SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3499- 22 MARGARET KLEINMAN, ESQ., Plaintiff-Appellant,

v. HACKENSACK UNIVERSITY MEDICAL CENTER, MARIA GODEVAS, R.N., and ANGELA GONZALEZ, Defendants-Respondents.

___________________________

Submitted May 21, 2024

– Decided September 6, 2024 Before Judges Gooden Brown and Natali

. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 3724

- 21. John L. Weichsel, attorney for appellant. Connell Foley LLP, attorneys for respondents (Brian G. Steller, of counsel; Thomas D. Forrester, Jr., of c ounsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3499

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Plaintiff Margaret Kleinman, a licensed attorney, a ppeals from a June 23, 2023, Law Division order dismissing her complaint w ith prejudice against defendants Hackensack University Medical Center (HU MC), Maria Godevas, a HUMC nurse, and Angela Gonzales, a HUMC resident, for failing to file a timely affidavit of merit (AOM) as required by N.J. S.A. 2A:53A- 27

. For the reasons that follow, we reverse. A motion to dismiss for failure to provide an AOM i s equivalent to a motion to dismiss for failure to state a claim. N.J.S.A . 2A:53A-29. As a result, "we derive the facts from plaintiff's complaint" an d "recite them in the light most favorable to plaintiff." Nostrame v. Santiago, 213 N.J. 109, 113 (2013). On June 14, 2020, plaintiff's sister had plaintiff tra nsported to HUMC's emergency room for treatment of right hip pain that prevented her from ambulating. During her treatment at the hospital, information was erroneously entered into plaintiff's medical records that confu sed her with a family member with mental illness. Defendants recorded that plai ntiff had a "history of [s]chizophrenia or [b]ipolar disorder," was "not cu rrently on medications," and "need [ed a p]sychiatric evaluation." However, plaintiff "h a[d] no history of schizophrenia," nor had she ever "been diagnosed or treated for any psychiatric illness." Among other things, the error resulted in pla intiff being " involuntarily3 A- 3499

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committed" for twelve days and risked her being tra nsfer red to "disability inactive status" as an attorney , see Rule 1:20 -12(a). 1
On June 8, 2021, plaintiff filed a three-count complai nt against defendants alleging medical malpractice, defamation, and infli ction of emotional distress. Plaintiff sought compensatory and punitive damages , among other relief. Defendants filed a contesting answer, demanding an AOM. On March 31, 2023, the motion judge denied plaintiff's motion for an o rder waiving the AOM requirement under the common knowledge exception an d ruled that AOMs were required for the negligence asserted in her complai nt. The judge later denied plaintiff's motion for reconsideration. When plain tiff failed to produce the AOMs after the statutory time period and an extensi on expired, the judge dismissed the complaint with prejudice in a June 23 , 2023, order. In an oral decision on the record , the judge explained that "the [c]ourt [was] constrained to comply with [N.J.S.A. 2A:53A- 27 ]," which "clearly s[tates that] if an affidavit is not filed within the time period set forth by the statute, and/or any extensions, a matter sounding in medical malpractice or negligence

1 Rule 1:20 -12(a) provides that "[w]hen an attorney who is admitted to practice in this state has been judicially declared mentally incapacitated or involuntarily committed to a mental hospital, the Supreme Court, on proof of the fact, shall enter an order transferring the attorney to disabil ity inactive status."4 A- 3499

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cannot proceed forward as a matter of law." Further, the judge reasoned that although the complaint alleged intentional torts an d other causes of action, because there was "nothing before th[e c]ourt that i ndicate[d] that there was any . . . intentional act" on the part of defendants to defame plaintiff , "at its core," plaintiff was asserting a medical malpractice claim that could not proceed without an AOM. In that regard, the judge described plaintiff's arg uments as "simply . . . a back-door attempt" to avoid the AOM requirement. In this ensuing appeal, plaintiff argues the judge erred because an AOM was not required under the common knowledge doctrine where another person's mental illness was carelessly entered into plaintif f's medical record. Plaintiff also asserts that defamation and infliction of emot ional distress are "ordinary negligence" claims, not subject to the AOM statute. Plaintiff urges us to reverse the dismissal and apply common knowledge to the malpractice claim so that the entire case can proceed as an ordinary negligence c ase. In the alternative, if we affirm the dismissal of the malpractice count , plaintiff asserts the defamation and emotional distress counts should still proceed as ordinary negligence claims because, contrary to the judge's reasoning, intenti onal conduct was not required for either cause of action.5 A- 3499

