SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5439-15T1

FRANK TETTO,

Plaintiff-Appellant,

v.

ST. CLARE'S HOSPITAL,

Defendant-Respondent.

____________________________

Submitted September 19, 2017 – Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, 

Law Division, Morris County, Docket No. 

L-2541-15.

Anthony J. Macri, attorney for appellant.

Rosenberg Jacobs Heller & Fleming, PC, 

attorneys for respondent (Raymond J. Fleming, 

of counsel and on the brief; Christopher 

Klabonski, on the brief).

PER CURIAM

Plaintiff Frank Tetto appeals an August 5, 2016 order 

dismissing his complaint for failure to comply with the Affidavit 

of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29, and with 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

August 27, 2018
2 A-5439-15T1

N.J.S.A. 2A:53-41(a) of the New Jersey Medical Care Access and 

Responsibility and Patients First Act, L. 2004, c. 17 (Patients 

First Act). We hold the AOM statute required plaintiff to provide 

an AOM. We also hold his AOM had to meet the requirements of 

N.J.S.A. 2A:53A-41(a) because he claimed defendant St. Clare's 

Hospital was vicariously liable for the alleged negligence of the 

specialist physicians who diagnosed him at the hospital. Because 

his AOM did not meet those requirements, we affirm.

I.

Plaintiff's complaint alleges as follows. On December 29, 

2013, he went to defendant's emergency room, complaining of 

jaundice. He "was seen by a physician who was an employee or 

agent of the defendant . . . who took a history from him." He 

told the physician that "he occasionally had wine with dinner." 

Plaintiff's answers to interrogatories stated he had been drinking 

a glass or two of wine with dinner for the past two or three 

months. The hospital's records indicated he said he had been 

drinking one to two glasses of wine daily for three months. 

Plaintiff's complaint alleged "[t]he physician negligently 

interpreted the history and symptoms, and negligently and 

improperly concluded that the plaintiff was an alcoholic and that 

plaintiff's jaundice was caused by an alcohol problem." The 
3 A-5439-15T1

complaint alleged "plaintiff was suffering pancreatic cancer which 

was the cause of the jaundice."

Plaintiff's complaint alleged that as a result of the 

physician's negligence, "information [was] put into his record to 

the effect that he was an alcoholic." In his answers to 

interrogatories, he specified he was referring to his "discharge 

papers [which] had the misdiagnosis of '3. Alcohol abuse.'" 

On December 30, 2013, plaintiff requested his medical record 

be amended to remove that diagnosis. Defendant amended its records 

to remove the diagnosis. On October 26, 2015, plaintiff filed his 

complaint "for damages" against defendant in the Law Division. 

On December 14, 2015, defendant filed its answer asserting 

plaintiff's claims were subject to the AOM requirement in N.J.S.A. 

2A:53A-27. On January 29, 2016, the Law Division ordered that 

"plaintiff[] must file and serve an [AOM]" by "February 12, 2016, 

or with the consent of the parties by April 12, 2016." Plaintiff 

filed an AOM dated February 19, 2016, by Thomas Bojko, M.D., a 

pediatrician with experience in healthcare administration. 

On April 13, 2016, defendant filed a motion to dismiss 

plaintiff's complaint for failing to comply with the AOM statute 

and N.J.S.A. 2A:53A-41(a). Defendant's certification stated the 

"alcohol abuse" diagnosis was made by doctors specializing in 

internal medicine or emergency medicine.
4 A-5439-15T1

On August 5, 2016, after hearing argument, the trial court 

granted defendant's motion, and dismissed plaintiff's complaint 

with prejudice. Plaintiff appeals.

II.

We must hew to our standard of review. We review the 

decisions to dismiss under the AOM statute "de novo." Castello 

v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016). Moreover, 

plaintiff's appeal raises legal issues of statutory construction 

that we review de novo. Meehan v. Antonellis, 226 N.J. 216, 230 

(2016). 

"When the interpretation of a statute is at issue, '[t]he 

objective of that task "is to discern and effectuate the intent 

of the Legislature."'" Id. at 232 (citations omitted). 

We begin by giving the words of the statute 

"their ordinary meaning and significance." 

Words, phrases, and clauses cannot be viewed 

in isolation; all the parts of a statute must 

be read to give meaning to the whole of the 

statute. In this way, we must construe the 

statute sensibly and consistent with the 

objectives that the Legislature sought to 

achieve. If the statute's plain language 

reveals the Legislature's intent, our 

interpretative mission should come to an end. 

We resort to extrinsic evidence, such as 

legislative history, only "if there is 

ambiguity in the statutory language that leads 

to more than one plausible interpretation," 

or "if a plain reading of the statute leads 

to an absurd result or if the overall 

statutory scheme is at odds with the plain 

language."
5 A-5439-15T1

[Nicholas v. Mynster, 213 N.J. 463, 480 (2013) 

(citations omitted).]

III.

First, plaintiff claims his complaint does not fall under the 

AOM statute because it is not a medical malpractice action. The 

AOM statute provides in pertinent part:

In any action for damages for personal 

injuries, wrongful death or property damage 

resulting from an alleged act of malpractice 

or negligence by a licensed person in his 

profession or occupation, the plaintiff shall, 

within 60 days following the date of filing 

of the answer to the complaint by the 

defendant, provide each defendant with an 

affidavit of an appropriate licensed person 

that there exists a reasonable probability 

that the care, skill or knowledge exercised 

or exhibited in the treatment, practice or 

work that is the subject of the complaint, 

fell outside acceptable professional or 

occupational standards or treatment 

practices. The court may grant no more than 

one additional period, not to exceed 60 days, 

to file the affidavit pursuant to this 

section, upon a finding of good cause.

In the case of an action for medical 

malpractice, the person executing the 

affidavit shall meet the requirements of a 

person who provides expert testimony or 

executes an affidavit as set forth in section 

7 of P.L. 2004, c. 17 (C. 2A:53A-41).

