PARASTU SHARIFI v. PRINCETON MEDICAL CENTER, ETC. (L-1836-21, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0493-21

PARASTU SHARIFI,

Plaintiff-Appellant,

v.

PRINCETON MEDICAL

CENTER, a/k/a PENN

MEDICINE PRINCETON

HEALTH CENTER,

Defendant-Respondent.

_________________________

Submitted June 8, 2022 – Decided July 20, 2022

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-1836-21.

Parastu Sharifi, appellant pro se.

Farkas & Donohue, LLC, attorneys for respondent

(Beth A. Hardy, of counsel and on the brief).

PER CURIAM

Plaintiff Parastu Sharifi, a patient who was admitted to and received treatment

at Princeton Medical Center, appeals an order dismissing her complaint with

prejudice due to her failure to file an affidavit of merit pursuant to the Affidavit of

Merit Statute, N.J.S.A. 2A:53A-26 to -29. Because we agree plaintiff was required

to submit an affidavit of merit, we affirm.

I.

Plaintiff, representing herself, filed a complaint naming as the defendant

"Princeton Medical Center, A Health Center/Hospital AKA as Penn Medicine

Princeton [H]ealth Center" (PMC). In the complaint, plaintiff described

defendant as "a health care provider." In the civil case information statement

plaintiff filed with her complaint, plaintiff checked "Yes" in response to the

question, "[i]s this is a professional malpractice case?" Underneath where she

checked "Yes," the following instruction was provided: "If you have checked

'Yes,' see N.J.S.A. 2A:53A-27 and applicable case law regarding your obligation

to file an affidavit of merit."

Plaintiff made the following factual allegations in the complaint. On

March 10, 2020, plaintiff had "a massive panic attack." Plaintiff "suffered from

a nervous breakdown and feeling[s] of helplessness, anxiety, and hopelessness"

and was "crying and suffered from [] high blood pressure due to her emotional

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distress." "She started to cough severely, which resulted in her fainting due to

a drop in her blood oxygen level." The East Windsor Township Rescue Squad

"was called in to her rescue" and transported her to PMC. Plaintiff "was being

sent to the hospital to get help for her anxiety." Plaintiff "quickly regained

consciousness" but had "difficulty" in stopping her cough and in "control[ling]

her emotional state." Although plaintiff was aware of her surroundings, "she

was non[-]verbal and mentally extremely distressed." While her eyes were

closed and she was crying "nonstop," plaintiff "noticed" a rescue-squad member

directing the vehicle driver to take her to "a psychiatric part of the hospital."

After she arrived at "the hospital," plaintiff was "placed . . . on a bed" and

"noticed a female voice who was trying to undress her forcefully." Plaintiff held

onto her shirt to prevent hospital staff from underdressing her. Plaintiff "noted

that another hospital staff member told the nurse that you cannot undress her if

she is refusing to cooperate." A couple of minutes later, plaintiff heard a male

voice. He introduced himself to her as a doctor and "informed her of her rights

to refuse the treatment." According to plaintiff, "they injected her with a

medication without her consent . . . ."

A "short time" later, plaintiff calmed down, "perhaps due to the effect of

the medication." Recalling she had had her dog in her car while shopping,

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plaintiff "panicked for the dog's well being," got out of the bed, asked for her

shoes and belongings, and informed a nurse she was worried about her dog and

wanted to leave the hospital. The nurse asked plaintiff for information regarding

her car so hospital staff could request local police to assist plaintiff with her dog

until she was released from the hospital. After plaintiff provided that

information to the nurse, "about three or four security men entered the room and

pinned her to the bed and strapped her extremities by force to the bed." Plaintiff

"started to yield [sic] that she gives no consent to any treatment and she repeated

the sentence multiple times, 'I give NO consent to the hospital staff members for

any type of treatment.'" While plaintiff "was forcefully pinned to the bed, the

nurse injected her with another shot on her arm, again without her consent and

right after her refusal for treatment." Three "big male security staff on top of

her strapped her hands and ankles to the bed."