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We review a trial court's ruling on a motion to dismi ss de novo, without deference to the judge's legal conclusions. Dimitr akopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). We must "'pass no judgment on the truth of the facts alleged' in t he complaint and must 'accept them as fact only for the purpose of reviewing the motion to dismiss.' " Mueller v. Kean Univ., 474 N.J. Super. 272, 283 (App. Div. 2022) (quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)). Accordingly, our inquiry is to be "undertaken with a generous and hospitable approach," affording plaintiff "every reasonable inference of fact. " Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). Likewise, we "review[] de novo the statutory interp retation issue of whether a cause of action is exempt from the [AOM] requirement," owing no deference to the trial court's opinion. Cowley v. Virtua Health Sys., 242 N.J. 1,
14 -15 (2020) (citing Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011)), rev'g, Cowley v. Virtua Health S ys., 456 N.J. Super. 278, 290 (App. Div. 2018). Under N.J.S.A. 2A:53A -29, if a plaintiff is required to provide an AOM but fails to do so, "it shall be dee med a failure to state a cause of action," and "requires a dismissal of the compla int with prejudice," Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 1 46 -47 (2003).6 A- 3499

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We first consider plaintiff's argument that the judge erred by rejecting her contention that an AOM is not required based on the common knowledge exception to N.J.S.A. 2A:53A- 27. N.J.S.A. 2A:53A- 27 requires a plaintiff alleging an "act of malpractice or negligence by a l icensed person in his [or her] profession or occupation" to provide an AOM to each defendant within the timeframe set forth in the statute. An AOM is "an affidavit of an appropriate licensed person that there exists a reasonable prob ability 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 p rofessional or occupational standards or treatment practices." N.J.S.A. 2A:53A -27. Physicians, nurses, and health care facilities, such as defendants, are "li censed person[s]" under the statute. N.J.S.A. 2A:53A-26(f), (i), (j). "The purpose of the [AOM] statute is to weed out fr ivolous complaints, not to create hidden pitfalls for meritorious ones. " Buck v. Henry, 207 N.J. 377, 383 (2011). In determining whether the AOM statute applies to a particular claim, courts consider three factors:

(1) whether the action is for "damages for personal injuries, wrongful death or property damage" (natur e 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 the7 A- 3499

- 22 complaint [] fell outside acceptable professional o r occupational standards or treatment practices" (standard of care). [Couri v. Gardner, 173 N.J. 328, 334 (2002) (altera tion in original) (quoting N.J.S.A. 2A:53A-27).] The common knowledge doctrine is an exception to the AOM requirement that arises when the claimed malpractice or profess ional negligence involves matters of common knowledge. Hubbard ex rel. Hubba rd v. Reed, 168 N.J. 387, 394 (2001). The exception applies only in the rare case where "the car elessness of the defendant is readily apparent to anyone of a verage intelligence," Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325 (1985), and when expert testimony "is not required to prove a professional defendant's negligence," Cowley, 242 N.J. at 8. It applies "where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinar y understanding and experience, to determine a defendant's negligence w ithout the benefit of the specialized knowledge of experts.'" Bender v. Walg reen E. Co., Inc., 399 N.J. Super. 584, 590 (App. Div. 2008) ( quoting Hubbard, 168 N.J. at 394) ("An [AOM] is not required in a case where the 'common k nowledge' doctrine applies" which is where "expert opinion is not requ ired to establish the duty or its breach").8 A- 3499

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Our courts have establishe d that the common knowledge exception is properly applied in cases "'involv[ing] obvious or ext reme error.' " Cowley, 242
N.J. at 11 (quoting Cowley, 456 N.J. Super. at 290) . For example, the exception has been applied where a dentist extracted the wron g tooth, Hubbard, 168 N.J. at 396, where a doctor pumped gas instead of fluid into a patient's uterus causing a fatal air embolism , Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 471 (1999), and where a pharmacist filled a prescriptio n " with a drug other than the

one prescribed," Bender, 399 N.J. Super. at 591. See Est. of Chin, 160 N.J. at 471 (collecting cases). Here, plaintiff claims the common knowledge doctrin e applies, rendering an AOM unnecessary, because "the error was one of i nputting" information, and an expert is not required to demonstrate that "putt ing someone else's mental illness on another patient's record" is negligent. We agree. In determining whether an AOM is required, "'courts must look to t he underlying factual allegations, and not how the claim is captioned in the complaint. . . . [I]t is the nature of the proof required that controls.'" Tr iarsi, 422 N.J. Super. at 114 (alteration and omission in original) (quoting Synd icate 1245 at Lloyd's v. Walnut Advisory Corp., 721 F. Supp. 2d 307, 315 (D. N.J. 2010)). "'Where the allegations do not require proof of a deviation fro m a professional standard of9 A- 3499