[N.J.S.A. 2A:53A-27 (emphasis added).] 

Plaintiff's complaint falls within the scope of the first 

paragraph of N.J.S.A. 2A:53A-27, which "applies to all actions for 
6 A-5439-15T1

damages based on professional malpractice." Paragon Contractors, 

Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 421 (2010). 

There are three elements to consider when 

analyzing whether the statute applies to a 

particular claim: (1) whether the action is 

for "damages for personal injuries, wrongful 

death or property damage" (nature of injury); 

(2) whether the action is for "malpractice or 

negligence" (cause of action); and (3) whether 

the "care, skill or knowledge exercised or 

exhibited in the treatment, practice or work 

that is the subject of the complaint [] fell 

outside acceptable professional or 

occupational standards or treatment 

practices" (standard of care). 

[Couri v. Gardner, 173 N.J. 328, 334 (2002) 

(quoting N.J.S.A. 2A:53A-27)]. 

First, plaintiff's complaint brought an "action for damages 

for personal injuries . . . or property damage." N.J.S.A. 2A:53A27. The complaint averred that as a result of the discharge 

diagnosis, plaintiff incurred damages including extreme and severe 

mental distress, damage to his reputation as this improper medical 

history was given and available to subsequent healthcare 

professionals, and legal fees to get defendant to change this 

wrongful entry into his medical records.

Personal injuries include "[a]ny invasion of a personal 

right, including mental suffering[.]" Black's Law Dictionary 802 

(8th ed. 2004). "The term 'property damage'" includes "damages 

both to real and personal property." Cornblatt v. Barow, 303 N.J. 
7 A-5439-15T1

Super. 81, 86 (App. Div. 1997), rev'd on other grounds, 153 N.J. 

218 (1998). "Personal property embraces everything that may be 

tangible or intangible such as a chose in action" or a claim for 

money damages. Ibid. ("conclud[ing] that a claim against an 

attorney for alleged malpractice is a claim for property damage"); 

see Nuveen Mun. Tr. v. Withumsmith Brown P.C., 752 F.3d 600, 603 

(3d Cir. 2014); Nagim v. N.J. Transit, 369 N.J. Super. 103, 118-

19 (Law Div. 2003); cf. Couri, 173 N.J. at 334-35 (finding N.J.S.A. 

2A:53A-27 inapplicable because the "plaintiff narrowed his request 

for damages to the $12,000 that he paid to defendant," and thus 

sought only reimbursement).

Second, plaintiff's complaint alleged the damages "result[ed]

from an alleged act of malpractice or negligence by a licensed 

person in his profession or occupation." N.J.S.A. 2A:53A-27. A 

"licensed person" includes "a physician in the practice of 

medicine," as well as "a health care facility." N.J.S.A. 2A:53A26(f), (j). The complaint includes counts alleging causes of 

action for negligence by the physician, negligence by the hospital, 

intentional or negligent infliction of emotional distress, 

misrepresentation, injurious falsehoods, and libel. Plaintiff's 

allegation that the damages occurred "[a]s a result of the 

aforesaid negligence of the physician" was incorporated into every 

count of his complaint. 
8 A-5439-15T1

Plaintiff did not use the term "malpractice," but the Court 

in Couri held "[i]t is not the label placed on the action that is 

pivotal but the nature of the legal inquiry." 173 N.J. at 340.

Accordingly, when presented with a tort or 

contract claim asserted against a professional 

specified in the statute, rather than focusing 

on whether the claim is denominated as tort 

or contract, attorneys and courts should 

determine if the claim's underlying factual 

allegations require proof of a deviation from

the professional standard of care applicable 

to that specific profession. If such proof 

is required, an affidavit of merit is required 

for that claim, unless some exception applies.

[Ibid. (emphasis added).]

 

The Court in Couri stated that this "standard would include 

allegations that a psychiatrist failed to diagnose a patient 

properly or provide proper treatment, [but] it would exclude 

allegations that a psychiatrist negligently tripped a patient when 

the patient entered the doctor's office." Id. at 341 (emphasis 

added). 

Although plaintiff's complaint does not use the word 

"diagnosis," that is exactly the process it describes: "The 

physician negligently interpreted the history and symptoms, and 

negligently and improperly concluded that the plaintiff was an 

alcoholic and that plaintiff's jaundice was caused by an alcohol 

problem." The complaint alleged the physician failed to diagnose 

him properly because it was really "pancreatic cancer which was 
9 A-5439-15T1

the cause of the jaundice." He also contended this resulted in 

false information that he was an alcoholic being placed in his 

record, namely the diagnosis of "alcohol abuse" listed as one of 

four "Discharge Diagnoses." Thus, plaintiff's factual evaluations 

required proof of a misdiagnosis, an archetypal "deviation from 

the professional standard of care applicable to [the medical] 

profession." Couri, 173 N.J. at 340. 

Plaintiff argues this was an administrative failure, not a 

failure of diagnosis. However, plaintiff is not claiming the 

physician correctly diagnosed him but a different diagnosis was 

erroneously placed on his discharge form by administrative 

personnel. Rather, he is claiming the physician incorrectly 

diagnosed him, and the discharge form was harmful because it 

contained that misdiagnosis. 

Finally, plaintiff's complaint claimed the "care, skill or 

knowledge exercised or exhibited in the treatment, practice or 

work that is the subject of the complaint [] fell outside 

acceptable professional or occupational standards or treatment 

practices." Ibid.; see Alpert, Goldberg, Butler, Norton & Weiss, 

P.C. v. Quinn, 410 N.J. Super. 510, 540 (App. Div. 2009) (finding 

an AOM is required for a counterclaim making "allegations that 

'the quality of work product was not sufficient,' and that 

plaintiff 'failed to do a complete and competent job'"). 
10 A-5439-15T1

Plaintiff cites Couri, but again Couri defeats his claim. In 

Couri, "the crux of plaintiff's complaint is that defendant 

[psychiatrist] acted improperly as an expert witness by 

disseminating [his] report to others without the knowledge or 

consent of plaintiff." 173 N.J. at 342. The Court stressed that 

"[p]laintiff is not claiming that defendant erred in respect of 

the conclusions that he drew concerning psychiatric/medical 

matters or that defendant acted improperly from a 

psychiatric/medical standpoint." Ibid. That is precisely what 

plaintiff alleged about the physician here. 

