The opinion
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. In the interest of brevity, portions of an opinion may not have been summarized.
Linda Cowley v. Virtua Health System (A-47-18) (081891)
Argued November 19, 2019 -- Decided May 4, 2020
FERNANDEZ-VINA, J., writing for the Court.
The Court considers whether, in this case, the “common knowledge” exception
relieves plaintiffs of the obligation to serve an affidavit of merit as required by the
Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29.
Plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital (Virtua). A
physician entered an order directing nursing staff to insert a Nasogastric Tube (NG
Tube), a tube that passes through the nose into the stomach to deliver medicine, liquids,
and liquid food to a patient. According to Virtua’s records, Cowley removed her NG
Tube overnight and refused replacement. Cowley and her husband sued Virtua and
others, alleging defendants did not comply with the written order to insert an NG Tube
and that her condition deteriorated while the NG Tube was dislodged.
Defendants filed a demand for an affidavit of merit. Plaintiffs argued their duty to
provide an affidavit of merit was relieved because this matter was one of “common
knowledge.” The trial court dismissed plaintiffs’ complaint with prejudice, determining
that the common knowledge exception did not apply and an affidavit of merit was
required. The Appellate Division reversed. 456 N.J. Super. 278, 292 (App. Div. 2018).
The appellate court found the common knowledge exception applicable to this case,
reasoning that “common sense dictates that some action should have been taken when the
nurses were confronted with the sudden termination of Linda’s medical treatment that
was required by the physician charged with her care.” Id. at 291-92. The Court granted
certification. 236 N.J. 363 (2019).
HELD: Here, where a patient removed the tube herself and refused replacement,
important questions about the procedures, protocols, and duties of a licensed nurse in
these circumstances must be explained in order to establish a deviation in the standard of
care. In addition, important considerations about patient autonomy complicate the
standard-of-care analysis. A jury could not reach a determination as to a nurse’s
responsibility under these circumstances without the benefit of expert opinion as to the
appropriate balance between patient autonomy and prescribed treatment. An affidavit of
merit was therefore required.
1
1. The Affidavit of Merit Statute requires that, in malpractice actions, plaintiffs “provide
each defendant with an affidavit of an appropriate licensed person that there exists a
reasonable probability that the care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the complaint, fell outside acceptable
professional or occupational standards or treatment practices.” N.J.S.A. 2A:53A-27. The
statute’s primary purpose is to require plaintiffs in malpractice cases to make a threshold
showing that their claim is meritorious, in order that meritless lawsuits readily can be
identified at an early stage of litigation. Failure to provide an affidavit or its legal
equivalent is “deemed a failure to state a cause of action,” N.J.S.A. 2A:53A-29, requiring
dismissal with prejudice unless an equitable exception applies. (pp. 13-15)
2. One such equitable exception is the common knowledge exception, which applies
only in exceptionally rare cases in which an expert is not needed to demonstrate that a
defendant professional breached some duty of care because the carelessness of the
defendant is readily apparent to anyone of average intelligence. The Court stresses that
the existence of the exception alone does not mean that plaintiffs in malpractice cases
should not provide affidavits, even when they do not intend to rely on expert testimony at
trial. And plaintiffs who do not file affidavits of merit and are unsuccessful in persuading
a court that an expert is not necessary run the risk of having their cases dismissed for
failure to state a cause of action under N.J.S.A. 2A:53A-29. The exception is properly
invoked only when jurors are competent to assess simple negligence occurring without
expert testimony to establish the standard of ordinary care. (pp. 15-20)
3. A competent adult has the right to decline to have any medical treatment initiated or
continued. The right to make decisions concerning one’s body is protected by statute and
by the federal constitutional right of privacy. (pp. 20-21)
4. Here, plaintiffs did not satisfy the common knowledge exception and therefore were
not relieved of their obligation to provide an affidavit of merit. This is not simply a case
of failure to follow a physician’s order. The issue for the jury is not whether a nurse may
ignore a physician’s order, but rather what steps are required of a nurse when a patient
refuses reinsertion of an NG Tube after its removal. Included in that assessment will be
considerations about a patient’s exercise of a right to refuse treatment. And resolution of
that issue -- determination of what action, if any, should be taken under circumstances
like those presented here -- ultimately requires expert opinion as to the appropriate
standard of care, as well as the submission of an affidavit of merit. Here, plaintiffs
neither submitted an affidavit of merit nor satisfied an exception to that requirement, and
N.J.S.A. 2A:53A-29 requires dismissal with prejudice for noncompliance. (pp. 21-24)
REVERSED. The complaint is DISMISSED WITH PREJUDICE.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.