Plaintiff "was left in that condition for hours." She was "denied the right

to use the bathroom" and urinated on herself. "[A]fter hours of physical and

mental torture being pin[ned] in that position," plaintiff provided a requested

urine sample and was subsequently discharged.

Plaintiff claimed in the complaint that as a "result of these mistreatment

[sic] by these hospital staff," plaintiff "suffer[ed] severe emotional and mental

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distress, anguish, doubt, uncertainty, sleepless nights, degradation, headaches,

inconvenience, insecurity, fear, distrust and loss of enjoyment of life." Plaintiff

alleged "[a]nybody could go healthy in[to] this part of [the] hospital, and come

back totally mentally disturbed due to their unacceptable treatment of their

patients."

In the first count of the complaint, entitled "False Imprisonment, Physical

and Mental Torture, An Intentional Tort," plaintiff cited the "Rights of patients,"

N.J.S.A. 30:4-24.2, and asserted defendant had violated those rights. In the

second count, entitled "For Negligent Supervision, or Retention," plaintiff

accused defendant of breaching its "duty to exercise reasonable care and acted

negligently and carelessly in the hiring, training, and supervision by failing to

provide proper oversight for competency of [its] staff." Plaintiff specifically

faulted defendant for failing to ensure its staff followed its "'Patient Rights'

policy." In the third count, entitled "Intentional and Negligent Infliction of

Emotional Distress," plaintiff asserted defendant's employees had "acted in the

course and scope of their employ[ment]."

The case was assigned to "Track 2" for discovery purposes. The track-

assignment notice contained the following instruction: "if you believe that the

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track is inappropriate you must file a certification of good cause within [thirty]

days of the filing of your pleading."

Defendant filed an answer and included in its answer a demand for an

affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Defendant also filed a

certification of good cause to change the track assignment executed by defense

counsel. Defense counsel asserted the court had "incorrectly designated this

case as a Track II nonprofessional malpractice action" even though "[i]n her

[c]ase [i]nformation [s]tatement, [p]laintiff admitted the action is a

[p]rofessional [m]alpractice case." Defense counsel also contended the

allegations in the complaint clearly indicated plaintiff was alleging "professional

negligence on the part of physicians and nurses in the Emergency Department

for which an Affidavit of Merit would be required." In addition to the track

change, counsel asked the court to schedule a Ferreira conference. See Ferreira

v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). In response, plaintiff

filed a "certification of rejection to change the track assignment," arguing she

had "not claimed malpractice in her complaint" but instead had "clearly

demonstrated in her complaint that her Rights as a Patient, pursuant to [N.J.S.A.]

30:4-24.2(d)(3) were bluntly violated by hospital staff."

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Defendant moved to change the track assignment. In support of the

motion, defense counsel certified that "[d]espite the allegations in the complaint

referencing alleged improper treatment in [d]efendant's emergency department

and [p]laintiff's case information statement designating this as a [p]rofessio nal

[m]alpractice case, the case was assigned to Track II instead of Track III."

Defendant's counsel further certified:

Princeton Healthcare System is a New Jersey nonprofit

corporation that operates Princeton Medical Center as

an acute hospital, licensed under N.J.S.A. 26:2H-2, and

is covered under the Affidavit of Merit Statute,

N.J.S.A. 2A:53A-26. Additionally, to the extent

[plaintiff] seeks to impose liability on Princeton

Healthcare System for the alleged improper conduct of

its staff in the emergency department, including

licensed physicians and registered nurses, those

healthcare professionals are also included within the

definition of a licensed professional for which an

Affidavit of Merit is required.

Regarding plaintiff's claim her rights were violated pursuant to N.J.S.A. 30:4-

24.2(d)(3) when she was placed in temporary restraints, defense counsel

contended that claim "necessarily requires a review of the medical records and

a determination as to whether the physician deviated from accepted standards of

care when he issued an order for temporary restraints. By definition, that is a

professional malpractice claim for which an Affidavit of Merit is required to be

served." In opposition, plaintiff certified she "strongly believe[d] that

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[defendant's] motion to change the track assignment [was] an unfair tactic

played by the defendant's attorney to throw pecuniary or non-pecuniary

obstacles in the plaintiff's case."

