The Affidavit of Merit Statute was originally enacted in 1995. Over the ensuing twenty-five years, it has been the focus of numerous opinions from the New Jersey Supreme Court and the Appellate Division examining numerous facets of the statute. In the 2003 decision in Knorr v. Smeal, the Supreme Court observed that “[o]n repeated occasions, we have addressed the obligation of plaintiffs who file malpractice actions to conform to the procedural requirements of the Affidavit of Merit statute.” Some degree of frustration was subsequently expressed in the 2016 decision in Meehan v. Antonellis with the statement: “In this appeal, we return to the vexing and recurring issue of whether an affidavit of merit submitted by a plaintiff in an action alleging negligence by a licensed professional satisfies the requirements of the Affidavit of Merit statute.”

Most recently, in a November 9, 2022 decision in Gilligan v. Junod approved for publication, the Appellate Division again addressed “a question of first impression.” The straightforward issue in Gilligan was whether a licensed practical nurse (LPN) was a “licensed person” for whom an affidavit of merit was required in a malpractice lawsuit involving the LPN’s liability. The Appellate Division panel noted that “licensed person” was a defined term in the statute. As originally enacted, in addition to a healthcare facility, the statute set forth a list of nine professions that were within the term and to whom the affidavit requirement applied. Five more professions were added with an amendment in 2001, another in 2010, and still one more in 2019. None of these referred to or added licensed practical nurses.

In Gilligan, the court followed the same analysis that had been used in Saunders by Saunders v. Capital Health System, a case involving a licensed midwife. Notwithstanding that the tort reform effort leading to enactment of the original affidavit of merit statute had its foundations in the healthcare field, the court rejected the contention that the statutory requirement applied to any healthcare professional. It examined the specific language of the statutory text. The legislature had initially included only ten categories of licensed professionals. When it amended the statute six years later, it added five additional professions. The court reasoned that “[t]he absence of midwives as ‘licensed persons’ strongly suggests that the list contained in N.J.S.A. 2A:53A-26 is an exclusive one and implies that the omission of other licensed health providers ‘was intentional, not an oversight.’” It noted that the legislature could have used the common phrasing of “including but not limited to” if it had intended a more expansive approach. In response to the Saunders decision, the legislature passed an amendment in 2010 to specifically add “a certified midwife, certified professional midwife, or certified nurse midwife” but still without the broader “including but not limited to” language.

The court examined the Nursing Act which provides for separate licensure of both professional registered nurses (RNs) and licensed practical nurses (LPNs). Moreover, the Nursing Act states that scope of practice for an LPN is to work under the direction of “a registered nurse or licensed or otherwise authorized physician or dentist.”

Further support for the Appellate Division’s approach was found in the more recent Supreme Court decision of Haviland v. Lourdes Medical Ctr. of Burlington Cty. decided in April 2022. The court held that an affidavit of merit was not required when the conduct of an unlicensed person employed by a “licensed person” such as a healthcare facility that gave rise to the employer’s potential vicarious liability. The factual context involved the actions of a radiology technician, an unlicensed position, during an imaging study of the plaintiff’s shoulder. The court concluded that the statute “explicitly limits the term ‘licensed person’” to the listed professions.

Although the court in Gilligan held that no affidavit of merit was required, that is only a preliminary procedural requirement. Expert testimony as to the standard of care to be followed by an LPN would still be necessary to prevail at trial.

There is as yet no published decision involving the Affidavit of Merit Statute and a nurse practitioner. It remains to be seen how that category of increasingly utilized healthcare professional is assessed. The statute does not include any reference to nurse practitioners. There is no separate licensure for a nurse practitioner (also referred to as an advanced practice nurse) but there is an additional certification as well as educational and experience requirements. However, one cannot become a nurse practitioner without having first achieved the status of a registered professional nurse. Thus, at least an affidavit of merit from an RN will have to be submitted which will satisfy another section of the Affidavit of Merit Statute requiring “particular expertise in the general area or specialty involved in the action.”

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Photo of John Zen Jackson John Zen Jackson

Of Counsel, Healthcare and Litigation Departments

Mr. Jackson’s healthcare practice emphasizes litigated matters in judicial and administrative forums, including professional liability claims, licensure and credentialing issues with administrative agencies and health care entities, reimbursement and insurance fraud disputes. He is Certified by the…

Of Counsel, Healthcare and Litigation Departments

Mr. Jackson’s healthcare practice emphasizes litigated matters in judicial and administrative forums, including professional liability claims, licensure and credentialing issues with administrative agencies and health care entities, reimbursement and insurance fraud disputes. He is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and has extensive experience in trying jury cases to a verdict.

In addition to trying numerous individual medical liability cases for a variety of healthcare providers, Mr. Jackson was lead defense counsel for a group of New Jersey plastic surgeons sued in connection with the silicone gel breast implant litigation, and has been involved in a number of high-profile mass tort litigation programs for medical devices or healthcare products, including pedicle screws, diet drugs, and Rezulin.

Beyond trial advocacy, Mr. Jackson is an experienced appellate litigator. He served as defense counsel in the New Jersey Supreme Court cases limiting the liability of physicians for suspected exposure to the HIV-virus, and for alleged lack of informed consent regarding abortion procedures. Mr. Jackson has served as amicus counsel for the Medical Society of New Jersey, the American Medical Association, and the New Jersey Hospital Association in appellate matters before the New Jersey Supreme Court and Appellate Division. He has been involved in numerous reported opinions.

Mr. Jackson has handled a variety of commercial litigation issues as well as the defense of qui tam actions under the Federal False Claims Act and insurance coverage and insurance fraud cases. He has represented clients in professional licensure and hospital privilege disputes before state administrative bodies and hospital credentialing committees as well as judicial review through the New Jersey Supreme Court. He has additional experience as a hearing officer for hospital privilege disputes.

Mr. Jackson is the author of over 80 published articles in medical and legal publications on a broad range of healthcare, tort liability and trial technique topics. He has been a member of the Editorial Board of MDAdvisor, a peer-reviewed journal for the New Jersey medical community, since its inception in 2007.

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For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.