Cannot avoid requirements of Affidavit of Merit Statute by naming public entities/organization not defined as licensed professional under statute but that may be liable for professional malpractice pursuant to principles of respondeat superior.

The plaintiff, a state prisoner, claimed he was misdiagnosed by the medical staff of Rutgers University Correctional Healthcare, formerly part of the University of Medicine and Dentistry of New Jersey, which contracted with the state of New Jersey to provide medical services to inmates. The plaintiff was ultimately diagnosed with a ruptured brain abscess. After undergoing brain surgery, it was determined that he was functioning at the cognitive capacity of a six- or seven-year-old. The plaintiff sued only the state of New Jersey for malpractice, inter alia. The State filed a motion to dismiss on the grounds that the plaintiff never served an Affidavit of Merit, as required by statute. The plaintiff argued that an Affidavit of Merit was not required as the State is not a licensed professional identified within the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. The trial court granted the State’s motion, dismissing the action because the underlying claims brought by the plaintiff involved the conduct of licensed professionals otherwise covered under the Affidavit of Merit Statute. The Appellate Division upheld the dismissal, ruling that plaintiffs cannot avoid the requirements of the Affidavit of Merit Statute by naming public entities and/or organizations not defined as licensed professionals under statute but that may be liable for professional malpractice pursuant to respondeat superior principles. This case impacts all licensed professionals who are covered under the Affidavit of Merit Statute. The Appellate Division strengthened the statute itself by eliminating a possible end run on the technical requirements provided for within N.J.S.A. 2A:53A-27. In this case, the plaintiff attempted to bypass the Affidavit of Merit Statute by naming the State rather than its subcontractor, the entity ultimately responsible for the licensed professionals. The Appellate Division likened this case to a prior law suit involving legal malpractice where the plaintiff tried to bypass the Affidavit of Merit by suing several law firms rather than the lawyer himself. Thus, the Appellate Division’s ruling in McCormick v. State provides additional protections to licensed professionals being sued for professional malpractice.

^{Case Law Alerts, 1st Quarter, January 2017. Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}