The motion judge granted defendant's motion to change the track

assignment from Track II to Track III in an order dated May 14, 2021. The

judge found "[p]laintiff's complaint sounds, in part, in professional negligence"

and "[t]he allegation of improperly restraining plaintiff in the ER Department

requires an analysis of deviation from the standard of care in terms of the order

issued to temporarily restrain plaintiff." The judge also scheduled a Ferreira

conference to take place on June 4, 2021.

Plaintiff filed a motion for reconsideration of the May 14, 2021 order,

arguing in her certification that the allegations in her complaint were tort claims

rather than professional-malpractice claims and that the motion to change the

track assignment was a "dirty tactic" by defendant.

At oral argument of her reconsideration motion, plaintiff again argued "the

lawsuit is not about the medical malpractice" but about how she was restrained

against her will by doctors and nurses in the hospital. In opposition, defendant

contended "it is a professional liability case" and that the Affidavit of Merit

Statute applies to personal injuries "[r]esulting from an alleged act of negligence

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by a licensed person in his [or her] profession or occupation," which applied to

plaintiff because she was claiming emotional injuries resulting from her

hospitalization. Defendant also argued "a jury cannot determine whether or not

the order [to temporarily restrain plaintiff at the hospital] was appropriate . . .

without expert testimony, because jur[ors] aren't qualified to determine whether

emergency circumstances were there and whether that order was justifiable."

The motion judge agreed, finding plaintiff had to produce an affidavit of merit

because "this all evolves out of a decision and a judgment made by a licensed

professional, and that is why the [c]ourt believed . . . that this is a . . . track three

case that falls under the guise of professional malpractice and therefor e triggers

the need for an affidavit of merit." The motion judge also found "nothing has

changed" in plaintiff's argument for reconsideration and that the interests of

justice did not warrant reconsideration. The judge denied the reconsideration

motion in a June 11, 2021 order and scheduled a Ferreira conference to take

place on July 2, 2021.

During the July 2, 2021 conference, the court granted plaintiff a sixty-day

extension to serve an affidavit of merit, with a new deadline of August 6, 2021.

On or about July 23, 2021, plaintiff filed a motion asking the court to appoint

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an expert to provide an affidavit of merit. On August 9, 2021, defendant moved

to dismiss the case for failure to produce an affidavit of merit.

A different judge, Judge Alberto Rivas, heard oral argument of those

motions. When plaintiff again reiterated her argument that this action was not

a malpractice case, the judge explained to plaintiff why the case requires an

affidavit of merit:

THE COURT: -- you had an interaction -- now, I know

you don't agree with the interaction, I know you're not

happy with the result, but you had an interaction with

medical people at Princeton Medical Center. And so

you're questioning and you're challenging in your

lawsuit the fact that they kept you even though you

asked --

MS. SHARIFI: Against my will.

THE COURT: -- to leave. You asked to leave, they

didn’t let you leave, according to you you were

restrained, you were kept. So you disagree with that

and that's why you're suing. You're saying they should

not have kept you and that you're entitled to damages.

MS. SHARIFI: Correct.

THE COURT: Exactly.

MS. SHARIFI: They illegally kept me, that was my

point.

....

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THE COURT: So the defense is, listen, she came to the

medical center, we exercised -- and I'm not saying

they're right or wrong, but this is what the case is at this

point -- the plaintiff came to the hospital, she was

observed, a decision was made to keep her in the

hospital for observation, for treatment, or what have

you.

So that's what makes it a medical malpractice

case, because they exercised their medical judgment,

you said they exercised their medical judgment in the

wrong way and that they shouldn’t have kept you and

that you're entitled to damages. That's what that lawsuit

is all about.

Now, the law in New Jersey is crystal clear . . . .

