licensed

as a physician or other health care

professional in the United States and meets

the following criteria:

a. If the party against whom or on whose behalf

the testimony is offered is a specialist or

subspecialist . . . , the person providing the

testimony shall have specialized . . . in the

same specialty or subspecialty . . . as the

party against whom or on whose behalf the

testimony is offered, and if the person

against whom or on whose behalf the testimony

is being offered is board certified, . . . the

13 A-5439-15T1

expert witness shall be . . . (2) a specialist

or subspecialist . . . who is board certified

in the same specialty or subspecialty . . .

[and has] devoted a majority of his

professional time to either: (a) the active

clinical practice of the same health care

profession in which the defendant is licensed,

and, if the defendant is a specialist or

subspecialist . . . , the active clinical

practice of that specialty or subspecialty

. . . [or] (b) the instruction of students

. . . in the same health care profession in

which the defendant is licensed, and, if that

party is a specialist or subspecialist . . .

in the same specialty or subspecialty[.]

[N.J.S.A. 2A:53A-41(a), (a)(2) (emphasis

added).]2

Thus, our Legislature referred to the specialist physician

as "the party against whom or on whose behalf the testimony is

offered," "the person against whom or on whose behalf the testimony

is being offered," "the defendant," and "that party." Ibid. All

of those phrases on their face refer to the specialist physician

as a named party in the medical malpractice litigation. "[T]he

defendant" clearly refers to a named defendant, and "that party"

refers to "the defendant" a few words earlier. Ibid. "[T]he

party against whom or on whose behalf the testimony is offered"

2

N.J.S.A. 2A:53A-41(b) similarly provides that "[i]f the party

against whom or on whose behalf the testimony is offered is a

general practitioner, the expert witness" shall either be

practicing as a general practitioner or teaching "in the same

health care profession in which the party against whom or on whose

behalf the testimony [is offered] is licensed."

14 A-5439-15T1

also clearly refers to a party to the litigation. "[T]he person

against whom or on whose behalf the testimony is offered" likewise

appears to refer to a party, and the Legislature treated both

phrases as synonymous.

If a plaintiff sues only a health care facility and not the

specialist physician, the "defendant" is the health care facility,

not a specialist physician. Ibid. Similarly, it is the health

care facility "against whom or on whose behalf the testimony is

offered." Ibid. The health care facility is not "a specialist

or subspecialist," "board certified," or "licensed" in a health

care profession. Ibid. Thus, under the plain language of N.J.S.A.

2A:53A-41(a), suing only a health care facility does not trigger

the requirement of an AOM from a person with the "same" specialty

or subspecialty, board certification, or license. Ibid.

That conclusion is corroborated by considering the entire

Patients First Act of which N.J.S.A. 2A:53A-41(a) is a part.

Elsewhere in the Patients First Act, the Legislature used

"defendant" and "party" to refer to a party in the medical

malpractice litigation.3 The Legislature used "third party" to

3

N.J.S.A. 2A:53A-40(a) (referring to "a health care provider named

as a defendant in the medical malpractice action"); N.J.S.A.

2A:53A-40(c) (addressing "a health care provider named as a

defendant" and reinstatement of a dismissed "party" and sanctions

paid to a "party"); N.J.S.A. 2A:53A-40(d) (discussing sanctions

15 A-5439-15T1

refer to other persons.4 The Legislature used "health care

facility" elsewhere, but not in N.J.S.A. 2A:53A-41(a).5

Even if N.J.S.A. 2A:53A-41's language was ambiguous, its

legislative history indicates "the party" and "the defendant" are

synonymous. The language including the phrases "the party against

whom or on whose behalf the testimony is offered," "the person

against whom or on whose behalf the testimony is being offered,"

"the defendant," and "that party" in N.J.S.A. 2A:53A-41(a) was in

a section of the original bill, and remained unchanged through

enactment. A. 50, 4-5 (Mar. 4, 2004).6 The bill's sponsor

paid to a "party") N.J.S.A. 2A:53A-41(c) (considering a "motion

by the party"); N.J.S.A. 2A:53-41(f) (authorizing damages for "the

party for whom the person was testifying as an expert"); N.J.S.A.

