Laxavier Hood, Etc. v. Kindred Hospital New Jersey Wayne

• Court: New Jersey Superior Court Appellate Division
• Decided: November 6, 2025
• Docket: A-0603-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0603-24

LAXAVIER HOOD, individually, and on behalf of THE ESTATE OF ZELA SCOTT,

Plaintiff-Appellant,

v.

KINDRED HOSPITAL NEW JERSEY WAYNE,

Defendant-Respondent. ___________________________

Submitted October 14, 2025 – Decided November 6, 2025

Before Judges Walcott-Henderson and Bergman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1873-22.

Epstein Ostrove, LLC, attorneys for appellant (Lance D. Brown, of counsel and the briefs; Robert C. Sanfilippo, on the briefs).

Farkas and Donohue, LLC, attorneys for respondent (David C. Donohue, of counsel; Robert G. Veech, III, on the brief). PER CURIAM

In this medical malpractice action, plaintiff LaXavier Hood, individually

and on behalf of the Estate of Zela Scott ("decedent"), appeals from two orders

of the Law Division: an August 26, 2024 order granting Kindred Hospital New

Jersey Wayne's ("Kindred") motion for reconsideration and dismissing

plaintiff's complaint with prejudice for failure to provide a compliant Affidavit

of Merit ("AOM") under N.J.S.A. 2A:53A-27 to -29; and an October 11, 2024

order denying plaintiff's motion for reconsideration of that dismissal. The

central question is whether plaintiff's AOM was sufficient under the statute.

Plaintiff argues the court erred in dismissing her complaint based on a

misreading and misapplication of Hargett v. Hamilton Park OPCO, LLC., 477

N.J. Super. 390 (App. Div. 2023). We agree and accordingly reverse.

I.

From February 6 through August 4, 2020, decedent received various

treatments while a patient at Kindred. Her care was mostly provided by licensed

nursing staff and non-licensed personnel, such as Certified Nursing Assistants

("CNAs"). Despite these treatments, her condition deteriorated and she

developed severe multiple-stage-4 decubitus ulcers. Her family was notified

about the changes in her medical condition, and she was admitted to the

A-0603-24 2 emergency room in critical condition and transferred to St. Joseph's Hospital.

Three days later, on August 7, 2020, she died. The death certificate listed the

cause of death as acute hypoxic respiratory failure, septic shock, multidrug-

resistant pneumonia, and bacteremia, with a contributing medical history of

metastatic uterine cancer.

Plaintiff, decedent's daughter, filed a complaint against Kindred and John

Does 1 through 100, asserting claims of negligence, gross negligence, wrongful

death, punitive damages, and vicarious liability related to the care provided by

Kindred, including nurses and CNAs. Plaintiff alleged that defendant, both

directly and through its nursing staff and caregivers, failed to provide adequate

and consistent care, prevent the development and progression of pressure

injuries, and implement proper safety measures. Additionally, the complaint

further claimed that insufficient charting and documentation made it difficult to

identify which individuals provided or failed to provide appropriate care.

Defendant cross-claimed, asserting, inter alia, several affirmative defenses and

demanded the production of a compliant AOM within sixty-days.

Plaintiff submitted an AOM prepared by registered nurse Kenneth

McCawley on November 23, 2022. Defendant objected, arguing the AOM was

A-0603-24 3 noncompliant because it did not identify specific persons who deviated from the

standard of care and was therefore a "blanket AOM."

Plaintiff submitted a second AOM from Nurse McCawley, stating that

both Kindred and "its nursing staff" deviated from accepted standards in the care

of decedent. Defendant again moved for dismissal of plaintiff's complaint for

failure to provide a compliant AOM, arguing:

[w]ithout question, if a "nurse" was named as a defendant, then an AOM identifying that specific "nurse" would have to be served. Where the claim is asserted against an employer entity for alleged vicarious liability associated with alleged negligent nursing care, then the requirement cannot be any less. Kindred is entitled to an AOM that informs it of the nature of the claims and identifies the employees that are asserted to have been negligent. It would be improper to construe the AOM otherwise.