If there's a case where someone is questioning the

medical decisions or actions or judgments of healthcare

professionals, be it a nurse, be it a doctor, be it any of

those people, the law says you have to file, the plaintiff

has to file an affidavit of merit . . . to say what Princeton

Medical Center did was not medically appropriate and

they should be held liable.

Nonetheless, plaintiff again argued the case was not about malpractice. She

contended defendant had "imprisoned [her] willfully without [her] consent for

hours" and "tortured" her. She continued to assert "[t]his is not a medical

malpractice, I am not claiming that they misdiagnosed me or they caused me a

permanent injury, this malpractice does not apply in this case."

Agreeing with the judge's analysis of why this case is a professional-

malpractice case requiring an affidavit of merit, defense counsel contended, "the

entire issue is whether or not those orders [to administer plaintiff medication

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and to order temporary restraints] were appropriately given in the circumstances

of this case" and argued "that question necessarily requires an analysis of th e

standard of care applicable to the emergency room physician and registered

nurse under those circumstances."

Judge Rivas found plaintiff had to file an affidavit of merit because she

was "challenging the medical judgment of the nurse and the doctor and saying

they had no right to do what they did." The judge again extended the deadline

for plaintiff to file an affidavit of merit, with a new due date of September 10,

2021. The judge instructed plaintiff she had until September 10, 2021, to file

an affidavit of merit and that if the affidavit of merit was not filed by that date,

the court would dismiss the complaint without defendant having to file a new

motion.

After plaintiff failed to file an affidavit of merit by September 10, 2021,

Judge Rivas issued an order on September 13, 2021, dismissing the complaint

with prejudice pursuant to N.J.S.A. 2A:53A-27 and -29 due to plaintiff's failure

to serve an affidavit of merit.

Plaintiff filed a notice of appeal stating she was appealing the September

13, 2021 order. On appeal, plaintiff argues the first motion judge erred in

granting defendant's motion to change the track assignment, and Judge Rivas

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erred in applying the Affidavit of Merit Statute to her "false imprisonment"

claim and dismissing the complaint in its entirety based on her failure to produce

an affidavit of merit. Unpersuaded, we affirm.

II.

We review de novo motions to dismiss based on failures to comply with

the Affidavit of Merit Statute, Castello v. Wohler, 446 N.J. Super. 1, 14 (App.

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

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

affidavit of merit requirement," Cowley v. Virtua Health Sys., 242 N.J. 1, 14-15

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

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

considered an element of the claim." Meehan v. Antonellis, 226 N.J. 216, 228

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

dismissal of the complaint with prejudice." Ibid.; see also Cowley, 242 N.J. at

16 (noting our Supreme Court has construed the affidavit of merit statute "to

require dismissal with prejudice for noncompliance"). Accordingly, we limit

our inquiry to "examining the legal sufficiency of the facts alleged on the face

of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.

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739, 746 (1989); see also Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,

Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019).

The Affidavit of Merit Statute requires

[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

complaint, fell outside acceptable professional or

occupational standards or treatment practices.

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

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

professionals early in the litigation process." Meehan, 226 N.J. at 228. See also

Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc., 466 N.J. Super. 126,

131 (App. Div. 2021) (intent of Legislature was to ensure parties did not waste

time or resources on unnecessary litigation, including discovery), aff'd, 250 N.J.

368 (2022). Thus, pursuant to the statute, "a plaintiff must provide 'each

defendant' with an affidavit that indicates the plaintiff's claim has merit." Fink

v. Thompson, 167 N.J. 551, 559-60 (2001) (quoting N.J.S.A. 2A:53A-27).

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

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

2A:53A-26(f), (i), (j). Plaintiff cannot dispute that the hospital and its doctors

and nurses fall within that definition.

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

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

professional negligence, implicating the standards of care within that

profession." McCormick v. State, 446 N.J. Super. 603, 613-14 (App. Div.

2016); see also id. at 614 (noting affidavit of merit not required in cases

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

someone over).