2A:53A-42 (discussing additur and remittitur "motions by any

party" after "a verdict in favor of the complaining party");

N.J.S.A. 17:30D-7(a) (requiring notice of "any medical malpractice

claim settlement, judgment or arbitration award to which the

practitioner is a party"); N.J.S.A. 17:30D-27(a) (discussing "a

defendant in an action brought for medical malpractice"); N.J.S.A.

17:30D-27(b) (discussing the form of judgment "[u]nless otherwise

agreed to by the parties").

4

N.J.S.A. 17:30D-19(d)(4) (a purchasing alliance may "contract

with third parties"); L. 2004, c. 17, § 31(d)(2) (creating a task

force to study "the impact of third party reimbursement policies

by insurers and health maintenance organizations").

5

See, e.g., N.J.S.A. 2A:62-1.3; N.J.S.A. 45:9-19.13(b); N.J.S.A.

17:30D-7(a).

6

The same language was in one Senate bill, S. 50, 5 (Mar. 22,

2004), and similar language using "party" and "defendant" was in

another Senate bill, S. 551, 7 (pre-filed for 2004).

16 A-5439-15T1

explained that section "establishes qualifications for expert

witnesses in medical malpractice actions and for the purpose of

executing an affidavit of merit, and provides that an expert must

have the same type of practice and possess the same credentials,

as applicable, as the defendant health care provider, unless waived

by the court." Sponsors' Statement appended to A. 50 20 (Mar. 4,

2004) (emphasis added). This explanation of the section was

repeated unchanged throughout the legislative process.7 The

legislators' consistent description of the specialist physician

as "the defendant health care provider" corroborates that when the

Legislature used the "defendant" and "party" language in N.J.S.A.

2A:53A-41(a), it was referring to a specialist physician who was

a defendant in the medical malpractice action.

The legislative findings in the Patients First Act show that

the Legislature's focus was on individual specialist physicians.

The Legislature found and declared:

a. One of the most vital interests of the State

is to ensure that high-quality health care

7

Assemb. Appropriations Comm. Statement To Assemb. Comm.

Substitute For A. 50 1-2 (Mar. 4, 2004); Assemb. Health & Human

Services Comm. Statement To Assemb. Comm. Substitute For A. 50 1-

2 (Mar. 4, 2004); Assemb. Financial Institutions & Ins. Comm.

Statement To Assemb. Comm. Substitute For A. 50 2 (Mar. 4, 2004);

Sen. Health, Human Services And Senior Citizens Comm. Statement

To Assemb. Comm. Substitute For A. 50 2 (Mar. 22, 2004); accord

Sponsors' Statement appended to S. 50 20 (Mar. 22, 2004); Sen.

Health, Human Services And Senior Citizens Comm. Statement To Sen.

Comm. Substitute For S. 50 & S. 551 2 (Mar. 22, 2004).

17 A-5439-15T1

continues to be available in this State and

that the residents of this State continue to

have access to a full spectrum of health care

providers, including highly trained

physicians in all specialties;

b. The State's health care system and its

residents' access to health care providers are

threatened by a dramatic escalation in medical

malpractice liability insurance premiums,

which is creating a crisis of affordability

in the purchase of necessary liability

coverage for our health care providers;

c. One particularly alarming result of rising

premiums is that there are increasing reports

of doctors retiring or moving to other states

where insurance premiums are lower, dropping

high-risk patients and procedures, and

practicing defensive medicine;

d. The reasons for the steep increases in the

cost of medical malpractice liability

insurance are complex and involve issues

related to: the State's tort liability system;

the State's health care system, which includes

issues related to patient safety and medical

error reporting; and the State's regulation

and requirements concerning medical

malpractice liability insurers; and

e. It is necessary and appropriate for the

State to take meaningful and prompt action to

address the various interrelated aspects of

these issues that are impacted by, or impact

on, the State's health care system; and

f. To that end, this act provides for a

comprehensive set of reforms affecting the

State's tort liability system, health care

system and medical malpractice liability

insurance carriers to ensure that health care

services continue to be available and

accessible to residents of the State and to

18 A-5439-15T1

enhance patient safety at healthcare

facilities.