On April 27, 2023, the court denied defendant's motion. The court found

plaintiff had substantially complied with the AOM statute and noted the

challenges of identifying each caregiver in these types of cases and the equities

involved given the cumulative nature of the care at issue. The court discussed

the requirements needed to be compliant with the AOM statute, 1 and found the

1 To show substantial compliance, a plaintiff must demonstrate: (1) no prejudice to the defendant, (2) steps taken toward compliance, (3) general adherence to the statute’s purpose, (4) reasonable notice of the claim, and (5) a

A-0603-24 4 revised AOM "clearly opines that there exists a reasonable probability that the

defendant in question . . . deviated in the care and treatment of [decedent] from

acceptable nursing practice."

On December 11, 2023, we issued an opinion in Hargett, 477 N.J. Super.

at 390. We held that a blanket AOM that fails to specify particular individuals

or their actions when multiple potentially negligent parties exist is insufficient

to satisfy N.J.S.A. 2A:53A-27. Id. at 395-98. Approximately one year after the

court entered its original April 27, 2023 order and four months following this

court's decision in Hargett, defendant moved for reconsideration of the court's

denial of its prior motion to dismiss plaintiff's complaint, arguing that under

Hargett, plaintiff's AOM proved insufficient.

The court granted defendant's motion for reconsideration, over plaintiff's

objection, and dismissed plaintiff's complaint with prejudice. The court

reasoned that plaintiff's complaint:

does not address the issue of administrative negligence, which is now the very essence of this case. . . . As in Hargett, it now clearly appears to the [c]ourt that plaintiffs, in reality are not alleging a nursing malpractice action but rather an administrative

reasonable explanation for noncompliance. See Galik v. Clara Maass Medical Center, 167 N.J. 341, 353-54 (2001); see also Ferreira v. Rancocas Orthopaedic Associates, 178 N.J. 144, 146-47 (2003). A-0603-24 5 negligence case under the guise of a vicarious liability claim.

The court concluded "specifically as it relates to this issue of the entire nursing

staff as a whole, the [c]ourt has no choice but to grant the relief now requested."

Following the court's oral decision, plaintiff sought leave to file a motion

for reconsideration, stating "there is a decision that came down very recently by

the Supreme Court . . . in the interim between the time that we argued it, and the

time that this was decided, I think this might be appropriate," referring to

Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., 258 N.J. 110,

113 (2024).2

In Moschella, our Supreme Court held N.J.S.A. 2A:53A-27 does not

require an affiant to state that he or she reviewed the medical records, nor does

it require the plaintiff to name a specific defendant in the affidavit. Id. at 114-

15. The Court emphasized that referencing unnamed "John or Jane Doe"

employees is sufficient when individual actors cannot be identified, and reversed

the dismissal of the plaintiff's complaint. Id. at 128. The Moschella Court held

2 The court acknowledged that plaintiff was seeking reconsideration of a motion for reconsideration and allowed plaintiff the opportunity to address the issue in light of Moschella. A-0603-24 6 that such substantial compliance fulfills the statute's goal to screen out frivolous

cases while preserving meritorious claims. Id. at 121.

On October 11, 2024, in its final order, the court nevertheless denied

plaintiff's motion for reconsideration, finding that Moschella did not establish

any new obligation or requirement but merely reiterated the prohibition against

blanket AOMs.

This appeal followed.

II.

"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which

relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,

LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 108 (2019)). In considering

a Rule 4:6-2(e) motion, "[a] reviewing court must examine 'the legal sufficiency

of the facts alleged on the face of the complaint,' giving the plaintiffs the benefit

of 'every reasonable inference of fact.'" Ibid. (quoting Dimitrakopoulos, 237

N.J. at 108). The test for determining the adequacy of a pleading is "whether a

cause of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp

Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive

Co., 109 N.J. 189, 192 (1988)).

A-0603-24 7 The submission of an appropriate AOM is an element of the claim.

Meehan v. Antonellis, 226 N.J. 216, 228 (2016). Therefore, failure to provide

an AOM is "deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29.

"The failure to deliver a proper affidavit within the statutory time period requires

a dismissal of the complaint with prejudice." Ferreira, 178 N.J. at 146 (citing

Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998)).

This court reviews a trial judge's decision on whether to grant or deny a

motion for rehearing or reconsideration under Rule 4:49-2, under an abuse of

discretion standard. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)

(citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)). An abuse of

discretion occurs when a court's decision lacks a logical justification, strays

from established rules or standards for no clear reason, or is based on an

improper ground. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).