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care, no affidavit is required. Cases fitting this categorization are referred to a s 'common knowledge' cases.'" Ibid. (quoting Syndica te, 721 F. Supp. 2d at 315). In her first count, plaintiff alleged that defendan ts "inappropriately asked" her sister whether there was a family history of "p sychiatric issues." Plaintiff alleged that after her sister discussed a relative' s "history of schizophrenia and inability to live independently," defendants "breac hed their duty of care" by confusing her with her family member, and "wrongly writing [the family member's] history of schizophrenia on [p]laintiff's record." Plaintiff 's allegations do not require expert testimony to expl ain that the entry of inaccurate statements into a patient's medical record constitu tes negligence. Her claim does "not require proof of a deviation from a profession al standard of care," Syndicate, 721 F. Supp. 2d at 315, but "instead dep ends on proof of the parties' conduct, " Triarsi, 422 N.J. Super. at 117

. In Palanque v. Lambert-Woolley, 168 N.J. 398, 400-01, 406 (2001), our Supreme Court held that a doctor 's misreading of a patient's test results and subsequent misdiagnosis, which led to the performan ce of unnecessary surgery, constituted "careless acts [that] are quite obvious ." As such, the patient "need not present expert testimony at trial to establish the standard of care." Id. at 406

. Similarly, in Estate of Chin , where a gas line instead of a f luid line was10 A- 3499

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accidentally hooked up to the patient during a surg ical procedure , "causing . . . gas to be introduced into [the patient's] coronary arter ies and resulting in the air embolism that killed her," the Court applied the common knowledge exception because the case "'hinged primarily on the jury's d eterminations regarding who did what with the exhaust line, rather than with regard to p rofessional standards of care.'" 160 N.J. at 460, 471 (quoting Est. of C hin v. Saint Barnabas Med.
Ctr. , 312 N.J. Super. 81, 93 (App. Div. 1998) , aff'd, 160 N.J. at 459). Here, just as in Palanque and Estate of Chin, plain tiff's malpractice claim hinges on who was responsible for inputting inaccurate information into plaintiff's medical record, rather than with profes sional standards of medical care. Because plaintiff's medical malpractice clai m does not require expert testimony, we conclude the judge erred in finding t he AOM statute applied. Consequently , we reverse the dismissal of count one and remand fo r further proceedings consistent with this opinion. Turning to plaintiff's defamation claim, in count two, plaintiff alleged that defendants "acted negligently and with reckless dis regard for the truth in writing [her family member's] history of schizophrenia" on plaintiff's medical records, despite plaintiff and her family members' "repeated[ ] deni[al]" of any history of mental illness. According to plaintiff, defendants "republished the false,11 A- 3499

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defamatory statements" of her "uncontrolled" schizo phrenia and "declining" mental health to other doctors and third-party medi cal facilities. "In a general defamation case, a plaintiff claimin g to be damaged by a false statement will succeed if he [or she] shows t hat the speaker acted negligently in failing to ascertain the truth of th e statement." Senna v. Florimont, 196 N.J. 469, 474 (2008). We have explained:

A defamatory statement is one that is false and 1) injures another person's reputation; or 2) subjects the person to hatred, contempt or ridicule; or 3) cause s others to lose good will or confidence in that pers on. Romaine v. Kallinger, 109 N.J. 282, 289 (1988). A defamatory statement "tends so to harm the reputati on of another as to lower him in the estimation of the community or to deter third persons from associatin g or dealing with him." [Restatement (Second) of Torts § 559 (Am. L. Inst. 1977) ]

. "A plaintiff does not make a prima facie claim of defamation if the conte sted statement is essentially true." Hill v. Evening Ne ws Co., 314 N.J. Super. 545, 552 (App. Div. 1998). [Govito v. W. Jersey Health Sys., Inc., 332 N.J. Su per. 293, 305 (App. Div. 2000).] To prove defamation, a plaintiff must establish: "'(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.'" Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009) (quoting DeAngelis v. Hill, 180 N.J. 1, 13 (2004)). "The law of12 A- 3499

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defamation distinguishes between public figures and private persons." Hill , 314 N.J. Super. at 554. Our state, "like many other sta tes, maintains a fault standard of negligence for defamation cases involving privat e-figure defendants." W.J.A. v. D.A., 210 N.J. 229, 242 (2012). The negligence standard requires a plaintiff to pr ove "that the speaker acted negligently in failing to ascertain the truth of the statement" by a "preponderance of the evidence." Senna, 196 N.J. a t 474, 490 n.16. In contrast, where the subject speech "touch[es] on matters of p ublic concern and interest, " courts apply the "actual-malice standard." Durando v. Nutley Sun, 209 N.J. 235, 247 (2012) ; see also Senna, 196 N.J. at 474 (recognizing that a "plaintiff must prove actual malice" in cases where the speech invo lves "public officials, public figures, and the public interest"). Th at is so because "[s]peech that does not involve matters of public concern requires that gre ater weight be placed on an individual's int erest in an unimpaired reputation." Senna, 196 N.J. at 491. Here, plaintiff is not a public figure, and her me dical records are not a matter of public concern. As such, her defamation claim should be evaluated under a negligence standard. Because the judge dis miss ed plaintiff's defamation claim on the ground that she failed to plead facts showing defendants' intent to defame as well as the judge's misapprehension of th e applicability of the13 A- 3499

