Hospitals’ Medical Malpractice Exposure Expanded by NJ Justices

New Jersey hospitals and health care providers will have a harder time eliminating malpractice suits following a state high court ruling allowing patients to bring complaints without a expert reviewing medical records.

A third-party affidavit of merit needed to bring New Jersey professional malpractice lawsuits doesn’t require the plaintiff’s expert to certify that they have reviewed records prior to opining on the validity of a complaint, the New Jersey Supreme Court ruled Thursday. The court also said strict naming of potential defendants in the expert’s affidavit isn’t required under a close reading of the state’s tort reform statute.

“Given that the AOM statute does not make any reference to the review of medical records, we conclude that affiantsare not required to state that they reviewed the medical records of the injured party,” Justice Lee A. Solomon wrote for the unanimous court. “It would therefore be inconsistent with our precedent and the purpose of the statute to uphold a ruling denying this plaintiff the ability to proceed with this medical malpractice claim.”

The statute creates an inference that medical records should be reviewed, since a plaintiff is able to evade some requirements if providers refuse to provide records. But that doesn’t mean the review by an expert is strictly necessary under the law, Solomon said.

The case centered on the death of a diabetic woman whose blood pressure was allegedly not checked, since the providers had thought she was overdosing on drugs. The patient’s mother sued her providers and the Hackensack Meridian Jersey Shore University Medical Center, but wasn’t able to get complete records in time for the filing of her third-party expert’s affidavit.

The court refused to wade into the merits of the broader case, but chose to emphasize that trial courts can avoid appeals over affidavit issues by holding a “Ferreira hearing”—named after another malpractice action—in which the court can dig into health records access and expert blessing of the complaint.

“Failing to hold such a conference in this case gave rise to issues that could have been resolved,” Solomon said. And while the court wasn’t considering the merits of the plaintiff’s argument that her case should proceed, “the trial court’s failure to hold a Ferreira conference would weigh heavily in favor of such a finding.”

Lomurro, Munson, Comer, Brown & Schottland, LLC represented the plaintiff. Orlovsky Moody Schaaff ConlonBedell McGann & Gabrysiak represented the defendants.

The case is Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., N.J., No. A-7-23, 7/11/24.