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January 2024

New Jersey Medical Malpractice Litigation Update

New Jersey’s Appellate Division of the Superior Court ("Appellate Division") expanded the protections of the affidavit of merit ("AOM") for medical entities in cases involving vicarious liability. In the matter of Hargett v. Hamilton Part OPCP, A-2036-22 (December 2023), the Appellate Division held that a plaintiff must provide an AOM citing with specificity the individuals and treatment which deviated from the standard of care to pursue a vicarious liability claim against a long-term care facility.

In this case, the plaintiff served an AOM authored by a registered nurse. The AOM utilized boilerplate language asserting that there was a “reasonable probability that the care, skill or knowledge exercised in the treatment provided by [the nursing home] and [the hospital], and members of their nursing and nursing administrative staff, fell outside acceptable standards…”  The AOM claimed that the facility was vicariously liable for the actions and/or inactions of the facility’s “nursing staff as a whole."

The Appellate Division affirmed the trial court’s dismissal finding that the AOM failed to identify specific individuals who violated of the standard of care. While there is case law in New Jersey stating that specific identification of a purported negligent actor is not required in all circumstances, particularly where the identity of the individual is known, the Hargett court distinguished this case on the basis that the AOM referred generally to the entire nursing staff over an extended period and indiscriminately combined the nursing staffs of two separate facilities.

This ruling will certainly test the plaintiff’s bar. For the industry as a whole, this ruling could lead to more aggressive pre-suit discovery requests in order to obtain the identity of medical providers and the scope of care provided. Attorneys can anticipate overbroad suits naming all medical providers and lengthy detailed AOMs. 

From a defense perspective, Gordon Rees Scully Mansukhani's Health Care team recommends carefully scrutinizing any AOM that may not align with the specific criteria set forth by the Appellate Division in Hargett. While the Hargett decision arose in the context of a long-term care facility, the additional commentary in the decision implies that the precedent extends to vicarious liability claims for any medical facility where the AOM alleges negligence arising from the conduct of nursing staff globally.

The GRSM team will continue to advise as new developments occur.  Please contact one of the authors or a member of GRSM's Health Care practice group to discuss the Hargett decision or its application to litigation in New Jersey.

Health Care

Melissa J. Brown
Kevin M. Buttery

Health Care
Professional Liability Defense