2
SUPREME COURT OF NEW JERSEY
A-47 September Term 2018
081891
Linda Cowley and
Robert Cowley, w/h,
Plaintiffs-Respondents,
v.
Virtua Health System,
Virtua Voorhees Hospital,
Robert Gibbons, R.N.,
and Helene Curran, R.N.,
Defendants-Appellants.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
456 N.J. Super. 278 (App. Div. 2018).
Argued Decided
November 19, 2019 May 4, 2020
Mary Kay Wysocki argued the cause for appellants
(Parker McCay, attorneys; Mary Kay Wysocki and
Carolyn R. Sleeper, of counsel, and Kathryn A.
Somerset, on the briefs).
Randi S. Greenberg argued the cause for respondents
(Sacchetta & Baldino, attorneys; Thomas F. Sacchetta,
on the brief).
1
Eric S. Poe argued the cause for amicus curiae New
Jersey Physicians United Reciprocal Exchange (Eric
S. Poe, of counsel and on the brief, and Abbey True
Harris, on the brief).
Anthony Argiropoulos argued the cause for amicus
curiae New Jersey Doctor-Patient Alliance (Epstein
Becker & Green, attorneys; Anthony Argiropoulos and
William Gibson, of counsel and on the brief).
Abbott S. Brown argued the cause for amicus curiae
New Jersey Association for Justice (Lomurro,
Munson, Comer, Brown & Schottland, attorneys;
Abbott S. Brown, Jonathan H. Lomurro, and Christina
Vassiliou Harvey, of counsel and on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
We must now decide whether the “common knowledge” exception
relieves plaintiffs of the obligation to serve an affidavit of merit as required by
the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. In support of
plaintiffs’ medical malpractice claim, they allege defendants failed to take
action after a food- and medicine-administering tube, properly inserted in
accordance with a physician’s order, was dislodged.
The Affidavit of Merit Statute requires plaintiffs alleging malpractice
against a licensed professional to include an affidavit from a medical expert in
their filing. The affidavit must provide that there exists a reasonable
probability the standard of care exercised in the alleged malpractice fell
2
outside the acceptable professional or occupational standards. This Court has
fashioned an exception to that requirement for cases in which the alleged
conduct or failure to act, if accepted as true, would be readily recognizable, by
a person of average intelligence, as a failure to exercise the appropriate
standard of care. The issue here, is whether the failure to act when a patient
dislodges her tube and refuses its reinsertion would fall within the jury’s
common knowledge as a departure from the acceptable standards.
The trial court reasoned that a jury could not use common knowledge to
determine what standard of care a nurse should use when a tube is
intentionally dislodged by the patient. The Appellate Division reversed,
concluding such a determination was not necessary. The Appellate Division
found a jury could use common knowledge to determine a nurse should take
some action when a tube is dislodged and that no affidavit of merit was needed
in this case.
We disagree with the Appellate Division’s findings. The common
knowledge exception to the Affidavit of Merit Statute applies only when
expert testimony is not required to prove a professional defendant’s
negligence. Thus, in the limited cases where a person of reasonable
intelligence can use common knowledge to determine that there was a
deviation from a standard of care, an expert is no more qualified to attest to the
3
merit of a plaintiff’s malpractice practice claim than a non-expert. This is not
one of those cases. Here, where a patient removed the tube herself and refused
replacement, important questions about the procedures, protocols, and duties
of a licensed nurse in these circumstances must be explained in order to
establish a deviation in the standard of care. In addition, important
considerations about patient autonomy complicate the standard-of-care
analysis. A jury could not reach a determination as to a nurse’s responsibility
under these circumstances without the benefit of expert opinion as to the
appropriate balance between patient autonomy and prescribed treatment. An
affidavit of merit was therefore required, and we accordingly reverse the
judgment of the Appellate Division.