[N.J.S.A. 2A:53A-38 (emphasis added).]

"One of those reforms is embodied in the enhanced standards

contained in Section 41 [N.J.S.A. 2A:53A-41]." Meehan, 226 N.J.

at 234. By requiring that an AOM or expert testimony in a medical

malpractice action against a specialist physician generally must

be provided by a person in the same specialty, the Legislature

sought to weed out meritless lawsuits against specialist

physicians, and thus reduce their medical malpractice insurance

premiums. That serves the Legislature's goals of keeping

specialist "doctors" from leaving the State, or dropping high-risk

practices and procedures, and thus ensuring access to specialist

"physicians." N.J.S.A. 2A:53A-38. Thus, the Legislature's focus

was on suits against individual physician specialists. See Lomando

v. United States, 667 F.3d 363, 387 (3d Cir. 2011); N.J. State Bar

Ass'n v. State, 382 N.J. Super. 284, 298-303 (2005), aff'd, 387

N.J. Super. 24 (App. Div. 2006).

All of our Supreme Court's cases involving the statute have

thus far involved suits against individual specialist physicians.

Nicholas, 213 N.J. at 470 & n.5; Buck, 207 N.J. at 383; Ryan v.

Renny, 203 N.J. 37, 43 (2010). The Court has referred to the

statute as "applying only to physicians who are defendants in

19 A-5439-15T1

medical malpractice actions" rather than dentists in dental

malpractice actions. Meehan, 226 N.J. at 234. The Court has also

referred to the statute as applying: to a "physician party" and

"parties to a medical malpractice action," id. at 233; to a

"defendant physicians," Nicholas, 213 N.J. at 467-468, 481-82,

485-86; Ryan, 203 N.J. at 52; where "the defendant is a specialist,

board-certified, or a general practitioner," Ryan, 203 N.J. at 57-

58; see id. at 52-54; and to "a physician defending against a

malpractice claim," Buck, 207 N.J. at 396; see R. 4:5-3. Our

cases have used similar terms. E.g., Castello, 446 N.J. Super.

at 15-18; Medina v. Pitta, 442 N.J. Super. 1, 18-30 (App. Div.

2015); Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168,

178, 181 (App. Div. 2015). Thus, courts have read N.J.S.A. 2A:53A-

41 in accordance with its plain language.

Accordingly, we decline to find that the Legislature decided

whether the AOM requirements of N.J.S.A. 2A:53A-41 should apply

if the only defendant was a health care facility. The statutory

language and legislative history indicate the Legislature was

focused on suits against individual specialist physicians. The

Legislature was silent as to health care facilities. N.J.S.A.

2A:53A-41(a) solely addresses the requirements for an AOM and for

expert testimony in situations where the specialist physician is

a party.

20 A-5439-15T1

B.

In Hubbard, our Supreme Court created an exemption from the

AOM requirement for common knowledge cases, reasoning: "We do not

know whether the drafters of this legislation even contemplated a

common knowledge exemption, but believe such an exemption to

comport with their likely intent, and with a practical common

sense interpretation of the statute." 168 N.J. at 395-96.

Similarly, it does not appear that the Legislature considered

whether a defendant who invoked the judicially-crafted principles

of vicarious liability to sue a health care facility based on the

alleged negligence of a specialist physician should be required

to meet the AOM requirements. We believe that such a requirement

comports with their likely intent if they had considered that

issue, and with a practical, common-sense implementation of the

statutory scheme. In any event, we believe it is called for by

an even-handed application of the principles of vicarious

liability.

Plaintiff's complaint invokes the judicially-crafted

principles of vicarious liability for agency and respondeat

superior. After describing "the negligence of the physician," his

complaint repeatedly claimed defendant was "liable for the

referenced negligent acts of" its "employees, agents, or

servants." Where a plaintiff invokes the principles of vicarious

21 A-5439-15T1

liability in an effort to hold a health care facility liable as a

principal or employer for the negligence or malpractice of a

specialist physician agent or employee, then under those

principles the liability of the principal or employer must be

judged on the same basis as the liability of the agent or employee.

