Rosetta Hargett, Etc. v. Hamilton Park Opco LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: December 11, 2023
• Docket: A-2036-22
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2036-22

ROSETTA HARGETT, Administratrix ad Prosequendum of the ESTATE OF MARTHA INGRAM, Deceased,

Plaintiff-Appellant,

v.

HAMILTON PARK OPCO, LLC, APPROVED FOR PUBLICATION d/b/a ALARIS HEALTH AT December 11, 2023 HAMILTON PARK, HPO, LLC, and ALARIS HEALTH, LLC, APPELLATE DIVISION

Defendants-Respondents,

and

JERSEY CITY MEDICAL CENTER, INC., d/b/a JERSEY CITY MEDICAL CENTER, and RWJ BARNABAS HEALTH, INC.,

Defendants. _______________________________

Argued November 13, 2023 – Decided December 11, 2023

Before Judges Sabatino, Mawla and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1587-21. Matthew E. Gallagher (Swartz Culleton PC) argued the cause for appellant (Matthew E. Gallagher and Christopher J. Culleton (Swartz Culleton PC), attorneys; Matthew E. Gallagher and Christopher J. Culleton, on the brief).

Beth Ann Hardy argued the cause for respondents (Farkas & Donohue, LLC, attorneys; David Christoph Donohue, of counsel; Beth Ann Hardy, on the brief).

The opinion of the court was delivered by

VINCI, J.A.D. (temporarily assigned).

In this medical malpractice action, appellant Rosetta Hargett,

Administratrix Ad Prosequendum for the Estate of Martha Ingram ("Ingram"),

appeals from the trial court's order dismissing her complaint with prejudice f or

failure to provide an appropriate affidavit of merit ("AOM") pursuant to

N.J.S.A. 2A:53A-26 to -29, and denying her motion for reconsideration. Based

on our review of the record and applicable legal principles, we affirm because

the AOM tendered by appellant alleging collective negligence by multiple

unidentifiable nurses was inadequate.

Ingram was a resident at the Alaris Health at Hamilton Park nursing

facility operated by Hamilton Park OPOC, LLC, and Alaris Health, LLC

("Alaris Health"), for approximately one month. While at Alaris Health, Ingram

developed pressure-related skin breakdown and pressure wounds. She was

transferred to Jersey City Medical Center where she continued to develop

A-2036-22 2 pressure-related skin breakdown and pressure wounds. Ingram died

approximately one year after her transfer from Alaris Health.

Appellant filed a medical malpractice complaint against Alaris Health,

Jersey City Medical Center, and RWJ Barnabas Health alleging the injuries

Ingram sustained at Alaris Health and Jersey City Medical Center caused or

contributed to her physical decline and death. 1 The complaint did not name any

individual medical professionals, including nurses, as defendants.

Appellant alleged Alaris Health had an obligation to establish policies and

procedures for the recognition and treatment of medical conditions to ensure

timely and appropriate care for its residents. She also alleged Alaris Health had

an obligation to employ competent, qualified staff, and caused staffing levels to

be set at such a level that personnel could not reasonably tend to the needs of its

residents. Appellant further alleged Alaris Health failed to provide the resources

necessary to meet the needs of residents, created recklessly high resident-to-

nurse ratios, and disregarded the minimum time required to perform essential

functions and treatments. She asserted Ingram's injuries were caused by the

negligence and carelessness of Alaris Health and its nursing and administrative

staff who were acting within the course and scope of their employment.

1 Appellant settled her claims against Jersey City Medical Center and RWJ Barnabas Health. Those entities are not participating in this appeal.

A-2036-22 3 Appellant served a single AOM in support of all claims against Alaris

Health, Jersey City Medical Center, and the nursing and nursing administrative

staffs at both facilities. The AOM was prepared by Paula Kotz, RN, B-C,

CWOCN, CLNC, CFNC, CFCS, who opined:

based upon a review of [the medical] records [of Ingram] and other circumstances as [she] understand[s] them to be, . . . there exists a reasonable probability that the care, skill, or knowledge exercised in the treatment provided by Alaris [Health] . . . and Jersey City Medical Center, and members of their nursing and nursing administrative staff, fell outside acceptable professional standards and was the cause of harm to . . . Ingram.