I.
A.
We begin by summarizing the pertinent facts and procedural history.
Plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital (Virtua) on
October 17, 2014, with abdominal discomfort. After undergoing testing,
Cowley was diagnosed with multiple gallstones and a small bowel obstruction,
among other complications, leading to a corrective procedure. Subsequently,
one of Cowley’s physicians entered an order directing nursing staff to insert a
Nasogastric Tube (NG Tube), a tube that passes through the nose into the
4
stomach to deliver medicine, liquids, and liquid food to a patient. The tube
was inserted on October 18, 2014.
According to Virtua’s records, Cowley removed her NG Tube and IV
lines overnight and refused replacement. Cowley alleges the nurses on staff,
including defendants Robert Gribbon, R.N., and Helene Curran, R.N., did not
reinsert the tube. Cowley subsequently underwent a series of procedures and ,
by the time she was discharged from the hospital at her request, she was
diagnosed with several medical conditions. Cowley claims the post-operative
complications she suffered resulted from the defendants’ failure to reinsert the
NG Tube.
B.
Linda Cowley and her husband Robert, sued Virtua, Virtua Health
System, Nurse Gribbon, and Nurse Curran in Superior Court, Camden County ,
alleging defendants did not comply with the written order to insert an NG
Tube. The Cowleys further alleged defendants did not properly treat Linda,
leading her to aspirate and her condition to deteriorate while the NG Tube was
dislodged.
Defendants filed an answer, which included a demand for an affidavit of
merit pursuant to the Affidavit of Merit Statute. Plaintiffs subsequently failed
to file the affidavit by the requisite deadline, and defendants filed a motion to
5
dismiss based upon plaintiffs’ failure to serve an affidavit. Plaintiffs then
submitted their attorney’s certification in opposition to the motion to dismiss,
arguing their duty to provide an affidavit of merit was relieved because this
matter was one of “common knowledge.”
Following oral argument, the trial court granted defendants’ motion to
dismiss with prejudice. The court ruled that the common knowledge exception
did not apply and an affidavit of merit was required. The trial court held that a
jury would not be called upon to determine whether the NG Tube was initially
inserted, but to determine the standard of care that governed the nurses’
conduct after the NG Tube is dislodged. The trial court stated that a jury
cannot determine the standard of care in such a case without knowing what a
nurse should do when an NG Tube inserted pursuant to an order is
subsequently removed by the patient and the patient refuses reinsertion.
According to the judge, the facts of this case changed the matter from one
where a jury with ordinary knowledge and experience could make a
determination, to one where a jury requires expert testimony to determine the
standard of care. The trial court rejected plaintiffs’ argument that once the NG
Tube was removed, the initial order to insert the tube was still in place,
maintaining a continuing obligation to reinsert the tube.
6
The Appellate Division reversed. Cowley v. Virtua Health Sys., 456
N.J. Super. 278, 292 (App. Div. 2018). The Appellate Division first noted that
the purpose behind the Affidavit of Merit Statute is “to weed out frivolous
complaints, not to create hidden pitfalls for meritorious ones.” Id. at 288
(quoting Buck v. Henry, 207 N.J. 377, 383 (2011)). The court explained that
the Affidavit of Merit Statute requires a plaintiff to provide an expert’s
affidavit stating the action has merit but is generally not concerned with the
plaintiff’s ability to prove the allegation in the complaint. Ibid. As such, the
Appellate Division held the Legislature intended the statute to readily identify
meritless lawsuits at an early stage of litigation. Ibid.
