SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0027- 22 JESSICA WASHINGTON, Plaintiff-Appellant,

v. NEWARK BOARD OF EDUCATION, UNIVERSITY HOSPITAL, 1 and CITY OF NEWARK, Defendants-Respondent s.

____________________________

Argued October 3, 2023

– Decided December 19, 2023 Before Judges Sumners and Rose. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L -4225- 21. David E. Maran argued the cause for appellant (Mara n & Maran, PC, attorneys; David E. Maran, on the brie fs ). Sarah K. Delahant argued the cause for respondent Newark Board of Education (Methfessel & Werbel, attorneys; Sarah K. Delahant, on the brief).

1 Improperly pled as University Hospital Medical Resp onse. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 0027

- 22

PER CURIAM Plaintiff Jessica Washington , seek ing damages for the wrongful death of her eight-year-old daughter , filed a complaint alleging multiple negligent acts , some committed by her daughter's teacher and others by a school nurse. The Newark Board of Education (Board) moved to dismiss the complaint for failure to provide an affidavit of merit ( AOM ), per the Affidavit of Merit statute (AMS) N.J.S.A. 2A:53A-26 to - 29 , arguing Washington 's claim that her daughter was overmedicated by a school nurse, a licensed profess ional as a registered nurse,

re quired an AOM. In opposition, Washington submitted a sworn statement, claiming she was unable to provide an AOM because t he Board had not responded to her request for her daughter's school records. Washington also claimed an AOM was not required for her allegations against the teacher, who, unlike the school nurse, was not a licensed professional. The trial court enter ed an order dismiss ing Washington's complaint with prejudice. Washington appeals, arguing the trial court erred in dismissing her complaint against the Board because: (1) she was e xcused from provid ing an AOM re garding the school nurse's conduct due to the Board 's three-year delay
in provid ing her the re quested school records; and (2) her allegations re garding3 A- 0027

- 22

the teacher 's conduct di d not require an AOM. We affirm in part and revers e in part. We agree with the dismissal of Washington's claims attributed to the school nurse's conduct because she failed to provid e an AOM after the Board provided her the requested records. We disagree, h owever, with the dismissal of Washington's claim s against the Board arising from the teacher's conduc t because an AOM was not required for the teacher , a non -licensed professional under the A MS , and the Board could potentially be vicariously li able for the teacher's conduct.
I. Washington's daughter Karaji Samiyah Jones, who ha d asthma, died on May 21, 2019, after going into cardiac arrest while eating in Washington's car after school one hour after Washington picked her u p from elementary school and two hours class was dismissed. The next day, Washington went to school and sought information about Karaji 's death, including records of medical treatment she received from the school nurse. Washington was unsuccessful.
At Karaji's funeral on June 3 , according to Washington , another teacher told her the school nurse may have improperly medic ated Karaji on the day she4 A- 0027

- 22

died. Washington thereafter made several more unsuccessfu l in -person records requests. Almost two years after Karaji's death, Washington filed a self-represented complaint against the Board, University Hospital, a nd the City of Newark. Claims against the latter two defendants were dismi ssed. 2 The complaint alleged: Karaji Jones was in school 05

- 21

- 19 when negligence

[occurred]. I'm asking the school for information about what took place in school to lead to my daughter['s ] death. I was told from kids' parents that my daugh ter['s] teacher was [dragging] her in the hallway then left her alone in the [ mi dst] of her having an asthma attack. The complaint also alleged:

1. On 05

- 21

- 19 [,] Karaji S. Jones los[t] her life due to negligence on the behave [sic] of the school nurse and teacher. I was told by the teacher after her passin g said the nurse gave my daughter 3 to many treatment[s]. 2. Karaji[ 's ] twin sister also states that the teacher left my sickly daughter in the hallway crying after drag[g]ing her up and down the hallways. 3. I was not notified of anything that took place 05

- 21

- 19 . The nurse nor the teacher called to tell me my c hild

2 Although Washington named University Hospital and the City of Newark in her notice of appeal as respondents , they are not parties to this appeal. The City of Newark withdrew its motion to dismiss after Washington and the City signed a stipulation of dismissal. Washington did not opp ose University Hospital's motion to dismiss, which the trial court granted.5 A- 0027

- 22 was having any attacks. After school I picked my k ids up from school and still wasn't aware of what took place. The complaint did not name as defendants the school nurse , the teacher, or any fictitious defendants. When the Board answered the complaint, it demand ed an AOM per N.J.S.A. 2A:53A-27. Washington filed a motion for additional time to obtain
an AOM. At a Ferreira 3 conference, the court ordered Washington to provid e

an AOM by a date certain. Washington did not submit an AOM

. On March 21 , 2022, the Board

cross- mo ved to dismiss the complaint for failure to provide an AOM. Eight days later, Washington emailed the Board's attorney requ esting Karaji's school records. The trial court denied the Board 's cross-motion after Washington informed the court two nurses worked at Karaji's school on the day she die d. The court permitted discovery to determine if the n urse who treated Kara ji was