Thus, plaintiff's complaint alleged negligent diagnosis by a 

physician in violation of professional standards. That fits the 

definition of "medical malpractice": "A doctor's failure to 

exercise the degree of care and skill that a physician or surgeon 

of the same medical specialty would use under similar 

circumstances." Black's Law Dictionary 978 (8th ed. 2004). Thus, 

this is "an action for medical malpractice" within the meaning of 

N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41. See, e.g., Buck v. 

Henry, 207 N.J. 377, 384 (2011) (applying N.J.S.A. 2A:53A-41 where 

the plaintiff alleged the doctor "failed to properly diagnose"

him). 
11 A-5439-15T1

IV.

Plaintiff argues he was not required to provide an AOM because 

this case falls under the common knowledge exception. An AOM 

"need not be provided in common knowledge cases when an expert 

will not be called to testify 'that the care, skill or knowledge 

. . . [of the defendant] fell outside acceptable professional or 

occupational standards or treatment practices.'" Hubbard ex rel. 

Hubbard v. Reed, 168 N.J. 387, 390 (2001) (quoting N.J.S.A. 2A:53A27). "The [common knowledge] doctrine applies where 'jurors' 

common knowledge as lay persons is sufficient to enable them, 

using ordinary understanding and experience, to determine a 

defendant's negligence without the benefit of the specialized 

knowledge of experts.'" Id. at 394. Thus, in Hubbard, the Court 

applied the exception where a dentist was told to pull one tooth 

but pulled the wrong tooth, a classic "common knowledge" case. 

Id. at 396.1

Nonetheless, the Supreme Court cautioned that "we construe 

that exception narrowly in order to avoid non-compliance with the 

[AOM] statute." Id. at 397. We have rejected application of the 

common knowledge exception where defendants alleged medical 

 

1 Hubbard advised that "the wise course of action in all 

malpractice cases would be for plaintiffs to provide affidavits 

even when they do not intend to rely on expert testimony at trial." 

168 N.J. at 397. Plaintiff asserts he followed that advice.
12 A-5439-15T1

misjudgments. Risko v. Ciocca, 356 N.J. Super. 406, 409-11 (App. 

Div. 2003); Aster ex rel. Garofalo v. Shoreline Behavioral Health, 

346 N.J. Super. 536, 542 n.4 (App. Div. 2002).

Plaintiff alleged that a physician "failed to diagnose [him] 

properly," which "require[s] proof of a deviation from [a] 

professional standard of care." Couri, 173 N.J. at 341. 

Because plaintiff's predicate for liability as 

asserted in the complaint is the manner in 

which a "licensed person" exercised 

[professional] responsibilities and judgment, 

and because the respects in which the 

deficiencies occurred, if indeed they did 

occur, is not a matter within the knowledge 

of the average citizen or juror, plaintiff 

would need an expert in order to make out a 

prima facie case before the jury.

[Aster, 346 N.J. Super. at 542 n.4.]

We agree with the trial court that it was beyond the knowledge

of lay persons whether plaintiff's jaundice was caused by his 

drinking or pancreatic cancer, or whether his acknowledged daily 

drinking justified the medical diagnosis of "alcohol abuse."

Plaintiff argues the common knowledge exception applies 

because this case is about keeping accurate hospital records. 

However, he did not allege that his diagnosis was incorrectly 

recorded. Cf. Palanque v. Lambert-Woolley, 168 N.J. 398, 400-01, 

406-07 (2001) (ruling a physician's misreading specimen 

identification numbers as test results and falsely telling a woman 
13 A-5439-15T1

she was pregnant fell within the common knowledge exception). 

Rather, he is arguing the physician made an incorrect diagnosis. 

Accordingly, he was required to present an AOM and expert testimony 

to make out his claim.

V.

Plaintiff points out he "is not suing any individual doctors, 

only the hospital." He claims that therefore "N.J.S.A. 2A:53A41(a)[] does not apply since the hospital is not a 'specialist or 

subspecialist.'" To resolve his claim, we must consider both 

N.J.S.A. 2A:53A-41(a) and the principles of vicarious liability.

A.

We first examine the language of N.J.S.A. 2A:53A-41(a). That 

section states in pertinent part:

In an action alleging medical malpractice, a 

person shall not give expert testimony or 

execute an affidavit pursuant to the 

provisions of P.L. 1995, c. 139 (C. 2A:53A-26 

et seq.) on the appropriate standard of 

practice or care unless the person is licensed 

as a physician or other health care 

professional in the United States and meets 

the following criteria:

a. If the party against whom or on whose behalf 

the testimony is offered is a specialist or 

subspecialist . . . , the person providing the 

testimony shall have specialized . . . in the 

same specialty or subspecialty . . . as the 

party against whom or on whose behalf the 

testimony is offered, and if the person

against whom or on whose behalf the testimony 

is being offered is board certified, . . . the 
14 A-5439-15T1

expert witness shall be . . . (2) a specialist 

or subspecialist . . . who is board certified 

in the same specialty or subspecialty . . .

[and has] devoted a majority of his 

professional time to either: (a) the active 

clinical practice of the same health care 

profession in which the defendant is licensed, 

and, if the defendant is a specialist or 

subspecialist . . . , the active clinical 

practice of that specialty or subspecialty 

. . . [or] (b) the instruction of students 

. . . in the same health care profession in 

which the defendant is licensed, and, if that 

party is a specialist or subspecialist . . .

in the same specialty or subspecialty[.]