The Appellate Division observed, however, that the affidavit of merit
requirement “is not absolute.” Id. at 289. The court explained that in
situations where the jurors’ knowledge as laypersons suffices to enable them to
assess a defendant’s negligence without the benefit of expert testimony, an
affidavit of merit against a licensed professional is not required. Ibid. The
court noted that the common knowledge exception is applied narrowly to cases
that “involve obvious or extreme error,” id. at 289-90, and explained that
plaintiffs’ claim in this case presents the circumstance “of an alleged obvious
act of omission, rather than an affirmative action that clearly bespoke
negligence,” id. at 291.
7
Noting that federal courts have applied the common knowledge
exception in cases turning on alleged omissions, the Appellate Division found
the exception applicable to this case. Id. at 291-92. Ultimately, the Appellate
Division concluded a layperson could determine that plaintiffs’ claim based on
the nurses’ lack of action when the NG Tube was dislodged -- including their
failure to call the physician for instructions -- has merit in light of the fact that
the physician had ordered it remain inserted. Id. at 292. The court reasoned
“common sense dictates that some action should have been taken when the
nurses were confronted with the sudden termination of Linda’s medical
treatment that was required by the physician charged with her care.” Ibid.
However, the Appellate Division stressed that its conclusion did not
mean that plaintiffs’ claim would automatically survive a motion for summary
judgment or challenge during trial. Ibid. The court explained that the holding
established only that at the early stage of the case, “there is no need to ‘weed
out’ plaintiffs’ claim.” Ibid.
We granted defendants’ petition for certification. 236 N.J. 363 (2019).
We also granted the motions of the New Jersey Doctor-Patient Alliance
(NJDPA), the New Jersey Physicians United Reciprocal Exchange (PURE),
and the New Jersey Association for Justice (NJAJ) to participate as amici
curiae.
8
II.
A.
Defendants Virtua, Virtua Health System, Nurse Gribbon, and Nurse
Curran argue this is a complex medical malpractice case. Defendants contend
an NG Tube was successfully inserted pursuant to a physician’s order, after
which Linda Cowley chose to remove the tube and refuse replacement.
Defendants frame the issue as whether the nurses took adequate action in
response to a patient’s refusal of reinsertion of a dislodged NG Tube, which
they argue is not a matter of “common knowledge” within the purview of a lay
juror’s average intelligence and understanding.
Defendants also assert the trial court correctly rejected plaintiffs’
oversimplification of the issues, because a patient’s refusal of medical
treatment raises serious questions about a provider’s responsibility for and
manner of care. They argue the Appellate Division oversimplified the severity
of the medical malpractice matter, which requires expert opinion on the
standard of care initiated by an affidavit of merit. Defendants submit that
contrary to the Appellate Division’s holding, the nurses’ conduct at issue was
not merely a “negligent omission” because the NG Tube was not reinserted
after Linda Cowley refused that procedure.
9
Defendants further assert the misapplication of the law by the Appellate
Division resulted in a disregard for plaintiffs’ statutory obligation to provide
an affidavit of merit and, moreover, ignored important public policy requiring
respect for patient autonomy.
B.
Amicus curiae NJDPA, aligned with defendants’ position, argues that
the Appellate Division’s decision should be reversed, and plaintiffs’ complaint
should be dismissed for failure to comply with the Affidavit of Merit Statute.
NJDPA submits the Appellate Division misapplied the very narrow common
knowledge exception to this case. NJDPA contends that unless the Appellate
Division’s decision is reversed, it will negatively alter the medical malpractice
landscape. NJDPA asserts that the standard of care of a nurse treating a
patient who removes an NG Tube, and refuses reinsertion, is not within the
average understanding of a juror and thus warranted an affidavit of merit.
C.
Amicus curiae PURE, also aligned with defendants’ position, contends
that the Appellate Division’s decision should be reversed. Addressing the
issue from an insurance provider’s perspective, PURE argues that expanding
the common knowledge exception creates uncertainty in the medical
malpractice insurance industry that will negatively impact insurance
10
companies, physicians, and patients alike. PURE argues that if medical
malpractice claims are scrutinized by judges rather than by medical
professionals via an affidavit of merit, the predictability of insurance claims
will decrease, which will increase expenses and rates.