The court conducted two Ferreira conferences.2 Alaris Health objected to

the AOM because Kotz was not qualified to opine regarding direct claims of

administrative negligence against Alaris Health and her AOM was a blanket

statement that failed to identify any individually negligent persons or acts. 3

Appellant declined the opportunity to serve a supplemental AOM. Appellant

did not seek to conduct any pre-AOM discovery to identify the allegedly

negligent nurses.

2 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (requiring a court conference to address AOM compliance issues). 3 On appeal, appellant abandoned her direct administrative claim against Alaris Health. The only remaining claim against Alaris Health is for vicarious liability based on the alleged professional negligence of the nursing staff at Ala ris Health.

A-2036-22 4 Alaris Health moved to dismiss for failure to provide an appropriate

AOM. The trial court granted the motion. Appellant moved for reconsideration,

which was denied. The court dismissed appellant's direct claim of negligence

against Alaris Health, finding Kotz was not qualified to render an opinion as to

an administrative negligence claim against a licensed health care facility.

Appellant does not challenge that aspect of the court's ruling on appeal. The

court also found the AOM was deficient because it failed to "provide specific

notification as to a specific employee as to a specific claim of negligence" and

failed to provide "notice as to who may have violated" the applicable standard

of care.

This appeal followed. Appellant contends the trial court erred by

dismissing her vicarious liability claim against Alaris Health because she

pleaded a valid vicarious liability claim based on the collective failure of Alaris

Health's nursing staff to provide proper wound preventative care. She argues

there is no requirement that an AOM identify individual employees for whom

an employer may be held vicariously liable if the employees are not named as

defendants. Appellant argues she was not required to name individual nurses as

defendants or to serve an AOM that identified individual nurses because:

pressure injury cases of this type are not premised upon isolated, one-time acts of negligence committed by a single staff member causing immediate harm; rather, they implicate ongoing failures of the nursing staff as a

A-2036-22 5 whole in failing to timely and consistently execute wound prevention interventions such as offloading pressure from bony prominences.

Alaris Health concedes Kotz is qualified to prepare an AOM in a nursing

malpractice action but maintains her AOM is deficient because it refers

generally to the nursing staff of two separate facilities and does not identify any

individual nurses for whom Alaris Health could be held vicariously liable.

We review an order granting a motion to dismiss for failure to state a claim

pursuant to Rule 4:6-2(e) de novo. Baskin v. P.C. Richard & Son, LLC, 246

N.J. 157, 171 (2021). We review a trial court's decision on a motion for

rehearing or reconsideration under Rule 4:49-2 for an abuse of discretion.

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

The submission of an appropriate AOM is an element of a professional

malpractice claim. Meehan v. Antonellis, 226 N.J. 216, 228 (2016). 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.

Pursuant to N.J.S.A. 2A:53A-27, in any action for damages resulting from

an alleged act of malpractice or negligence by a licensed person as defined by

the statute, the plaintiff must:

A-2036-22 6 within [sixty] 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.

The purpose of the 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 (quoting Hubbard

v. Reed, 168 N.J. 387, 395 (2001)). Pursuant to the statute, a plaintiff must

provide a defendant with "an affidavit that indicates the plaintiff's claim has

merit." Fink v. Thompson, 167 N.J. 551, 559-60 (2001).

These principles can extend to certain vicarious liability claims. An AOM

is required "when the plaintiff's claim of vicarious liability hinges upon

allegations of deviation from professional standards of care by licensed

individuals who worked for the named defendant." Haviland v. Lourdes Med.

Ctr. of Burlington Cnty., Inc., 250 N.J. 368, 381 (2022) (quoting McCormick v.

State, 446 N.J. Super. 603, 615 (App. Div. 2016)). Registered professional

nurses fall within the definition of "licensed person" under the AOM statute.

N.J.S.A. 2A:53A-26(i). Therefore, a plaintiff is required to serve an AOM to

support a claim of vicarious liability based on the alleged professional

negligence of a registered nurse.

A-2036-22 7 In medical malpractice actions, the person executing the affidavit must

meet the same requirements that would be required of an expert at trial.

Haviland, 250 N.J. at 377-78. The AOM "must explain '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 occupatio nal

standards or treatment practices.'" Mortg. Grader, Inc. v. Ward & Olivo, L.L.P.,

438 N.J. Super. 202, 213 (App. Div. 2014) (quoting N.J.S.A. 2A:53A-27).

The parties agree Kotz is not qualified to execute an AOM in support of a

direct administrative negligence claim against Alaris Health. The parties also

agree Kotz is qualified to execute an AOM with respect to a nursing malpractice

action. The question presented is whether Kotz's AOM is sufficient to support

appellant's vicarious liability claim against Alaris Health in this case. We

conclude it is not.