[N.J.S.A. 2A:53A-41(a), (a)(2) (emphasis 

added).]2

Thus, our Legislature referred to the specialist physician 

as "the party against whom or on whose behalf the testimony is 

offered," "the person against whom or on whose behalf the testimony 

is being offered," "the defendant," and "that party." Ibid. All 

of those phrases on their face refer to the specialist physician 

as a named party in the medical malpractice litigation. "[T]he 

defendant" clearly refers to a named defendant, and "that party" 

refers to "the defendant" a few words earlier. Ibid. "[T]he 

party against whom or on whose behalf the testimony is offered" 

 

2 N.J.S.A. 2A:53A-41(b) similarly provides that "[i]f the party 

against whom or on whose behalf the testimony is offered is a 

general practitioner, the expert witness" shall either be 

practicing as a general practitioner or teaching "in the same 

health care profession in which the party against whom or on whose 

behalf the testimony [is offered] is licensed." 
15 A-5439-15T1

also clearly refers to a party to the litigation. "[T]he person

against whom or on whose behalf the testimony is offered" likewise 

appears to refer to a party, and the Legislature treated both 

phrases as synonymous. 

If a plaintiff sues only a health care facility and not the 

specialist physician, the "defendant" is the health care facility, 

not a specialist physician. Ibid. Similarly, it is the health 

care facility "against whom or on whose behalf the testimony is 

offered." Ibid. The health care facility is not "a specialist 

or subspecialist," "board certified," or "licensed" in a health 

care profession. Ibid. Thus, under the plain language of N.J.S.A. 

2A:53A-41(a), suing only a health care facility does not trigger 

the requirement of an AOM from a person with the "same" specialty 

or subspecialty, board certification, or license. Ibid. 

That conclusion is corroborated by considering the entire 

Patients First Act of which N.J.S.A. 2A:53A-41(a) is a part. 

Elsewhere in the Patients First Act, the Legislature used 

"defendant" and "party" to refer to a party in the medical 

malpractice litigation.3 The Legislature used "third party" to 

 

3 N.J.S.A. 2A:53A-40(a) (referring to "a health care provider named 

as a defendant in the medical malpractice action"); N.J.S.A. 

2A:53A-40(c) (addressing "a health care provider named as a 

defendant" and reinstatement of a dismissed "party" and sanctions 

paid to a "party"); N.J.S.A. 2A:53A-40(d) (discussing sanctions 
16 A-5439-15T1

refer to other persons.4 The Legislature used "health care 

facility" elsewhere, but not in N.J.S.A. 2A:53A-41(a).5

Even if N.J.S.A. 2A:53A-41's language was ambiguous, its 

legislative history indicates "the party" and "the defendant" are 

synonymous. The language including the phrases "the party against 

whom or on whose behalf the testimony is offered," "the person 

against whom or on whose behalf the testimony is being offered," 

"the defendant," and "that party" in N.J.S.A. 2A:53A-41(a) was in 

a section of the original bill, and remained unchanged through

enactment. A. 50, 4-5 (Mar. 4, 2004).6 The bill's sponsor 

 

paid to a "party") N.J.S.A. 2A:53A-41(c) (considering a "motion 

by the party"); N.J.S.A. 2A:53-41(f) (authorizing damages for "the 

party for whom the person was testifying as an expert"); N.J.S.A. 

2A:53A-42 (discussing additur and remittitur "motions by any 

party" after "a verdict in favor of the complaining party"); 

N.J.S.A. 17:30D-7(a) (requiring notice of "any medical malpractice 

claim settlement, judgment or arbitration award to which the 

practitioner is a party"); N.J.S.A. 17:30D-27(a) (discussing "a 

defendant in an action brought for medical malpractice"); N.J.S.A. 

17:30D-27(b) (discussing the form of judgment "[u]nless otherwise 

agreed to by the parties").

4 N.J.S.A. 17:30D-19(d)(4) (a purchasing alliance may "contract 

with third parties"); L. 2004, c. 17, § 31(d)(2) (creating a task 

force to study "the impact of third party reimbursement policies

by insurers and health maintenance organizations"). 

5 See, e.g., N.J.S.A. 2A:62-1.3; N.J.S.A. 45:9-19.13(b); N.J.S.A. 

17:30D-7(a).

6 The same language was in one Senate bill, S. 50, 5 (Mar. 22, 

2004), and similar language using "party" and "defendant" was in 

another Senate bill, S. 551, 7 (pre-filed for 2004).
17 A-5439-15T1

explained that section "establishes qualifications for expert 

witnesses in medical malpractice actions and for the purpose of 

executing an affidavit of merit, and provides that an expert must 

have the same type of practice and possess the same credentials, 

as applicable, as the defendant health care provider, unless waived 

by the court." Sponsors' Statement appended to A. 50 20 (Mar. 4, 

2004) (emphasis added). This explanation of the section was

repeated unchanged throughout the legislative process.7 The 

legislators' consistent description of the specialist physician 

as "the defendant health care provider" corroborates that when the 

Legislature used the "defendant" and "party" language in N.J.S.A. 

2A:53A-41(a), it was referring to a specialist physician who was 

a defendant in the medical malpractice action. 

The legislative findings in the Patients First Act show that 

the Legislature's focus was on individual specialist physicians. 

The Legislature found and declared: 

a. One of the most vital interests of the State 

is to ensure that high-quality health care 

 

7 Assemb. Appropriations Comm. Statement To Assemb. Comm.

Substitute For A. 50 1-2 (Mar. 4, 2004); Assemb. Health & Human 

Services Comm. Statement To Assemb. Comm. Substitute For A. 50 1-

2 (Mar. 4, 2004); Assemb. Financial Institutions & Ins. Comm. 