D.
Plaintiffs Linda and Robert Cowley counter that this case does not
implicate public policy regarding a patient’s autonomy. Rather, plaintiffs
argue the issue is whether defendants’ failure to act upon discovery of the
dislodged NG Tube falls within the common knowledge exception to the
affidavit of merit requirement. Plaintiffs argue defendants overlook the
significance of the fact that the order for the NG Tube remained in effect after
it was dislodged, and a jury does not need expert testimony to comprehend the
significance of a physician’s order. Further, plaintiffs argue the fact that
defendants did nothing after learning the order was not followed is within the
scope of the lay juror’s common knowledge; the reasons for noncompliance
with the order are irrelevant.
E.
In support of plaintiffs’ position, NJAJ asserts the Appellate Division
properly found the common knowledge exception applied because the
complaint alleged a nurse violated a doctor’s order to maintain placement of an
11
NG Tube. NJAJ also submits plaintiffs’ claim should not be subject to
dismissal with prejudice on affidavit of merit grounds without the opportunity
to resolve the issue at a Ferreira conference.1 In sum, NJAJ asserts this Court
should affirm the Appellate Division, establish that a nurse’s failure to follow
a doctor’s order is at least prima facie evidence of negligence sufficient to
allow the case to proceed, and ultimately instruct trial courts of the obligation
to resolve such issues at a Ferreira conference.2
III.
A.
Our Court reviews de novo the statutory interpretation issue of whether a
cause of action is exempt from the affidavit of merit requirement. See Triarsi
v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011). We
therefore owe no deference to the trial court or Appellate Division if they have
incorrectly interpreted the law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13
(2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995)).
1
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
2
This argument fails to recognize that the trial court determined an affidavit
of merit was required and none was provided in response. There was no issue
of sufficiency to be addressed at a Ferreira conference.
12
The overriding goal when engaging in statutory construction is “‘to
determine the Legislature’s intent.’ The first step in determining the
Legislature’s intent is to look at the plain language of the statute.” Hubbard v.
Reed, 168 N.J. 387, 392 (2001) (quoting Dep’t of Law & Pub. Safety v.
Gonzalez, 142 N.J. 618, 627 (1995)). Because our main purpose in reviewing
statutes is to give life to the plain language, we will refer to extrinsic sources
to determine legislative intent “[o]nly if the words of the enactment are
shrouded in ambiguity.” Zabilowicz, 200 N.J. at 513. “[W]hen a ‘literal
interpretation of individual statutory terms or provisions’ would lead to results
‘inconsistent with the overall purpose of the statute,’ that interpretation should
be rejected.” Hubbard, 168 N.J. at 392-93 (quoting Cornblatt v. Barow, 153
N.J. 218, 242 (1998)).
B.
The New Jersey Affidavit of Merit Statute, set forth at N.J.S.A. 2A:53A-
26 to -29, requires in part that,
[i]n 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
13
complaint, fell outside acceptable professional or
occupational standards or treatment practices. . . .
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].
[N.J.S.A. 2A:53A-27.]
The Affidavit of Merit Statute’s primary purpose “is ‘to require plaintiffs in
malpractice cases to make a threshold showing that their claim is meritorious,
in order that meritless lawsuits readily [can] be identified at an early stage of
litigation.’” Cornblatt, 153 N.J. at 242 (quoting In re Petition of Hall, 147 N.J.
379, 391 (1997)). As such, in enacting the statute, the Legislature was not
concerned with a plaintiff’s ability to prove the allegation contained in his or
her complaint, but rather “with whether there is some objective threshold merit
to the allegations.” Hubbard, 168 N.J. at 394 (quoting Hubbard v. Reed, 331
N.J. Super. 283, 292-93 (App. Div. 2000)).
