New Jersey Appellate Division finds that a Licensed Practical Nurse is not covered by the Affidavit of Merit Statute
On November 9, 2022, the New Jersey Appellate Division addressed an issue of first impression: “is a licensed practical nurse a ‘licensed person’ as defined in and covered by the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.” Gilligan, et al. v. Junod, L.P.N., et al., A-1907-21 (App. Div. 2022).
On August 2, 2018, plaintiff, Guy Gilligan’s wife, Il Son Gilligan, underwent colon surgery performed by Dr. Keith Meslin. Id. at 3. Two days later, she was discharged from the hospital. Ibid.
Then on the morning of August 6, 2018, the plaintiff called Dr. Meslin’s office and spoke with a licensed practical nurse, Susan Junod. Ibid. Mr. Gilligan told Ms. Junod that his wife was in pain and unable to eat. Ibid. He was advised by Ms. Junod that his wife was “likely experiencing post-operative gas and that she should continue to take her medications, try to eat, drink liquids and walk around.” Ibid. Mr. Gilligan called again a couple of hours later to advise that the medications had sedated his wife. Ibid. Ms. Junod advised that she might be overmedicated and that she should cut back on the medications, eat, drink, and get up and walk around. Ibid.
Later that same day, Mr. Gilligan called and left numerous messages asking for a call back. He later received a callback that day and was told by Ms. Junod that his wife should take Maalox or Pepto Bismol and again eat, drink, and get up and walk around. Ibid.
Plaintiff then, the next morning, found his wife unresponsive. Ibid. She was taken to a hospital and pronounced dead. Ibid.
In July 2020, the plaintiff filed a medical-malpractice action. Id. at 4. Following limited discovery, a Ferreira conference was held in September 2021 to identify any issues concerning an Affidavit of Merit. Ibid. Ms. Junod took the position that the plaintiff’s failure to provide an Affidavit of Merit was fatal to the plaintiff’s action and sought dismissal of the complaint. Ibid. The plaintiff cross-moved for a declaration that he did not need an Affidavit of Merit. Id. at 5.
Following oral argument, the trial court issued two orders on January 5, 2022. Ibid. The first order granted the plaintiff’s motion for a declaration, and the second denied the defendant’s motion to dismiss. Ibid. Defendant thereafter filed an interlocutory appeal. Ibid.
In addressing the issue of whether a licensed practical nurse is a “licensed person” covered by the Affidavit of Merit statute, the Appellate Division first provided a brief legislative history regarding the statute. Id. at 6. The court noted that “[t]he AOM statute was enacted in 1995 as part of a tort reform package.” Id. at 6 (citing Burns v. Belafsky, 166 N.J. 466, 469-70 (2001)). Pursuant to the statute, a plaintiff alleging malpractice or negligence by a “licensed person,” must first “file an ‘affidavit of an appropriate licensed person’ who can attest that there is a ‘reasonable probability’ that defendant’s conduct ‘fell outside acceptable professional or occupational standards or treatment practices.” N.J.S.A. 2A:53A-27.
Section 26 of the Affidavit of Merit statute identifies sixteen (16) “licensed persons” and a healthcare facility as covered. N.J.S.A. 2A:53A-26. Of those sixteen (16) “licensed persons” is a “registered professional nurse pursuant to P.L. 1947, c.262 (C.45:11-23 et seq.).” Ibid.
Defendant argued that as the Affidavit of Merit statute referenced the nursing licensure statute, which defines both “a registered professional nurse,” and “a licensed practical nurse,” that the Legislature intended to include a licensed practical nurse within the list of specified licensed professions in the Affidavit of Merit statute. Id. at 7.
The Appellate Division, however, rejected this interpretation, noting that the Affidavit of Merit statute “expressly uses the term “ registered professional nurse” and that “the reference to the Nursing Statute plainly does not include “a licensed practical nurse.” Ibid. (citing N.J.S.A. 2A:53A-26(i)).
The court further noted that a “plain reading of the AOM statute in conjunction with the Nursing Statute establishes several facts. First, the Legislature expressly identified ‘a registered professional nurse’ as a ‘licensed person’ covered by the AOM statute but did not include licensed practical nurses in the list of those professions covered by the statute. Second, the Legislature was clearly aware of the distinct and separate definitions it had given for ‘a registered professional nurse,’ as compared to ‘a licensed practical nurse.’” Id. at 8.
Consequently, the Appellate Division affirmed the decision of the trial court. The court further noted that “although plaintiff can pursue his claims without submitting an AOM, he still must demonstrate that Junod was professionally negligent.” Id. at 13.
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