Statement To Assemb. Comm. Substitute For A. 50 2 (Mar. 4, 2004); 

Sen. Health, Human Services And Senior Citizens Comm. Statement 

To Assemb. Comm. Substitute For A. 50 2 (Mar. 22, 2004); accord

Sponsors' Statement appended to S. 50 20 (Mar. 22, 2004); Sen. 

Health, Human Services And Senior Citizens Comm. Statement To Sen.

Comm. Substitute For S. 50 & S. 551 2 (Mar. 22, 2004). 
18 A-5439-15T1

continues to be available in this State and 

that the residents of this State continue to 

have access to a full spectrum of health care 

providers, including highly trained 

physicians in all specialties; 

b. The State's health care system and its 

residents' access to health care providers are 

threatened by a dramatic escalation in medical 

malpractice liability insurance premiums, 

which is creating a crisis of affordability 

in the purchase of necessary liability 

coverage for our health care providers; 

c. One particularly alarming result of rising 

premiums is that there are increasing reports 

of doctors retiring or moving to other states 

where insurance premiums are lower, dropping 

high-risk patients and procedures, and 

practicing defensive medicine;

d. The reasons for the steep increases in the 

cost of medical malpractice liability 

insurance are complex and involve issues 

related to: the State's tort liability system; 

the State's health care system, which includes 

issues related to patient safety and medical 

error reporting; and the State's regulation 

and requirements concerning medical 

malpractice liability insurers; and

e. It is necessary and appropriate for the 

State to take meaningful and prompt action to 

address the various interrelated aspects of 

these issues that are impacted by, or impact 

on, the State's health care system; and

f. To that end, this act provides for a 

comprehensive set of reforms affecting the 

State's tort liability system, health care 

system and medical malpractice liability 

insurance carriers to ensure that health care 

services continue to be available and 

accessible to residents of the State and to 
19 A-5439-15T1

enhance patient safety at healthcare 

facilities. 

[N.J.S.A. 2A:53A-38 (emphasis added).]

 

"One of those reforms is embodied in the enhanced standards 

contained in Section 41 [N.J.S.A. 2A:53A-41]." Meehan, 226 N.J. 

at 234. By requiring that an AOM or expert testimony in a medical 

malpractice action against a specialist physician generally must 

be provided by a person in the same specialty, the Legislature 

sought to weed out meritless lawsuits against specialist 

physicians, and thus reduce their medical malpractice insurance 

premiums. That serves the Legislature's goals of keeping 

specialist "doctors" from leaving the State, or dropping high-risk 

practices and procedures, and thus ensuring access to specialist 

"physicians." N.J.S.A. 2A:53A-38. Thus, the Legislature's focus 

was on suits against individual physician specialists. See Lomando 

v. United States, 667 F.3d 363, 387 (3d Cir. 2011); N.J. State Bar 

Ass'n v. State, 382 N.J. Super. 284, 298-303 (2005), aff'd, 387

N.J. Super. 24 (App. Div. 2006).

All of our Supreme Court's cases involving the statute have 

thus far involved suits against individual specialist physicians. 

Nicholas, 213 N.J. at 470 & n.5; Buck, 207 N.J. at 383; Ryan v. 

Renny, 203 N.J. 37, 43 (2010). The Court has referred to the 

statute as "applying only to physicians who are defendants in 
20 A-5439-15T1

medical malpractice actions" rather than dentists in dental 

malpractice actions. Meehan, 226 N.J. at 234. The Court has also 

referred to the statute as applying: to a "physician party" and 

"parties to a medical malpractice action," id. at 233; to a 

"defendant physicians," Nicholas, 213 N.J. at 467-468, 481-82, 

485-86; Ryan, 203 N.J. at 52; where "the defendant is a specialist, 

board-certified, or a general practitioner," Ryan, 203 N.J. at 57-

58; see id. at 52-54; and to "a physician defending against a 

malpractice claim," Buck, 207 N.J. at 396; see R. 4:5-3. Our 

cases have used similar terms. E.g., Castello, 446 N.J. Super. 

at 15-18; Medina v. Pitta, 442 N.J. Super. 1, 18-30 (App. Div. 

2015); Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168, 

178, 181 (App. Div. 2015). Thus, courts have read N.J.S.A. 2A:53A41 in accordance with its plain language.

Accordingly, we decline to find that the Legislature decided 

whether the AOM requirements of N.J.S.A. 2A:53A-41 should apply 

if the only defendant was a health care facility. The statutory 

language and legislative history indicate the Legislature was 

focused on suits against individual specialist physicians. The 

Legislature was silent as to health care facilities. N.J.S.A. 

2A:53A-41(a) solely addresses the requirements for an AOM and for 

expert testimony in situations where the specialist physician is 

a party.
21 A-5439-15T1

B.

In Hubbard, our Supreme Court created an exemption from the 

AOM requirement for common knowledge cases, reasoning: "We do not 

know whether the drafters of this legislation even contemplated a 

common knowledge exemption, but believe such an exemption to 

comport with their likely intent, and with a practical common 

sense interpretation of the statute." 168 N.J. at 395-96. 

Similarly, it does not appear that the Legislature considered 

whether a defendant who invoked the judicially-crafted principles 

of vicarious liability to sue a health care facility based on the 

alleged negligence of a specialist physician should be required 

to meet the AOM requirements. We believe that such a requirement 

comports with their likely intent if they had considered that 

issue, and with a practical, common-sense implementation of the 

statutory scheme. In any event, we believe it is called for by 

an even-handed application of the principles of vicarious 

liability.

Plaintiff's complaint invokes the judicially-crafted 

principles of vicarious liability for agency and respondeat 

superior. After describing "the negligence of the physician," his 

complaint repeatedly claimed defendant was "liable for the 

referenced negligent acts of" its "employees, agents, or 

servants." Where a plaintiff invokes the principles of vicarious 
22 A-5439-15T1

liability in an effort to hold a health care facility liable as a 

principal or employer for the negligence or malpractice of a 

specialist physician agent or employee, then under those 

principles the liability of the principal or employer must be 

judged on the same basis as the liability of the agent or employee. 