To demonstrate the threshold of merit, the Affidavit of Merit Statute
“requires plaintiffs to provide an expert opinion, given under oath, that a duty
of care existed and that the defendant breached that duty.” Ibid. The Affidavit
of Merit Statute applies only to the duty of care and breach of duty of care
elements of a negligence claim, not to causation or damages; an affidavit need
only prove that “the care, skill or knowledge . . . fell outside acceptable
14
professional or occupational standards or treatment practices.” Id. at 390
(quoting N.J.S.A. 2A:53A-27).
The failure to provide an affidavit or its legal equivalent is “deemed a
failure to state a cause of action,” N.J.S.A. 2A:53A-29, and this Court has
“construed the statute to require dismissal with prejudice for noncompliance ,”
A.T. v. Cohen, 231 N.J. 337, 346 (2017) (citing Cornblatt, 153 N.J. at 247).
However, this Court also recognizes equitable exceptions to the statutory
requirements “to ‘temper the draconian results of an inflexible application of
the statute,’” and has crafted “mechanisms to draw attention to and facilitate
satisfaction of this statutory obligation and its goals.” Ibid. (quoting Ferreira,
178 N.J. at 151). One such mechanism is the common knowledge exception.
C.
On its face, the Affidavit of Merit Statute applies to any action involving
professional malpractice, and no exception is made for common knowledge
cases. Id. at 393. In the exceptionally rare cases in which the common
knowledge exception applies, however, an expert is not needed to demonstrate
that a defendant professional breached some duty of care “where the
carelessness of the defendant is readily apparent to anyone of average
intelligence.” Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).
15
In those exceptional circumstances, the “jurors’ common knowledge as
lay persons is sufficient to enable them, using ordinary understanding and
experience, to determine a defendant’s negligence without the benefit of the
specialized knowledge of experts.” Hubbard, 168 N.J. at 394 (quoting Estate
of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). Thus, a
plaintiff in a malpractice case is exempt, under the common knowledge
exception, from compliance with the affidavit of merit requirement only where
it is apparent that “the issue of negligence is not related to technical matters
peculiarly within the knowledge of [the licensed] practitioner[].” Sanzari v.
Rosenfeld, 34 N.J. 128, 142 (1961).
The primary purpose of the statute is to “require plaintiffs . . . to make a
threshold showing that their claim is meritorious.” Hubbard, 168 N.J. at 394
(internal quotation marks omitted) (quoting Cornblatt, 153 N.J. at 242).
However, “ [i]f jurors, using ordinary understanding and experience and
without the assistance of an expert, can determine whether a defendant has
been negligent, the threshold of merit should be readily apparent from a
reading of plaintiff’s complaint.” Id. at 395.
Thus, in Hubbard, where a doctor pulled the wrong tooth from his
patient’s mouth, the Court recognized that it “has long been settled that pulling
the wrong tooth is negligent as a matter of common knowledge. Id. at 396
16
(citing Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954)). The Court
concluded that “the average layperson could apply his or her general
understanding and knowledge to find that the defendant . . . breached a duty of
care.” Ibid.
In Palanque v. Lambert-Woolley, a plaintiff sought medical treatment
for heavy menstrual bleeding, and the defendant ordered two pregnancy tests.
168 N.J. 398, 400 (2001). The defendant misread the first test, concluded
plaintiff was pregnant, and then ordered a second test, which defendant
misread again as confirming that plaintiff was pregnant. Ibid. An
investigation determined that defendant had read the test results as being 1145
and 1421 MIU/ML, which indicated an ectopic pregnancy. Id. at 401.
Defendant diagnosed plaintiff as having an ectopic pregnancy. Id. 400-01.
The numbers 1145 and 1421, however, were actually the specimen’s
identification numbers on the laboratory report, not the MIU/ML measurement.
Ibid. The Court concluded that “[b]ecause defendant’s careless acts are quite
obvious, a plaintiff need not present testimony at trial to establish the standard
of care.” Id. at 406.
