LEGAL ROUNDUP – New Jersey

NJ Supreme Court Holds, Affiant of Merit Need Not Review Medical Records of Injured Party and Need Not Specifically Identify an Agent for Whom Named Defendant Is to Be Held Vicariously Liable
Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., 258 N.J. 110 (2024)

The plaintiff filed a medical malpractice action against multiple defendants and filed an Affidavit of Merit (AOM) prepared by Dr. J. Fallon. Dr. Fallon’s AOM indicated that he reviewed the complaint (but not that he reviewed the subject medical records). The doctor opined that the care, skill or knowledge exercised by the physician defendant, identified in the affidavit as “one of the John and Jane Doe defendants,” deviated from the acceptable professional standards or treatment practices.

Without having held a Ferreira conference, and on a motion to dismiss filed by the defendants, the trial court dismissed the plaintiff’s complaint with prejudice for failure to submit a sufficient AOM. The Appellate Division affirmed the trial court’s decision, agreeing that the AOM was insufficient because it did not allege negligence against a named defendant.

On the plaintiff’s petition for certification, the New Jersey Supreme Court held that the AOM statute does not make any reference to the review of medical records, thereby concluding that affiants are not required to state that they reviewed the medical records of the injured party. The court further held that the AOM statute is silent as to any requirement that the AOM specifically identify a defendant by name. The court reasoned that because the AOM identified the defendant doctor as one of the John and Jane Doe defendants, it was sufficient for purposes of the statute’s requirement that the AOM name the specific defendant alleged to have committed malpractice.

Finally, the Supreme Court stressed the importance of holding a timely and effective Ferreira conference, finding that the trial court’s failure to hold such conference gave rise to issues that could have been resolved. 

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