The courts of New Jersey apply "a vicarious liability 

principle pursuant to which a master will be held liable in certain 

cases for the wrongful acts of his servants or employees." Carter 

v. Reynolds, 175 N.J. 402, 408 (2003). The New Jersey courts also 

apply the companion "principle that 'a verdict which exonerates 

the employee from liability requires also the exoneration of the 

employer.'" Walker v. Choudhary, 425 N.J. Super. 135, 152 (App. 

Div. 2012) (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954)). 

"This conclusion is rooted in 'considerations of fundamental 

fairness that, if the employee is not to be held responsible for 

his wrongdoing, the employer whose liability is asserted solely 

upon the basis of imputed responsibility for his employee's wrong 

cannot in fairness and justice be required to respond in damages 

for it.'" Ibid. (quoting Kelley, 16 N.J. at 271). 

We believe the same principles of fundamental fairness apply 

here. N.J.S.A. 2A:53A-41(a) requires that a specialist physician 

may not be sued or held liable for alleged negligence within that 

specialty unless an AOM is provided, and expert testimony 
23 A-5439-15T1

presented, by an expert with the same specialty. Here, plaintiff 

sought to hold a health care facility vicariously liable for the 

alleged malpractice or negligence of a specialist physician. If 

the specialist physician cannot be held liable under N.J.S.A. 

2A:53A-41(a) because no expert with that specialty will provide 

an AOM or testify that any negligence occurred, the health care 

facility cannot in fairness and justice be held vicariously liable. 

Thus, considerations of fundamental fairness require the same AOM 

and expert testimony requirements apply before a health care 

facility can be found liable for the specialist physician's alleged 

negligence under principles of vicarious liability.

We have repeatedly utilized the principles governing 

vicarious liability to govern the application of the AOM statute. 

In Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 

590 (App. Div. 2001), the plaintiff sued an engineering firm, 

alleging it "was responsible, under respondeat superior, for its 

hydrogeologist's negligent siting of [a] well." Id. at 597 (also 

noting "[t]he firm may also be responsible for the hydrogeologist's 

work on an agency theory"). We held the plaintiff properly 

supplied the firm with an AOM from a geologist, "despite the fact 

that only the engineering firm was sued," because "[t]he liability 

pressed against the engineering firm is solely vicarious." Id.

at 598.
24 A-5439-15T1

In Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, 

Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div. 2010), the 

plaintiff sued only law firms, based on the "allegedly negligent 

omissions by a [deceased] patent attorney who had worked, in 

succession, at the two law firms." Id. at 4-5, 9. The plaintiff 

argued it was not required to serve an AOM on the firms because 

N.J.S.A. 2A:53A-26(c) listed only "an attorney" and not a law firm 

as a "licensed person" entitled to an AOM. Id. at 16. We rejected 

that claim, emphasizing: "if plaintiff's reading of the statute 

were accepted, that individualized protection would provide no 

solace to a law firm that could have vicarious liability for the 

actions or inactions of the licensed attorneys employed by, or 

affiliated with, that firm." Id. at 22. We rejected that result 

because the plaintiff sought "to invoke principles of vicarious 

liability . . . to make those law firms financially accountable 

for the harm that" their employees caused. Id. at 23; see id. at

18, 23 (citing with approval Martin v. Perinni Corp., 37 F. Supp. 

2d 362, 365-66 (D.N.J. 1999), which applied principles of vicarious 

liability to require an AOM against an architectural firm run by 

a licensed architect). 

In Shamrock, we agreed "it would be 'entirely anomalous' to 

allow a plaintiff to circumvent the affidavit requirement by naming 

only law firms as defendants in a legal malpractice complaint and 
25 A-5439-15T1

not the individual attorneys who performed the services." Id. at

26. "The 'salutary benefit' of the affidavit of merit - in 

winnowing out unfounded malpractice claims, and in reducing 

burdens on parties, counsel, witnesses, jurors, and our publiclyfunded state court system - logically should apply to this case." 

Ibid.8

In Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265 (App. 

Div. 2011), we cited with approval the opinion in Nagim requiring 

a plaintiff to provide an AOM to "a firm comprised of licensed 

persons even though it did not qualify as a licensed person 

itself." Id. at 272 (alterations in original) (citing Nagim, 369 

N.J. Super. at 109). We noted Nagim's ruling that "the purpose 

of the [AOM Statute] would be significantly thwarted if [the] 

plaintiffs could avoid [its] requirements . . . by simply alleging 

professional negligence on the part of a firm of licensed 

professionals, without naming any such individual professional 

specifically" because the firm's liability "is dependent upon the 

acts or omissions of its individual employees." Id. at 272 

(alterations in original) (quoting Nagim, 369 N.J. Super. at 109). 

 

8 Shamrock also found that "the wording of the affidavit of merit 

statute contemplates such potential vicarious liability," and that 

"[t]he provision's focus is on the resulting harm, not on the 

business forms of the named defendants." Id. at 23. We refused 

to "read [it] in a crabbed fashion that leads to anomalous 

results." Id. at 26. 
26 A-5439-15T1

We ruled: "Read together, [Nagim and Shamrock] hold that when a 

firm's shareholders are licensed persons under the statute, a 

plaintiff is required to provide an AOM in order to pursue 

litigation against the firm alone under respondeat-superior 

principles." Id. at 273.9

We later ruled "[t]he requirement to serve an AOM also applies 

. . . where a plaintiff 'wishes to invoke principles of vicarious 

liability' against partners of a law firm for a fellow partner's 

malpractice or negligence." Mortg. Grader, Inc. v. Ward & Olivo, 

LLP, 438 N.J. Super. 202, 214 (App. Div. 2014) (quoting Shamrock, 

416 N.J. Super. at 23). In affirming on other grounds, the Supreme 

Court stated it was sufficient that the plaintiff served an AOM 

on the law firm and the allegedly negligent partner. Mortg. 