Similarly, in Estate of Chin v. Saint Barnabas Medical Center, a patient
died from an air embolism during a diagnostic hysteroscopy, during which
someone accidentally connected a gas line rather than a fluid line to the
17
patient’s uterus. 160 N.J. 454, 460 (1999). The Court concluded that the
common knowledge exception applied, noting that “if there is a hook-up which
is incorrect, that . . . is a matter of common knowledge and a jury can draw the
inference that there was professional negligence.” Id. at 470 (ellipsis in
original). That is because the case “hinged primarily on the jury’s
determinations regarding who did what with the exhaust line, rather than with
regard to professional standards of care.” Id. at 471.
The common knowledge exception is construed narrowly “to avoid non-
compliance with the statute.” Hubbard, 168 N.J. at 397. The existence of the
exception alone does not mean that plaintiffs in malpractice cases should not
provide affidavits, even when they do not intend to rely on expert testimony at
trial. This Court has established that “[i]n most . . . cases, expert testimony
will be required to establish both a standard of care and breach of that standard
by the defendant, and a plaintiff who fails to present testimony could be
subject to involuntary dismissal pursuant to Rule 4:37-2(b).” Ibid. And
plaintiffs who do not file affidavits of merit and are unsuccessful in persuading
a court that an expert is not necessary run the risk of having their cases
dismissed for failure to state a cause of action under N.J.S.A. 2A:53A-29.
Ibid.
18
Because of the innate complexities of medical malpractice actions, such
issues do not usually fall within the common knowledge of an average juror.
Rosenberg, 99 N.J. at 325. This Court has determined that “[t]he test of need
of expert testimony is whether the matter to be dealt with is so esoteric that
jurors of common judgment and experience cannot form a valid judgment as to
whether the conduct of the party was reasonable.” Butler v. Acme Mkts., Inc.,
89 N.J. 270, 283 (1982).
At its core, the common knowledge exception allows jurors to “supply
the applicable standard of care . . . to obviate the necessity for expert
testimony relative thereto.” Sanzari, 34 N.J. at 141. However, “a jury of
laymen cannot be allowed to speculate as to whether the procedure followed
by a [defendant professional] conformed to the required professional
standards.” Schueler v. Strelinger, 43 N.J. 330, 345 (1964). Rather, the
common knowledge exception to the Affidavit of Merit Statute applies only to
cases where expert testimony is not needed to establish the applicable standard
of care. Chin, 160 N.J. at 469. More specifically, the exception is properly
invoked only when “jurors are competent to assess simple negligence
occurring . . . without expert testimony to establish the standard of ordinary
care.” Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 292 (App. Div.
1995). This is not one of those cases.
19
In this case, in the hierarchal setting of a multi-disciplinary medical team
providing care to a hospitalized patient, plaintiff alleges that the overnight
duty nurses charged with monitoring her as the hospitalized patient were
negligent in that care. To assess a deviation in the standard of care in such a
setting, one must know the procedures, protocols, and scope of duties of the
licensed professional nurses in such circumstances. An expert is required for
that explanation. Such information is outside of the realm of common
knowledge. And, importantly, considerations of patient autonomy must be
added to the consideration of the requisite professional standards in this
matter.
D.
The right of patient autonomy is prescribed by N.J.S.A. 26:2H-12.8(e),
which states, “[e]very person admitted to a general hospital as licensed by the
Department of Health . . . shall have the right . . . [t]o refuse treatment to the
extent permitted by law.” Thus, absent special circumstances, providers may
not force a patient to undergo an invasive procedure where a competent patient
does not consent to that procedure.
The right to control one’s own body is a basic societal right, long
recognized in the common law:
No right is held more sacred, or is more carefully
guarded by the common law, than the right of every
20
individual to the possession and control of his own
person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law. . . .
“The right to one’s person may be said to be a right of
complete immunity: to be let alone.”
[In re Conroy, 98 N.J. 321, 346 (1985) (quoting Union
Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)).]
Equally important as “the doctor’s role to provide the necessary medical facts”
is “the patient’s role to make the subjective treatment decision.” Id. at 347.