The courts of New Jersey apply "a vicarious liability

principle pursuant to which a master will be held liable in certain

cases for the wrongful acts of his servants or employees." Carter

v. Reynolds, 175 N.J. 402, 408 (2003). The New Jersey courts also

apply the companion "principle that 'a verdict which exonerates

the employee from liability requires also the exoneration of the

employer.'" Walker v. Choudhary, 425 N.J. Super. 135, 152 (App.

Div. 2012) (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954)).

"This conclusion is rooted in 'considerations of fundamental

fairness that, if the employee is not to be held responsible for

his wrongdoing, the employer whose liability is asserted solely

upon the basis of imputed responsibility for his employee's wrong

cannot in fairness and justice be required to respond in damages

for it.'" Ibid. (quoting Kelley, 16 N.J. at 271).

We believe the same principles of fundamental fairness apply

here. N.J.S.A. 2A:53A-41(a) requires that a specialist physician

may not be sued or held liable for alleged negligence within that

specialty unless an AOM is provided, and expert testimony

22 A-5439-15T1

presented, by an expert with the same specialty. Here, plaintiff

sought to hold a health care facility vicariously liable for the

alleged malpractice or negligence of a specialist physician. If

the specialist physician cannot be held liable under N.J.S.A.

2A:53A-41(a) because no expert with that specialty will provide

an AOM or testify that any negligence occurred, the health care

facility cannot in fairness and justice be held vicariously liable.

Thus, considerations of fundamental fairness require the same AOM

and expert testimony requirements apply before a health care

facility can be found liable for the specialist physician's alleged

negligence under principles of vicarious liability.

We have repeatedly utilized the principles governing

vicarious liability to govern the application of the AOM statute.

In Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super.

590 (App. Div. 2001), the plaintiff sued an engineering firm,

alleging it "was responsible, under respondeat superior, for its

hydrogeologist's negligent siting of [a] well." Id. at 597 (also

noting "[t]he firm may also be responsible for the hydrogeologist's

work on an agency theory"). We held the plaintiff properly

supplied the firm with an AOM from a geologist, "despite the fact

that only the engineering firm was sued," because "[t]he liability

pressed against the engineering firm is solely vicarious." Id.

at 598.

23 A-5439-15T1

In Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey,

Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div. 2010), the

plaintiff sued only law firms, based on the "allegedly negligent

omissions by a [deceased] patent attorney who had worked, in

succession, at the two law firms." Id. at 4-5, 9. The plaintiff

argued it was not required to serve an AOM on the firms because

N.J.S.A. 2A:53A-26(c) listed only "an attorney" and not a law firm

as a "licensed person" entitled to an AOM. Id. at 16. We rejected

that claim, emphasizing: "if plaintiff's reading of the statute

were accepted, that individualized protection would provide no

solace to a law firm that could have vicarious liability for the

actions or inactions of the licensed attorneys employed by, or

affiliated with, that firm." Id. at 22. We rejected that result

because the plaintiff sought "to invoke principles of vicarious

liability . . . to make those law firms financially accountable

for the harm that" their employees caused. Id. at 23; see id. at

18, 23 (citing with approval Martin v. Perinni Corp., 37 F. Supp.

2d 362, 365-66 (D.N.J. 1999), which applied principles of vicarious

liability to require an AOM against an architectural firm run by

a licensed architect).

In Shamrock, we agreed "it would be 'entirely anomalous' to

allow a plaintiff to circumvent the affidavit requirement by naming

only law firms as defendants in a legal malpractice complaint and

24 A-5439-15T1

not the individual attorneys who performed the services." Id. at

26. "The 'salutary benefit' of the affidavit of merit - in

winnowing out unfounded malpractice claims, and in reducing

burdens on parties, counsel, witnesses, jurors, and our publicly-

funded state court system - logically should apply to this case."

Ibid.8

In Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265 (App.

Div. 2011), we cited with approval the opinion in Nagim requiring

a plaintiff to provide an AOM to "a firm comprised of licensed

persons even though it did not qualify as a licensed person

itself." Id. at 272 (alterations in original) (citing Nagim, 369

N.J. Super. at 109). We noted Nagim's ruling that "the purpose

of the [AOM Statute] would be significantly thwarted if [the]

plaintiffs could avoid [its] requirements . . . by simply alleging

professional negligence on the part of a firm of licensed

professionals, without naming any such individual professional

specifically" because the firm's liability "is dependent upon the

acts or omissions of its individual employees." Id. at 272

(alterations in original) (quoting Nagim, 369 N.J. Super. at 109).