Grader, Inc. v. Ward & Olivo, LLP, 225 N.J. 423, 443 (2016).

Finally, in McCormick v. State, 446 N.J. Super. 603 (App. 

Div. 2016), a prisoner sued the State alleging negligent treatment

by the prison's contract medical staff. Id. at 607-08. Faced 

with the issue "whether the plaintiff can avoid the need to obtain 

 

9 Subsequently, we have reiterated that Shamrock requires 

plaintiffs to provide AOMs to entities "if the claim were solely 

based upon a theory of vicarious liability or agency" for an 

employee or agent who was a licensed person who allegedly acted 

negligently. Hill Intern. v. Atl. City Bd. of Educ., 438 N.J. 

Super. 562, 591-93 (App. Div. 2014), appeal dismissed, 224 N.J. 

523 (2016); Mazur, 441 N.J. Super. at 183.
27 A-5439-15T1

an AOM by suing only the public entity and not the professionals," 

"we conclude[d] that such circumvention of the statute is 

impermissible and affirm[ed] the trial court's determination that 

an AOM was required." Id. at 607. We ruled: 

If such professionals while serving the State, 

or for that matter any other public entity, 

engage in harmful conduct that deviates from 

the standards of care of their respective 

fields of licensure, and a plaintiff claims 

that the defendant public entity is liable for 

that harm under agency principles, then an AOM 

from an appropriate qualified person is 

necessary to support the lawsuit.

[Id. at 613 (emphasis added).]

McCormick reiterated that "an AOM is still required when the 

plaintiff's claim of vicarious liability hinges upon allegations 

of deviation from professional standards of care by licensed 

individuals who worked for the named defendant." Id. at 613-16. 

Thus, we held that "an AOM [is] required when a tort plaintiff 

sues a public entity for vicarious liability based on the 

professional negligence of its staff" in their capacity as licensed 

persons. Id. at 617-18. "If an AOM is called for, a plaintiff 

may not evade the requirement by suing only a public entity and 

arguing that the entity is not a licensee listed under [N.J.S.A. 

2A:53A-26]." Id. at 614. 

In McCormick, we also suggested that, "if the professional 

who caused the harm is a physician, the more stringent 
28 A-5439-15T1

specialization and sub-specialization requirements of the Patients 

First Act, as set forth in Section 41, may constrict the range of 

appropriate affiants." Id. at 613 n.3. In remanding, we 

instructed that "where a plaintiff chooses to sue a public entity 

for medical malpractice on a theory of vicarious liability," the 

defendant should indicate the "specialties of the physicians, if 

any, involved in the defendant's care, along with whether the 

treatment the defendant received involved those specialties," and 

that the plaintiff must provide the AOMs "required under Sections 

27 and 41 of the AOM statute [] that correspond to the 

qualifications of the individual professionals disclosed by the 

defendant." Id. at 619.

We now hold what we suggested in McCormick: N.J.S.A. 2A:53A41(a)'s requirements for an AOM from a person with the same 

specialty as the allegedly negligent specialist physician apply 

when the plaintiff sues only an entity and claims it is vicariously 

liable for the specialist physician's negligence. As a matter of 

"fundamental fairness," if a plaintiff invokes the principles of 

vicarious liability to hold an entity liable for a specialist 

physician's negligence, then the plaintiff under those principles 

should have to provide the same AOM and expert testimony as 

required to find liability against the specialist physician. 

Walker, 425 N.J. Super. at 152. Again, "if the employee is not 
29 A-5439-15T1

to be held responsible for his wrongdoing, the employer whose 

liability is asserted solely upon the basis of imputed 

responsibility for his employee's wrong cannot in fairness and 

justice be required to respond in damages for it.'" Ibid. (quoting 

Kelley, 16 N.J. at 271).

We find further support in a similar case applying a 

specialist physician statute similar to N.J.S.A. 2A:53A-41.10 A 

 

10 That Michigan statute provides:

In an action alleging medical malpractice, a 

person shall not give expert testimony on the 

appropriate standard of practice or care 

unless the person is licensed as a health 

professional in this state or another state 

and meets the following criteria:

(a) If the party against whom or on whose 

behalf the testimony is offered is a 

specialist, specializes at the time of the 

occurrence that is the basis for the action 

in the same specialty as the party against 

whom or on whose behalf the testimony is 

offered. However, if the party against whom 

or on whose behalf the testimony is offered

is a specialist who is board certified, the 

expert witness must be a specialist who is 

board certified in that specialty.

(b) . . . [The expert must have] devoted a 

majority of his or her professional time to 

either or both of the following:

(i) The active clinical practice of the same 

health profession in which the party against 

whom or on whose behalf the testimony is 

offered is licensed and, if that party is a 
30 A-5439-15T1

plaintiff sued only the hospital, and claimed she therefore did 

not have to file an AOM from an expert in the same specialty as 

the allegedly negligent specialist physician. Nippa v. Botsford 

Gen. Hosp., 668 N.W.2d 628, 630 (Mich. Ct. App. 2003). 

The Court of Appeals of Michigan rejected that claim based 

on principles of vicarious liability. Id. at 630-32. "[U]nder a 

vicarious-liability theory, a principal '"is only liable because 

the law creates a practical identity"' between the principal and 

its agents. The principal is held to have done what the agent has 

done." Id. at 631 (citation omitted). "Applying th[at] logic," 

the court ruled "that the standard of care applicable to the 

hospital is the same standard of care that is applicable to the 

physicians named in the complaint. For all practical purposes the 

hospital stands in the shoes of its agents (the doctors)." Ibid. 