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common knowledge doctrine to the malpractice claim, we reverse the dismissal of count two and remand for further proceedings consistent with this opinion. Finally, we address plaintiff's infliction of emot ional distress claim. In count three, plaintiff alleged that as a result of the false statements in her medical records, she was "screened and involuntarily committ ed" to a medical center for twelve days for "psychological assessment" "on the ground that she was an imminent danger to others." Plaintiff asserted she "suffered shock," "horror," "humiliation," "emotional distress," and "damage to professional reputation," among other damages. To establish a claim of negligent infliction of emo tional distress, a plaintiff must prove that: "(1) defendant owed a d uty to plaintiff; (2) defendant breached that duty; (3) plaintiff suffered severe e motional distress; and (4) defendant's breach proximately caused plaintiff's e motional distress." Johnson v. City of Hoboken, 476 N.J. Super. 361, 375-76 (Ap p. Div. 2023). "Whether the defendant has a duty of care to the plaintiff d epends on whether it was foreseeable that the plaintiff would be seriously, mentally distressed." Dello Russo v. Nagel, 358 N.J. Super. 254, 269-70 (App. D iv. 2003); see also Johnson , 476 N.J. Super. at 376.14 A- 3499

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To establish a claim of intentional infliction of e motional distress, a plaintiff must prove that: "(1) defendant acted in tentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the conduct proximately caused plaintiff's emotional distress; and (4) the emotional distress was 'so severe that no reasonable [person] could be expected to endure it.'" Johnson , 476 N.J. Super. at 375 (alteration in original) ( quoting Ingraham v. Ortho-McNeil Pharm., 422 N.J. Super. 12, 20 (App. D iv. 2011)). A defendant acts intentionally when he or she intends "'both to do the act and to produce emotional distress.' " Ingraham, 422 N.J. Super. at 19 (quoting Buckley v

. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988) ). A defendant may also be liable when he or she "'acts recklessly in delib erate disregard of a high degree of probability that emotional distress will follow. ' " Ibid. (quoting Buckley, 111 N.J. at 366). A Rule 4:6 -2(e) dismissal of a complaint for "'failure to sta te a claim upon which relief can be granted'" tests "the legal suff iciency of the facts alleged on the face of the complaint." Printing Mart-Morristo wn, 116 N.J. at 74 5-46 (quoting R. 4:6 -2(e))

. On a motion to dismiss, a plaintiff is not require d to prove the case, but need only "'make allegations which, i f proven, would constitute a valid cause of action.'" Kieffer v. High Point Ins . Co., 422 N.J. Super. 38, 4315 A- 3499

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(App. Div. 2011) (quoting Leon v. Rite Aid Corp., 3 40 N.J. Super. 462, 472 (App. Div. 2001)). A reviewing court must "'search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunit y being given to amend if necessary.'" Printing Mart-Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem 'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). A motion to dismiss should only be granted in "'the r arest of instances ,' " where "'even a generous reading of the allegations does n ot reveal a legal basis for recovery.'" Kieffer, 422 N.J. Super. at 43 (first q uoting Printing MartMorristown, 116 N.J. at 772; and then quoting Edwar ds v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003) ). Here, the judge determined plaintiff failed to state a claim upon which relief c ould be granted because "there [was] simply not a cause of action that c[ould] be gleaned . . . or that c[ould] move forwa rd as a matter of law." We disagree. A cause of action for infliction of emot ional distress may be inferred from the factual allegations in plaintiff's complai nt. Printing Mart-Morristown , 116 N.J. at 746. Plaintiff has pled facts that adequately establish the elements of an intentional or negligent infliction of emotio nal distress claim.16 A- 3499

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Undoubtedly, erroneous documentation of schizophrenia in plaint iff's medical records that result ed in a twelve-day involuntary commitment c ould give rise to a cause of action for infliction of emotional distr ess, whether negligent or intentional. At the very least, if necessary, plai ntiff should have been afforded an opportunity to amend the complaint either by cla rifying or amplifying the allegations. See ibid. Accordingly, we reverse the dismissal of count thre e and remand for further proceedings consistent with this opinion. Nothing in our opinion should be construed as an expression of our views regarding t he merits of the claims. Reversed and remanded. We do not retain jurisdicti on.