8

Shamrock also found that "the wording of the affidavit of merit

statute contemplates such potential vicarious liability," and that

"[t]he provision's focus is on the resulting harm, not on the

business forms of the named defendants." Id. at 23. We refused

to "read [it] in a crabbed fashion that leads to anomalous

results." Id. at 26.

25 A-5439-15T1

We ruled: "Read together, [Nagim and Shamrock] hold that when a

firm's shareholders are licensed persons under the statute, a

plaintiff is required to provide an AOM in order to pursue

litigation against the firm alone under respondeat-superior

principles." Id. at 273.9

We later ruled "[t]he requirement to serve an AOM also applies

. . . where a plaintiff 'wishes to invoke principles of vicarious

liability' against partners of a law firm for a fellow partner's

malpractice or negligence." Mortg. Grader, Inc. v. Ward & Olivo,

LLP, 438 N.J. Super. 202, 214 (App. Div. 2014) (quoting Shamrock,

416 N.J. Super. at 23). In affirming on other grounds, the Supreme

Court stated it was sufficient that the plaintiff served an AOM

on the law firm and the allegedly negligent partner. Mortg.

Grader, Inc. v. Ward & Olivo, LLP, 225 N.J. 423, 443 (2016).

Finally, in McCormick v. State, 446 N.J. Super. 603 (App.

Div. 2016), a prisoner sued the State alleging negligent treatment

by the prison's contract medical staff. Id. at 607-08. Faced

with the issue "whether the plaintiff can avoid the need to obtain

9

Subsequently, we have reiterated that Shamrock requires

plaintiffs to provide AOMs to entities "if the claim were solely

based upon a theory of vicarious liability or agency" for an

employee or agent who was a licensed person who allegedly acted

negligently. Hill Intern. v. Atl. City Bd. of Educ., 438 N.J.

Super. 562, 591-93 (App. Div. 2014), appeal dismissed, 224 N.J.

523 (2016); Mazur, 441 N.J. Super. at 183.

26 A-5439-15T1

an AOM by suing only the public entity and not the professionals,"

"we conclude[d] that such circumvention of the statute is

impermissible and affirm[ed] the trial court's determination that

an AOM was required." Id. at 607. We ruled:

If such professionals while serving the State,

or for that matter any other public entity,

engage in harmful conduct that deviates from

the standards of care of their respective

fields of licensure, and a plaintiff claims

that the defendant public entity is liable for

that harm under agency principles, then an AOM

from an appropriate qualified person is

necessary to support the lawsuit.

[Id. at 613 (emphasis added).]

McCormick reiterated that "an AOM is still 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." Id. at 613-16.

Thus, we held that "an AOM [is] required when a tort plaintiff

sues a public entity for vicarious liability based on the

professional negligence of its staff" in their capacity as licensed

persons. Id. at 617-18. "If an AOM is called for, a plaintiff

may not evade the requirement by suing only a public entity and

arguing that the entity is not a licensee listed under [N.J.S.A.

2A:53A-26]." Id. at 614.

In McCormick, we also suggested that, "if the professional

who caused the harm is a physician, the more stringent

27 A-5439-15T1

specialization and sub-specialization requirements of the Patients

First Act, as set forth in Section 41, may constrict the range of

appropriate affiants." Id. at 613 n.3. In remanding, we

instructed that "where a plaintiff chooses to sue a public entity

for medical malpractice on a theory of vicarious liability," the

defendant should indicate the "specialties of the physicians, if

any, involved in the defendant's care, along with whether the

treatment the defendant received involved those specialties," and

that the plaintiff must provide the AOMs "required under Sections

27 and 41 of the AOM statute [] that correspond to the

qualifications of the individual professionals disclosed by the

defendant." Id. at 619.

