The Attorneys You Want On Your Side

Lomurro Law attorney makes medical malpractice case law in argument heard by New Jersey Supreme Court

On Behalf of | May 3, 2022 | Firm News |

Attorney Christina Harvey, a partner at Lomurro Law, recently earned a victory for a patient injured by a medical professional in a case heard by the New Jersey Supreme Court.

The New Jersey Supreme Court only hears cases that decide novel and important questions of law that will become precedent for years to come.

The court’s decision, issued on Tuesday, April 12, clarified that when the defendant who is alleged to have injured the plaintiff is not a licensed person, then the injured person does not need to file an affidavit of merit.

In the case heard by the New Jersey Supreme Court, an injured person sued a hospital for the negligence of a radiology technician who required the injured party to hold weights during a radiology study. That request caused substantial injury to the patient. The trial court dismissed the case because it required an affidavit of merit under the Affidavit of Merit Statute. Plaintiff argued dismissal was improper because the plaintiff sued the hospital for the negligence of the radiology technician and not for the hospital’s own professional standard of care. The New Jersey Legislature passed the Affidavit of Merit statute to provide a licensed professional with protection from having to defend against a frivolous complaint. The statute requires an injured party to file an affidavit from an appropriately licensed party within 60 days of the professional’s filing of an answer. Requiring the affidavit of merit is a costly endeavor, particularly when the trial courts misapply the statute’s clear requirements. The statutory language only required an affidavit of merit as to the hospital but does not require an affidavit of merit if professional not identified in the statute committed the negligent act.

The New Jersey Appellate Division had reversed the trial court decision, finding that no affidavit of merit was required because the radiology technician was not a licensed person entitled to protection under the Affidavit of Merit Statute. The New Jersey Supreme Court adopted the argument advanced by the New Jersey Association for Justice and as argued by Christina Harvey, Esq. of Lomurro Law, that while ordinarily the hospital is a licensed entity under the Affidavit of Merit statute, here, the alleged negligence did not involve the duty that the hospital owed as a licensed entity.

The New Jersey Supreme Court held that because the negligence was limited to what the radiology technician did wrong, the hospital was not entitled to an affidavit of merit. The case will make it easier for injured persons to pursue claims against hospitals based upon the conduct of persons who are not listed in the affidavit of merit statute as the costly affidavit of merit will not be required.