3 In Ferreira v. Rancocas Orthopedic Associates , our Supreme Court mandated a "case management conference be held within ninety days of the service of an answer in all malpractice actions," at which "the c ourt will address all discovery issues, including whether an [AOM] has been served on [the] defendant" and "whether [the defendant] has any objections to the adequacy of the affidavit." 178 N.J. 144, 154-55 (2003).6 A- 0027

- 22

a registered professional nurse, subject to the req uirements of the AMS. 4 The Board agreed with the court that an AOM was not nec essary to substantiate Washington's "claims against the teacher." On May 5, Washington provided the Board the necessary authorization to release Karaji's records, leading to her receipt of the records nineteen days later. The records included the school nurse's log s how ing Kara ji "was given no medication at the school on" the day she died. Washington provided these records to K ar aji 's pediatrician, who told Washington she could not pr ovide an AOM against the nurse

. The Board subsequently filed a second motion to di smiss the complaint with prejudice for failure to provide an AOM. In s upport, each school nurse certified she was "a [r]egistered [n]urse in good s tanding" when Karaji died. Washington sent a letter to the trial court stating the Board had denied her Karaji's school records and the records it had prov ided were incomplete and unusable for obtaining an AOM. As such, she relied upon N.J.S.A. 2A:53A- 28 by submitting "a sworn statement in lieu of affidavit" to be relieved of her obligation to provide an AOM.

4 As opposed to a licensed practical nurse

. See N.J.S.A. 45:11

- 23 (b). The A MS only includes "registered professional nurse[ s] ," rather than all nurses, as licensed persons. N.J.S.A. 2A:53A

- 26 (i).7 A- 0027

- 22

During oral argument, Washington questioned "why s he still [needed] to get an [AOM] when the teacher don't need [one]." The trial court granted the Board's motion. In its bench decision, the trial c ourt ruled Washington was required to provide an AOM because the nurse who al legedly treated her daughter was a registered nurse and therefore a license d person under the A MS

. Despite the court previously acknowledging an AOM w as not necessary for allegations based on the teacher's conduct, the court's order dismissed the entire complaint with prejudice.
II.
A. Before us, Washington, now represented by counsel, repeats her claim that she followed the AMS, by submitting "a sworn statem ent in lieu of affidavit" after the Board repeatedly denied her in-person rec ords requests. See N.J.S.A. 2A:53A -28. She concedes the Board gave her the requested records but argues she may still submit a sworn statement in lieu of a n AOM because the Board took over three years to fulfill her requests and, when it finally gave her "some records," it omitted many documents Washington expe cted to receive, such as report cards and medical records Washington gave th e school when her daughter was alive. We disagree.8 A- 0027

- 22

The A MS "imposes a special requirement upon plaintiffs bri nging lawsuits claiming malpractice or negligence by cert ain enumerated professionals." Shamrock Lacrosse, Inc. v. Klehr, H arrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 201 0). N.J.S.A. 2A:53A-27 specifically provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licen sed person in his profession or occupation, the plainti ff 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 licen sed person that there exists a reasonable probability t hat 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. This requirement allows courts to "identify and eli minate unmeritorious claims against licensed professionals and to permit merito rious claims to proceed efficiently through the litigation process." Meeha n v. Antonellis, 226 N.J. 216, 229 (2016) (citing Hubbard v. Reed, 168 N.J. 387, 3 95 (2001)). The Legislature, however, did not seek to "create a minefield of hypertechnicalities [that] doom innocent litigants posse ssing meritorious claims." Ferreira, 178 N.J. at 151 (citation omitted). Thus, N.J.S.A. 2A:53A-28 provides:9 A- 0027

- 22 An affidavit shall not be required . . . if the pla intiff provides a sworn statement in lieu of the affidavit setting forth that: the defendant ha s failed to provide plaintiff with medical records or other records or information having a substantial bearing on prepara tion of the affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of the medical records or other records or information requested, has been made by certified m ail or personal service; and at least 45 days have elap sed since the defendant received the request. Washington's complaint

— albeit un artfully

— pled two claims, each addressing negligence by a different person's misco nduct. A complaint can contain multiple claims because "the plaintiff alle ges that the harm was caused by two or more independent torts that occurred at d ifferent times and are distinct from one another." Glassman v. Friedel, 249 N.J. 1 99, 223 (2021). With respect to the school nurse, Washington claimed the school nurse overmedicated her daughter. Based on our de novo review of the trial court's order , Hoover v. Wetzler , 472 N.J. Super. 230, 235 (App. Div. 2022) , we agree with the court that Washington did not meet N.J.S.A. 2A:53A-28's sworn statement requirements with respect to the school nurse's alleged conduct. Washington 's claim that the Board took three years to fulfill her records reque sts is irrelevant. To submit a10 A- 0027