“Thus, a competent adult . . . has the right to decline to have any medical
treatment initiated or continued.” Ibid.
The right to make “decisions concerning one’s body is also protected by
the federal constitutional right of privacy.” Id. at 348. This Court in In re
Quinlan held that the right of privacy, affirmed by the United States Supreme
Court, “is broad enough to encompass a patient’s decision to decline medical
treatment under certain circumstances,” even if that decision might lead to the
patient’s death. 70 N.J. 10, 40 (1976).
IV.
Applying those legal principles to the facts of this case, we conclude
plaintiffs did not satisfy the common knowledge exception and therefo re were
not relieved of their obligation to provide an affidavit of merit as required by
the Affidavit of Merit Statute.
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We reject the Appellate Division’s conclusion that “common sense
dictates that some action should have been taken when the nurses were
confronted with the sudden termination of Linda’s medical treatment.”
Cowley, 456 N.J. Super. at 292.
We disagree with the Appellate Division that this case “presents the
circumstance of an alleged obvious act of omission, rather than an affirmative
action that clearly bespoke negligence,” id. at 291, thus not requiring the
“weeding out” of plaintiffs claims. That approach allows plaintiffs to
circumvent the Affidavit of Merit Statute by disguising complex negligence
cases with common knowledge allegations as to acts of omission. Determining
whether action should or should not have been taken is not enough. Jurors
cannot be allowed to speculate as to whether a procedure conformed to the
required professional standards of care. Schueler, 43 N.J. at 345. Allowing
the Appellate Division’s decision to stand, which permits jurors to speculate
that some action should have been taken, rather than requiring a determination
of what action should have been taken to comply with the applicable standard
of care expands application of the common knowledge exception to
speculation.
The true question in this matter is much more complex. This is not
simply a case of failure to follow a physician’s order. The issue for the jury is
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not whether a nurse may ignore a physician’s order, but rather what steps are
required of a nurse when a patient refuses reinsertion of an NG Tube after its
removal. Included in that assessment will be considerations about a patient’s
exercise of a right to refuse treatment. And resolution of that issue --
determination of what action, if any, should be taken under circumstances like
those presented here -- ultimately requires expert opinion as to the appropriate
standard of care, as well as the submission of an affidavit of merit.
The essential facts of this case as pled are not in dispute: defendants
inserted plaintiff’s NG Tube pursuant to the physician’s order; plaintiff
removed the tube and subsequently refused reinsertion. This case thus
involves the proper procedures and protocols involving reinsertion of an NG
Tube, complicated by the right of a patient to refuse medical treatment and the
serious implications that stem from such a refusal. The medical issue
presented requires expert medical proofs concerning the requisite standard of
care in these settings, especially when treating a patient who refuses treatment.
Refusal of care forces medical professionals to walk the fine line
between providing a patient with appropriate care and ensuring the patient’s
right to autonomy is respected. A determination of what action should or may
be taken is a difficult path to navigate for a medical provider. That same
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determination is even more difficult when entrusted to lay jurors with little to
no medical training.
A jury does not have common knowledge in regard to what should be
done in this situation. The standard of care for a nurse in this case requires
clarity on what should have been done, and the effect of a patient’s refusal on
that mandate. The issue of what is required of a nurse once refusal occurs goes
beyond the common knowledge of an average juror. Therefore, plaintiffs were
required to submit an affidavit of merit to establish the standard of care for
defendants in this case.
Pursuant to N.J.S.A. 2A:53A-29, where a plaintiff fails to provide an
affidavit of merit within the statutorily mandated timeframe, it shall be deemed
a failure to state a cause of action unless the plaintiff satisfies an exception to
the affidavit of merit requirement. Here, plaintiffs neither submitted an
affidavit of merit nor satisfied an exception to that requirement. They
therefore failed to state a cause of action under N.J.S.A. 2A:53A-29, which
requires dismissal with prejudice for noncompliance.
V.
We reverse the judgment of the Appellate Division and dismiss the
complaint with prejudice.
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CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.
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