We now hold what we suggested in McCormick: N.J.S.A. 2A:53A-

41(a)'s requirements for an AOM from a person with the same

specialty as the allegedly negligent specialist physician apply

when the plaintiff sues only an entity and claims it is vicariously

liable for the specialist physician's negligence. As a matter of

"fundamental fairness," if a plaintiff invokes the principles of

vicarious liability to hold an entity liable for a specialist

physician's negligence, then the plaintiff under those principles

should have to provide the same AOM and expert testimony as

required to find liability against the specialist physician.

Walker, 425 N.J. Super. at 152. Again, "if the employee is not

28 A-5439-15T1

to be held responsible for his wrongdoing, the employer whose

liability is asserted solely upon the basis of imputed

responsibility for his employee's wrong cannot in fairness and

justice be required to respond in damages for it.'" Ibid. (quoting

Kelley, 16 N.J. at 271).

We find further support in a similar case applying a

specialist physician statute similar to N.J.S.A. 2A:53A-41.10 A

10

That Michigan statute provides:

In an action alleging medical malpractice, a

person shall not give expert testimony on the

appropriate standard of practice or care

unless the person is licensed as a health

professional in this state or another state

and meets the following criteria:

(a) If the party against whom or on whose

behalf the testimony is offered is a

specialist, specializes at the time of the

occurrence that is the basis for the action

in the same specialty as the party against

whom or on whose behalf the testimony is

offered. However, if the party against whom

or on whose behalf the testimony is offered

is a specialist who is board certified, the

expert witness must be a specialist who is

board certified in that specialty.

(b) . . . [The expert must have] devoted a

majority of his or her professional time to

either or both of the following:

(i) The active clinical practice of the same

health profession in which the party against

whom or on whose behalf the testimony is

offered is licensed and, if that party is a

29 A-5439-15T1

plaintiff sued only the hospital, and claimed she therefore did

not have to file an AOM from an expert in the same specialty as

the allegedly negligent specialist physician. Nippa v. Botsford

Gen. Hosp., 668 N.W.2d 628, 630 (Mich. Ct. App. 2003).

The Court of Appeals of Michigan rejected that claim based

on principles of vicarious liability. Id. at 630-32. "[U]nder a

vicarious-liability theory, a principal '"is only liable because

the law creates a practical identity"' between the principal and

its agents. The principal is held to have done what the agent has

done." Id. at 631 (citation omitted). "Applying th[at] logic,"

the court ruled "that the standard of care applicable to the

hospital is the same standard of care that is applicable to the

physicians named in the complaint. For all practical purposes the

hospital stands in the shoes of its agents (the doctors)." Ibid.

Based on those principles of vicarious liability, the

Michigan Court of Appeals ruled "that with regard to vicarious

specialist, the active clinical practice of

that specialty.

(ii) The instruction of students . . . in the

same health profession in which the party

against whom or on whose behalf the testimony

is offered is licensed and, if that party is

a specialist, an accredited . . . program in

the same specialty.

[MCLS § 600.2169(1) (emphasis added).]

30 A-5439-15T1

liability, [the] medical-malpractice law applicable to a physician

is also applicable to the physician's hospital. . . . All [its]

procedural requirements are applicable to the hospital in the same

manner and form as if the doctor were a named party to the lawsuit."

Ibid. Thus, the court held "[a] plaintiff must submit with a

medical-malpractice complaint against an institutional defendant

an affidavit of merit from a physician who specializes or is board-

certified in the same specialty as that of the institutional

defendant's agents involved in the alleged negligent conduct."

Id. at 632. Echoing our case law, the court ruled that a

"[p]laintiff cannot avoid the procedural requirements of the law

by naming only the principal as a defendant in a medical-

malpractice lawsuit. . . . It would be absurd to have one set of

legal rules for a hospital and another set of legal rules for its

agents." Id. at 631.11

Our similar ruling based on the principles of vicarious

liability likewise prevents plaintiffs from evading the

11

The court of appeals also held that "the term 'party' under MCL

600.2169(1)(a) encompasses the agents for whose alleged negligent

acts the hospital may still be liable." 668 N.W.2d at 632. The

dissenting opinion accused the majority of "rewriting MCL 600.2169

to make it less 'illogical[.]'" Id. at 632 (quoting id. at 634

(Whitbeck, C.J., dissenting)). Such a criticism does not apply

here, as we base our ruling not on statutory construction of

N.J.S.A. 2A:53A-41(a) but on the judicially-crafted principles of

vicarious liability.