Before us, plaintiff's central argument is that the motion court erred by

mistakenly applying Hargett to the facts of her case and interpreting Hargett as

a "bright-line" rule that if an AOM refers to a licensed healthcare facility's

nursing staff, that automatically equates to an administrative negligence claim

against the facility, even if not pled. Specifically, plaintiff maintains that her

complaint "does not fall within the scope of Hargett" for several reasons: (1)

A-0603-24 8 Hargett was decided after the court had already determined Nurse McCawley's

March 2023 AOM was compliant with the AOM statute; (2) nothing in Hargett

suggests defendant could wait until a year after the court had deemed an AOM

sufficient to refile its motion challenging an earlier determination ; and (3)

Hargett is inapplicable and factually distinguishable from the within matter as

plaintiff's claims are not grounded in administrative negligence.3 Additionally,

plaintiff contends defendant should be equitably estopped from seeking

dismissal because it engaged in discovery and litigation for over a year after the

court initially deemed the AOM sufficient, inducing reasonable reliance on that

ruling. Plaintiff insists dismissal was improper as to claims against the CNAs,

because the AOM statute does not apply to vicarious liability claims based on

their alleged negligence, and those claims should have remained pending at least

through expert discovery.

Plaintiff further argues her AOM complied with N.J.S.A. 2A:53A-27

because, as in Moschella, the statute does not require the AOM to name specific

individuals or employees where the complaint only references a single facility

3 Plaintiff argues the allegations in Hargett reference "budgeting, marketing, [and] human resource management" as well as a failure to "provide resources necessary, including staff, to meet the needs of their residents." A-0603-24 9 and John Doe agents, and because the defect identified in Hargett is absent from

these facts in the instant case. We agree.

N.J.S.A. 2A:53A-27, the AOM statute, requires a plaintiff in a

professional negligence action to serve each defendant with an affidavit from

"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 expressly

applies to only those professionals listed as "licensed persons" under 2A:53A-

26. CNAs and other non-licensed staff are not included among the sixteen listed

professions.4

The dual purpose of the AOM statute is "to weed out frivolous lawsuits

early in the litigation while, at the same time, ensuring that plaintiffs with

meritorious claims will have their day in court." Ferreira, 178 N.J. at 150

4 A "licensed person" means any person who is licensed as: an accountant; an architect; an attorney admitted to practice law in the State; a dentist; an engineer; a physician in the practice of medicine or surgery; a podiatrist; a chiropractor; a registered professional nurse; a health care facility; a physical therapist; a land surveyor; a registered pharmacist; a veterinarian; an insurance producer; a certified midwife, a certified professional midwife, or a certified nurse midwife; and a licensed site remediation professional. N.J.S.A. 2A:53A-26.

A-0603-24 10 (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). To achieve that balance,

plaintiffs bringing negligence suits against designated professionals are required

to produce an AOM from an expert attesting to the merits of the claim. The

court has "construed the statute to require dismissal with prejudice for

noncompliance." Moschella, 258 N.J. 110, 112-14 (quoting A.T. v. Cohen, 231

N.J. 337, 346 (2017)).

"The [AOM statute] is the exclusive authority governing the document to

be filed." Cornblatt, 153 N.J. at 238. Because the statute's aim is to identify

and eliminate unmeritorious claims against licensed professionals and "to permit

meritorious claims to proceed efficiently through the litigation process, " our

courts recognize the doctrines of substantial compliance and extraordinary

circumstances, which can "temper the draconian results of an inflexible

application of the statute when an AOM is insufficient." Meehan, 226 N.J. at

229 (quoting Ferreira, 178 N.J. at 151).

We have held that N.J.S.A. 2A:53A-27 does not require naming of every

defendant. Medeiros v. O'Donnell & Naccarato, Inc., 347 N.J. Super. 536, 541

(App. Div. 2002). In Medeiros, the plaintiff filed an AOM that did not name

any individual engineers responsible for a construction site accident, but rather

asserted deviation from the standard of care by "defendant architects and

A-0603-24 11 engineers." Id. at 539. We held that the AOM was compliant since the statute

does not require naming individuals, and courts will not add such requirements,

and only one engineering firm was involved, eliminating the potential for

ambiguity. Id. at 541-42.