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

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

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

Gardner, 173 N.J. 328, 340 (2002). Instead of focusing on a label, "courts

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

deviation from the professional standard of care applicable to that specific

profession." Ibid. If that proof is necessary, "an affidavit of merit is required

for that claim, unless some exception applies." Ibid.

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Our courts have acknowledged a "common knowledge exception" to the

Affidavit of Merit Statute requirements. Cowley, 242 N.J. at 16. "In the

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

id. at 17, a plaintiff does not have to submit an affidavit of merit "where the

carelessness of the defendant is readily apparent to anyone of average

intelligence," Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). "In those

exceptional circumstances," Cowley, 242 N.J. at 17, the "jurors' common

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

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

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

Med. Ctr., 160 N.J. 454, 469 (1999). The common knowledge exception is

"properly invoked only when 'jurors are competent to assess simple negligence

occurring . . . without expert testimony to establish the standard of ordinary

care.'" Cowley, 242 N.J. at 19-20 (quoting Nowacki v. Cmty. Med. Ctr., 279

N.J. Super. 276, 292 (App. Div. 1995)). Examples of circumstances falling

under the common knowledge exception include a dentist extracting the wrong

tooth, Hubbard v. Reed, 168 N.J. 387, 396-97 (2001), and a doctor reading

specimen numbers as actual test results, Palanque v. Lambert-Woolley, 168 N.J.

398, 407-08 (2001).

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Plaintiff's complaint makes clear this case falls within the Affidavit of

Merit Statute. The factual allegations she recites in her complaint paint a picture

of a woman in extreme mental distress and "breakdown," whose blood oxygen

level had dropped and who had had a "massive panic attack," had lost

consciousness, could not stop coughing or crying, was unable to speak, and was

taken by a rescue squad to the hospital in an emergency. She faults the hospital

and its staff for administering medicine to her without her consent and for

restraining her when she attempted to leave. To prove her case, plaintiff

unquestionably would have to show defendant and its staff deviated from a

professional standard of care in how they treated her under those circumstances.

See, e.g., Ziemba v. Riverview Med. Ctr., 275 N.J. Super. 293, 302 (App. Div.

1994) ("The pivotal issue of whether defendants . . . took reasonable steps to

assess, take custody of, [or] detain . . . plaintiff for the purpose of mental health

assessment or treatment cannot be decided without competent expert testimony

establishing an appropriate standard of care and that such standard was breached

by defendants."). Plaintiff, therefore, is bound by the statutory requirement of

submitting an affidavit of merit, a requirement she failed to meet despite the

multiple extensions and opportunities provided to her.

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The common-knowledge exception does not apply here. The questions

raised by the facts of this case – whether and how a hospital should treat a

"mentally extremely distressed" patient who was refusing treatment and

threatening to leave; how a hospital should supervise its staff in and train its

staff for those emergent circumstances; whether defendant violated plaintiff's

rights when it attempted to treat her and prevented her from leaving the hospital

when she was in an extreme mental state – convince us this case is about more

than simple, ordinary negligence and involves matters falling outside jurors'

common knowledge and experience. See Cowley, 242 N.J. at 21-22 (finding

common-knowledge exception did not apply to a case concerning what a

hospital staff should have done when a patient refused treatment).

Accordingly, we conclude plaintiff had an obligation to provide an

affidavit of merit and Judge Rivas properly dismissed the case when plaintiff

failed to provide it.

Plaintiff in her brief argued about the order granting defendant's motion

for a track-assignment change. We review "only the judgment or orders

designated in the notice of appeal." 1266 Apartment Corp. v. New Horizon Deli,

Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); see also Kornbleuth v.

Westover, 241 N.J. 289, 298-99 (2020) (same). An appellant who does not

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designate an order in a notice of appeal as being the subject of the appeal "has

no right to our consideration of th[at] issue." 1266 Apartment Corp., 368 N.J.

Super. at 459. Even if we were to consider plaintiff's argument regarding the

track-assignment order, our affirmance of the dismissal order renders it moot.

Affirmed.

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