LINDA COWLEY, ET AL. VS. VIRTUA HEALTH SYSTEM, ET AL. (L-3616-16, CAMDEN COUNTY AND STATEWIDE) (A-4004-16T4)
In this appeal, plaintiffs challenge the dismissal of their medical malpractice complaint for failure to serve an affidavit of merit. The motion judge rejected plaintiffs' argument that the "common knowledge" exception relieved them of that obligation because the nurses who cared for one of the plaintiffs failed to take any action when a nasogastric (NG) tube that was properly inserted into her, in accordance with a physician's order, became dislodged and allegedly caused her to suffer serious injuries. The motion judge found the fact that the tube was initially inserted in accordance with a physician's order, to be "critical in making this determination" and changed "this matter from a case where a jury with ordinary knowledge and experience could make a determination . . . to a standard of care case that requires expert testimony" because "a jury [could not] make a determination . . . without knowing what . . . a nurse [should] do" when a [NG] tube is inserted pursuant to an order but subsequently comes out.
The panel disagreed and concluded that the nurses' failure to take any action – not even contacting the physician who ordered that the tube be inserted – demonstrated that a health care provider failed to adhere to a doctor's order and therefore satisfied the purposes of the Affidavit of Merit Statute by establishing that plaintiffs' claim had sufficient merit under the common knowledge exception to proceed.