31 A-5439-15T1

requirements of N.J.S.A. 2A:53A-41(a) by suing only the health

care facility and not the specialist physician even while claiming

that the facility is liable based on the specialist physician's

negligence. Our ruling also avoids having one set of legal rules

for suits against specialist physicians and a different set for

the health care facilities alleged to be vicariously liable, which

would create uncertainty and complexity. Finally, our ruling also

serves N.J.S.A. 2A:53A-41's goals of weeding out frivolous

malpractice actions alleging negligence by specialist physicians,

avoiding increases in their medical malpractice insurance rates,

reducing their incentives to stop practicing or leave New Jersey,

and thus ensure that New Jersey citizens have access to medical

care by specialist physicians.

VI.

Finally, plaintiff contends that Dr. Bojko's AOM satisfies

the requirements in N.J.S.A. 2A:53A-41(a). However, that

"requires that plaintiff['s] medical expert must 'have specialized

at the time of the occurrence that is the basis for the

[malpractice] action in the same specialty or subspecialty' as

defendant['s] physicians." Nicholas, 213 N.J. at 468.

Dr. Bojko was a pediatrician, and was board-certified in

pediatrics and pediatric critical care medicine. It is undisputed

32 A-5439-15T1

that plaintiff, who was sixty-five-years old, was not treated by

a pediatrician when he went to defendant's emergency room (ER).

The diagnosis of alcohol abuse appeared on forms listing Dr.

Marcarious Mariyampillai as the attending and admitting physician,

and on a form electronically signed by Dr. Vincent Retirado.

Defendant's certification supporting its motion to dismiss

asserted that "[a] review of the ER chart for Mr. Tetto indicates

that the diagnosis in question was most likely made by the ER

doctor, Dr. Retirado, who is an Emergency Medicine specialist,

and/or the internist, Dr. Mariyampil[l]ai, who is an Internal

Medicine specialist," and that each was board-certified in their

specialty. Plaintiff does not contest defendant's certification.

Plaintiff does not dispute that "[e]mergency medicine . . .

[and] internal medicine . . . are all distinct specialty areas

recognized by the American Board of Medical Specialties." Id. at

484. Nor does he dispute that his care and treatment in the ER

for jaundice involved those specialties. See N.J.S.A. 2A:53A-

41(a). Thus, an expert providing the AOM must "have specialized

at the time of the occurrence that is the basis for the action in

the same specialty or subspecialty[.]" Ibid.

Moreover, as Dr. Mariyampillai and Dr. Retirado were board-

certified in internal medicine and emergency medicine

respectively, the expert providing the AOM must be "a physician

33 A-5439-15T1

credentialed by a hospital to treat patients for the medical

condition . . . that is the basis for the claim or action," or

"board certified in the same specialty" and "have devoted the

majority of his professional time to . . . the active clinical

practice of that specialty" or "the instruction of students . . .

in the same specialty." See N.J.S.A. 2A:53A-41(a)(1), (2).

Plaintiff does not claim Dr. Bojko met any of those

requirements. Instead, plaintiff argues that Dr. Bojko has

extensive experience as a healthcare administrator which would

allow him to opine that defendant was negligent in allowing the

inclusion and maintain in the hospital records of "this false

information." However, plaintiff cannot show that the diagnosis

was false without an AOM and expert testimony from an expert with

the same specialty as the specialist physician(s) who made that

diagnosis and put that diagnosis in the hospital records.

Because plaintiff failed to provide such an AOM, he could not

show those specialist physicians were negligent. For the same

reason, he cannot show the health care facility where they worked

was vicariously liable for those specialist physicians'

"negligence." Under the principles of vicarious liability, it

would be fundamentally unfair to allow him to bring a frivolous

medical malpractice action against defendant, who cannot in

fairness and justice be required to respond in damages for it.

34 A-5439-15T1

Affirmed.

35 A-5439-15T1