The AOM statute requires that a plaintiff "provide each defendant with an

affidavit . . . that there exists a reasonable probability that the care . . . exercised

or exhibited in the treatment . . . fell outside acceptable . . . treatment practices.”

N.J.S.A. 2A:53A-27. Generally, an AOM should identify the licensed person

who allegedly deviated from the acceptable standard of care. Medeiros v.

O'Donnell & Naccarto, Inc., 347 N.J. Super. 536, 542 (App. Div. 2002). That is

not to say an AOM must always name the licensed person who is the subject of

A-2036-22 8 a vicarious liability claim. A number of decisions considered and accepted an

AOM that did not identify the licensed person by name. In each case, however,

it was possible to identify by the description within the AOM the licensed person

or entity alleged to have deviated from the applicable standard of care. See, e.g.,

ibid. (AOM referred to engineers and there was only one engineering firm);

Fink, 167 N.J. at 551 (doctor who discontinued certain medication was

identifiable); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 358 (2001)

(unnamed radiologist was identifiable).

Here, it is not possible to identify any Alaris Health nurses who Kotz

asserts were negligent because the AOM refers generally to the entire Alaris

Health nursing staff over an extended period and indiscriminately combines the

nursing staffs of two separate facilities. Appellant did not satisfy her obligation

as to Alaris Health by serving an AOM that opines collectively as to the care

provided by its nurses and the nurses at Jersey City Medical Center. Appellant

was required to "provide each defendant" with an appropriate AOM and failed

to do so.

In fact, by referring ambiguously to all of the nurses at both facilities, the

AOM leaves open the possibility that Kotz was not able to offer an opinion as

to Alaris Health's nurses standing alone. At a minimum, the AOM statute

entitles a defendant facing a vicarious liability claim to an AOM limited to

A-2036-22 9 alleged deviations by its own licensed employees. Alaris Health was entitled to

an AOM that offered a clear opinion that its own nurses deviated from the

applicable standard of care. By serving one AOM that included all of the nurses

at Alaris Health and Jersey City Medical Center, appellant deprived Alaris

Health of its right to an appropriate AOM and effectively thwarted the purpose

of the AOM statute to weed out frivolous lawsuits.

Moreover, appellant is unable to identify any individual nurses who were

negligent because the complaint is based fundamentally on the alleged

administrative negligence of Alaris Health, not vicarious liability. Appellant

alleges in the complaint that Alaris Health failed to establish appropriate policies

and procedures; employ competent, qualified staff; and provide necessary

resources, resulting in recklessly high resident-to-nurse ratios. The complaint

further alleges "pressure injury cases of this type are not premised upon

isolated[] one-time acts of negligence committed by a single staff member . . .

rather, they implicate ongoing failures of the nursing staff as a whole . . . ."

Appellant's administrative negligence claim against Alaris Health was

dismissed for failure to serve an appropriate AOM, and appellant ostensibly

abandoned that claim on appeal. Appellant's purported vicarious liability claim,

however, is essentially the same administrative negligence claim recast.

Appellant is effectively seeking to hold Alaris Health liable for its own alleged

A-2036-22 10 negligence by asserting Alaris Health is vicariously liable for the acts of its

employees. However, appellant concedes her claim is based not on the actions

of any single, identifiable nurse, but on the "nursing staff as a whole."

Alleging Alaris Health is liable for its "nursing staff as a whole" is

indistinguishable from alleging Alaris Health is liable for administrative

negligence, including failing to maintain an appropriate nurse-to-patient ratio.

Appellant is simply restating her previously dismissed and abandoned

administrative negligence claim as one for vicarious liability. She cannot

identify individual nurses who were negligent because her claim is not truly

based on the negligence of individual nurses. Her claim is based instead on the

alleged administrative negligence of Alaris Health, which resulted in the

systemic failure to provide adequate care, including nursing care. The nurse

affiant selected by appellant is not qualified to provide an AOM in support of

such an administrative claim against a licensed healthcare facility.

The trial court determined correctly that appellant failed to serve an

appropriate AOM and properly dismissed her complaint against Alaris Health

with prejudice. The court did not abuse its discretion by denying appellant's

motion for reconsideration.

A-2036-22 11 To the extent we have not addressed any remaining arguments, it is

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

A-2036-22 12