Moreover, our Supreme Court's recent holding in Moschella confirms the

AOM statute was not intended to be construed to require every individual

defendant alleged to have been negligent to be named. See 258 N.J. at 110. In

that case, the plaintiff sued the medical center for wrongful death and provided

an AOM that did not name every provider but identified them by description and

referenced John/Jane Doe employees. Id. at 116. There, the defendants argued

in part, the AOM was insufficient because it failed to name individual

defendants in the action and did not state that the doctor who submitted the AOM

was a "similarly licensed physician." The motion court agreed and dismissed

plaintiff's complaint. The court reasoned that although the AOM was provided

by a similarly credentialed expert, it was insufficient because the AOM did not

indicate that any named defendant's care fell outside acceptable professional or

occupational standards through plaintiff's use of "John and Jane Doe"

designations in the complaint. We affirmed the court's dismissal of plaintiff's

A-0603-24 12 complaint, agreeing that the AOM was insufficient because it did not allege

negligence against a named defendant. However, our Supreme Court reversed.

The Court held that the AOM statute does not mandate that defendants be

identified by name where the complaint references "John Doe" employees. Id.

at 113. The Court emphasized that the statute itself provides the "exclusive

authority" for AOM content and cautioned against imposing extra-statutory

technical demands that would deny plaintiffs their day in court. Id. at 120-21.

The Court found the statute was satisfied when the affidavit gives reasonable

notice of the class of professionals whose conduct is challenged , particularly

when only one facility and its employees are involved. Id. at 127-28; see also

Medeiros, 347 N.J. Super. at 541-42. The Court further underscored the

importance of substantial compliance and warned that rigid application of the

statute can produce "draconian" results inconsistent with its remedial purpose.

Id. at 122 (citing Meehan, 226 N.J. at 229).

By contrast, in Hargett, which predated Moschella, we affirmed the

dismissal of plaintiff's complaint where the AOM was fatally ambiguous for two

key fact-intensive reasons: (1) the plaintiff's AOM referred very generally to

"the entire . . . nursing staff" of two different facilities over an "extended period,"

and did not distinguish between the workforces; and (2) the underlying

A-0603-24 13 complaint was primarily predicated on administrative negligence rather than

classic vicarious liability rooted in the alleged professional negligence of

particular nurses. Hargett, 477 N.J. Super. at 398-99. These outcome

determinative facts are not before us.

Here, plaintiff filed her complaint against Kindred, a single entity,

alleging acts and omissions of its staff, including both nurses and non-licensed

personnel, over the course of a defined admission period. Plaintiff's AOM

references "Kindred and its nursing staff," asserting the decedent's care fell

below acceptable standards. Unlike in Hargett, plaintiff's complaint and second

AOM submitted did not reference employees of numerous facilities, nor was the

complaint predicated on administrative negligence. Rather, plaintiff's complaint

was rooted in professional negligence and vicarious liability for failure to

prevent and treat her late-mother's ulcers among other alleged failures and

deficiencies in her nursing care. In this regard, plaintiff's complaint is factually

distinguishable from Hargett and more closely resembles Medeiros, where the

court accepted an AOM that referenced a group of professionals within a single

defendant entity without requiring identification of each individual defendant

by name. See Medeiros, 347 N.J. Super. at 542.

A-0603-24 14 We therefore reject defendant's contention Hargett established a brightline

rule or required every nurse who provided care to decedent to be identified by

name for the AOM to be deemed compliant. We remain unpersuaded that the

AOM statute or case law compels such a result. Simply put, this argument is

unsupported by the statute and our Supreme Court's holding in Moschella.

Further, Moschella cautioned against an overbroad naming of each individual

nurse, as that would run contrary to the remedial purpose of the statute. See 258

N.J. at 122.

Based on our de novo review, we conclude plaintiff's AOM is sufficient

and the complaint should not have been dismissed. Because we conclude the

court erred in dismissing plaintiff's complaint, we need not address the denial of

plaintiff's subsequent motion for reconsideration. Accordingly, we vacate the

dismissal, reinstate plaintiff's complaint, and remand to the court for further

proceedings. We do not retain jurisdiction.

Reversed and remanded.

A-0603-24 15