TRENTON, N.J. (Legal Newsline) - A tort-reform law requiring plaintiffs to submit an affidavit supporting their case before suing medical professionals covers registered nurses but not licensed practical nurses, a New Jersey appeals court ruled, suggesting state lawmakers should amend the statute if they disagree.
Guy Gilligan sued Susan Junod, an LPN, and her employer Virtua Surgical Group after his wife died a week after undergoing colon surgery. Gilligan claimed he called Junod repeatedly for advice because his wife was in pain and couldn’t eat, but the nurse told him she had post-operative gas and should take her medications, try to eat and walk around.
Gilligan originally sued the surgeon, but dropped his case after the surgeon said he knew nothing about the alleged phone calls. Junod disputes Gilligan’s description of the events.
The defendants sought a court order requiring Gilligan to submit an affidavit of merit under a 1995 law designed to cut down on frivolous medical malpractice suits. That law requires an affidavit by “an appropriate licensed person” attesting there is a reasonable probability the defendant’s care fell outside professional standards. The law identifies 16 “licensed persons” including “registered professional nurse.”
The defendants argued the definition of nurse included licensed practical nurses, but the trial judge disagreed and certified the question to the New Jersey’s Appellate Division for an answer. That court agreed with the trial judge in a Nov. 9 decision.
The AOM statute refers to the New Jersey Nursing Statute, which has a separate section dealing with LPNs and states they must work under the direction of an RN or physician, the appeals court ruled. When it wrote the AOM statute, “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,’” the court concluded.
As additional evidence, the court noted that the Legislature started with nine individual professionals plus healthcare facilities, then amended it to add seven more. The New Jersey Supreme Court already supported this interpretation in another case where it didn’t require an AOM for a lawsuit against a hospital based on the negligence of an unlicensed employee.
While “the statute clearly had the intent of weeding out frivolous malpractice lawsuits by requiring AOM in the early stages of litigation,” the court said, it doesn’t apply to medical professionals outside the 16 enumerated types.
“If the Legislature believes that an AOM should be filed to pursue a claim against a licensed practical nurse, the Legislature can and knows how to amend the statute,” the court said, citing its 2008 decision that licensed midwives weren’t covered. The Legislature amended the statute to include them.