- 22

sworn statement, forty-five days must follow "a wri tten request" 5 for records , N.J.S.A. 2A:53A-28 (emphasis added), which excludes Washington's initial inperson requests. The phrase "along with, if necessary, a signed auth orization," id. , suggests Washington must also authorize release bef ore the waiting period begins , se e Hubbard, 168 N.J. at 396 (calling for a "practica l common[-]sense interpretation of the statute"). Accordingly, the forty-five-day waiting period began when Washington submitted the authorization f orm on May 5, 2022. Because the Board provided the records nineteen day s later, Washington's sworn statement that she could not provide an AOM b ecause the Board refused her records request was hollow. See Scaffidi v. Ho rvitz, 343 N.J. Super. 552, 554 (App. Div. 2001) (holding "because the plaintif f in this action received all the medical records required to prepare an [AOM] wi thin forty-five days after " submitting a proper records request , "the trial court correctly concluded that plaintiff was not entitled to relief from the requi rement of providing an [AOM] within the time allowed under N.J.S.A. 2A:53A

- 27 ")

. The doctor 's ina bility to

5 Although N.J.S.A. 2A:53A

- 28 requires "certified mail or personal service," there Washington 's email satisfied the statute because there is no di spute the Board received the request. See Aster ex rel. Garo falo v. Shoreline Beha v. Health, 346 N.J. Super. 536, 545 n.6 (App. Div. 200 2).11 A- 0027

- 22

provide an AOM after reviewing the school records Washington obta ined from the Board does not excuse Washington's failure to p rovide one. See id. at 559. N.J.S.A. 2A:53A-28 is not a loop hole to avoid providing an AOM for pl aintiffs who cannot not find affiants willing to attest to their claims' meritoriousness. S ee Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 ( 2001)

. The statute is reserved for plaintiffs who cannot o btain an AOM because "a recalcitrant defendant ha[s] failed to supply [the] required records." Davies v. Imbesi, 328 N.J. Super. 372, 376 (App. Div. 2000). Moreover, there is no indication there are additional unprovided records which would allow an AOM to support Washington's claims against the school n urse. Thus, the trial court's dismissal of claims related to the school nurse wer e properly dismissed with prejudice because Washington never provided an AOM substantiating the likelihood either school nurse "deviated from appli cable standards of care" for registered nurses. See McCormick v. State , 446 N.J. Super. 603, 607 (App. Div. 2016)

. B. As for the claims against the teacher, Wa shington alleged the teacher dragged Karaji "up and down the hallways" during an asthma attack. She did not need provide an AOM to support her allegations against the teacher, who is12 A- 0027

- 22

not a licensed person under the AMS. N.J.S.A. 2A:5 3A-26. She claims she is "entitled to discovery to find out if the teacher m ay have been negligent by failing to see to it that Karaji went to the nurse" for any treatment she needed on the day she died. During oral argument, the trial court and defense counsel differentiated Washington 's "claims against the teacher" from her allegations against the nurse. The court, however, did not add ress the allegations against the teacher when considering the Board's motion to dismiss. Because teachers are not licensed persons under the A MS , the court should not have dismissed the complaint's allegations pertaining to the teacher 's alleged conduct. Given the Board's motion was base d solely on Washington's failure to supply an AOM, there was no basis to dis miss the entirety of her complaint

–– particularly, allegations regarding the teacher. The Board conten ds we should affirm dismissal of the entire complaint with prejudice because: (1) the complaint does not name the teacher as a co defendant and "neither includes a negligent supervi sion count nor articulates a factual basis against [her];" (2 ) Washington cannot amend her complaint to add them because the two-year statute of limitations to sue the Board for wrongful death, N.J.S.A. 2A:14-2, was not tolled under the f ictitious party rule , R. 4:26

- 4; and (3) "discovery will not reveal a viable clai m against [the Board]." W e13 A- 0027

- 22

agree the fictitious party rule does not apply beca use the complaint names no fictitious defendants. As to Washington's claim against the Board based on the teacher's conduct, she apparently rel ies on a vicarious liability theory of negligence. T he complaint names the Board

— the employer

— but alleges negligent conduct by the teacher

— its employee. See Carter v. Reynolds, 175 N.J. 402, 40 9 (2003) (setting forth the test for vicarious liability as "(1) that [an employer-employee] relationship existed and (2) that the tortious act of the [employee] occurred within the scope of that employment"). Washington may sue an employer un der vicarious liability without naming the employee as a co -defendant. Walker v. Choudhary, 425 N.J. Super. 135, 148-49 (App. Div. 2 012)

. In reversing the trial court's order and allow ing Washington to pursue claims against the Board involving the teacher's conduct, we express no opinion

on whether the claims have sufficient merit to survive any future Board motion s

or will prevail should th is matter go to trial

. Affirmed as to claims arising from the school nurse 's conduct, reversed as to claims arising from the teacher's conduct. We do not retain jurisdiction.