Based on those principles of vicarious liability, the 

Michigan Court of Appeals ruled "that with regard to vicarious 

 

specialist, the active clinical practice of 

that specialty.

(ii) The instruction of students . . . in the 

same health profession in which the party 

against whom or on whose behalf the testimony 

is offered is licensed and, if that party is 

a specialist, an accredited . . . program in 

the same specialty.

[MCLS § 600.2169(1) (emphasis added).]
31 A-5439-15T1

liability, [the] medical-malpractice law applicable to a physician 

is also applicable to the physician's hospital. . . . All [its] 

procedural requirements are applicable to the hospital in the same 

manner and form as if the doctor were a named party to the lawsuit." 

Ibid. Thus, the court held "[a] plaintiff must submit with a 

medical-malpractice complaint against an institutional defendant 

an affidavit of merit from a physician who specializes or is boardcertified in the same specialty as that of the institutional 

defendant's agents involved in the alleged negligent conduct." 

Id. at 632. Echoing our case law, the court ruled that a 

"[p]laintiff cannot avoid the procedural requirements of the law 

by naming only the principal as a defendant in a medicalmalpractice lawsuit. . . . It would be absurd to have one set of 

legal rules for a hospital and another set of legal rules for its 

agents." Id. at 631.11

Our similar ruling based on the principles of vicarious 

liability likewise prevents plaintiffs from evading the 

 

11 The court of appeals also held that "the term 'party' under MCL 

600.2169(1)(a) encompasses the agents for whose alleged negligent 

acts the hospital may still be liable." 668 N.W.2d at 632. The 

dissenting opinion accused the majority of "rewriting MCL 600.2169 

to make it less 'illogical[.]'" Id. at 632 (quoting id. at 634 

(Whitbeck, C.J., dissenting)). Such a criticism does not apply 

here, as we base our ruling not on statutory construction of 

N.J.S.A. 2A:53A-41(a) but on the judicially-crafted principles of 

vicarious liability.
32 A-5439-15T1

requirements of N.J.S.A. 2A:53A-41(a) by suing only the health 

care facility and not the specialist physician even while claiming 

that the facility is liable based on the specialist physician's 

negligence. Our ruling also avoids having one set of legal rules 

for suits against specialist physicians and a different set for 

the health care facilities alleged to be vicariously liable, which 

would create uncertainty and complexity. Finally, our ruling also 

serves N.J.S.A. 2A:53A-41's goals of weeding out frivolous 

malpractice actions alleging negligence by specialist physicians, 

avoiding increases in their medical malpractice insurance rates, 

reducing their incentives to stop practicing or leave New Jersey, 

and thus ensure that New Jersey citizens have access to medical 

care by specialist physicians.

VI.

Finally, plaintiff contends that Dr. Bojko's AOM satisfies 

the requirements in N.J.S.A. 2A:53A-41(a). However, that 

"requires that plaintiff['s] medical expert must 'have specialized 

at the time of the occurrence that is the basis for the 

[malpractice] action in the same specialty or subspecialty' as 

defendant['s] physicians." Nicholas, 213 N.J. at 468.

Dr. Bojko was a pediatrician, and was board-certified in 

pediatrics and pediatric critical care medicine. It is undisputed 
33 A-5439-15T1

that plaintiff, who was sixty-five-years old, was not treated by 

a pediatrician when he went to defendant's emergency room (ER). 

The diagnosis of alcohol abuse appeared on forms listing Dr. 

Marcarious Mariyampillai as the attending and admitting physician, 

and on a form electronically signed by Dr. Vincent Retirado. 

Defendant's certification supporting its motion to dismiss 

asserted that "[a] review of the ER chart for Mr. Tetto indicates 

that the diagnosis in question was most likely made by the ER 

doctor, Dr. Retirado, who is an Emergency Medicine specialist, 

and/or the internist, Dr. Mariyampil[l]ai, who is an Internal 

Medicine specialist," and that each was board-certified in their 

specialty. Plaintiff does not contest defendant's certification. 

Plaintiff does not dispute that "[e]mergency medicine . . . 

[and] internal medicine . . . are all distinct specialty areas 

recognized by the American Board of Medical Specialties." Id. at

484. Nor does he dispute that his care and treatment in the ER 

for jaundice involved those specialties. See N.J.S.A. 2A:53A41(a). Thus, an expert providing the AOM must "have specialized 

at the time of the occurrence that is the basis for the action in 

the same specialty or subspecialty[.]" Ibid. 

Moreover, as Dr. Mariyampillai and Dr. Retirado were boardcertified in internal medicine and emergency medicine 

respectively, the expert providing the AOM must be "a physician 
34 A-5439-15T1

credentialed by a hospital to treat patients for the medical 

condition . . . that is the basis for the claim or action," or 

"board certified in the same specialty" and "have devoted the 

majority of his professional time to . . . the active clinical 

practice of that specialty" or "the instruction of students . . . 

in the same specialty." See N.J.S.A. 2A:53A-41(a)(1), (2). 

Plaintiff does not claim Dr. Bojko met any of those 

requirements. Instead, plaintiff argues that Dr. Bojko has 

extensive experience as a healthcare administrator which would 

allow him to opine that defendant was negligent in allowing the 

inclusion and maintain in the hospital records of "this false 

information." However, plaintiff cannot show that the diagnosis 

was false without an AOM and expert testimony from an expert with 

the same specialty as the specialist physician(s) who made that 

diagnosis and put that diagnosis in the hospital records.

Because plaintiff failed to provide such an AOM, he could not 

show those specialist physicians were negligent. For the same 

reason, he cannot show the health care facility where they worked 

was vicariously liable for those specialist physicians' 

"negligence." Under the principles of vicarious liability, it 

would be fundamentally unfair to allow him to bring a frivolous 

medical malpractice action against defendant, who cannot in 

fairness and justice be required to respond in damages for it. 
35 A-5439-15T1

Affirmed.