NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A

- 3493

- 14T2

ANTHONY McCORMICK,

Plaintiff

- Appellant,

v.

STATE OF NEW JERSEY,

Defendant

- Respondent.

________________________________

Submitted August 9, 2016

– Decided

Before Judges Sabatino, Messano and Gilson.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Docket No. L

- 537

- 12.

Franzblau Dratch, P.C., attorneys for

appellant (Brian M. Dratch, on the brief s ).

Christopher S. Porrino, Attorney General,

attorney for respondent (Lisa A. Puglisi,

Assistant Attorney General, of counsel;

Gregory R. Bueno, Deputy Attorney General,

on the brief).

The opinion of the court was delivered by

SABATI N O, P.J.A.D.

This appeal poses a legal issue not previously decided in

case law under the Affidavit of Merit ("AOM") statute, N.J.S.A.

2A:53A

- 26 to

- 29. The matter arises in the context of a

plaintiff injured by the alleged negligence of licensed August 25, 2016 APPROVED FOR PUBLICATION

August 25, 2016

APPELLATE DIVISIONA

- 3493

- 14T2 2 professionals, who are claimed to have deviated from applicable

standards of care while providing services at the behest of a

public entity. The issue is whether the plaintiff can avoid the

need to obtain an AOM by suing only the public entity and not

the professionals. For the reasons that follow, we conclude

that such circumvention of the statute is impermissible and

affirm the trial court's determination that an AOM was required

in this case. We remand, however, for further proceedings to

explore more fully whether the sanction of dismissal of this

lawsuit is justified.

I.

The relevant circumstances are as follows. Since October

2008 defendant, the State of New Jersey, has contracted with

Rutgers University Correctional Health Care, formerly part of

the University of Medicine and Dentistry of New Jersey

("UMDNJ"), to provide State prison inmates with medical, dental,

and mental health services. I n that role, UMDNJ provided

medical staff and services to the inmates at South Woods State

Prison ("South Woods") during the time period relevant to this

case.

Plaintiff Anthony McCormick was a State prisoner serving a

twenty

- year sentence at South Woods. Plaintiff claims that in

June 2010, he began complaining to medical staff working atA

- 3493

- 14T2 3 South Woods of "severe pain in the front area of his head," for

which he was given Motrin. According to plaintiff, no

diagnostic tests were conducted, and he was left to "needlessly

suffer" for a month without additional medical care.

Plaintiff's symptoms persisted, and he was transferred on

June 29, 2010 to St. Francis Medical Center for diagnosis and

treatment. A CT scan was performed, and it was determined he

was suffering from a "[r]uptured right parietal brain abscess

with ventriculitis." Plaintiff consequently underwent brain

surgery at St. Francis on July 1, 2010. The abscess was

evacuated, and he was discharged back to South Woods on July 16,

2010 "in stable condition."

Records of plaintiff's follow

- up care performed in October

2010 at the prison's Extended Care Unit noted that he was

complaining of blurry vision and dizziness. Neurological

testing also revealed signs of cognitive impairment. A medical

report stated that plaintiff's "thought proce ss and behavior is

that of a [ six to seven ] year old child," and recited various

delusional statements he made durin g the course of the

examination. The report did not state whether the cognitive

issues existed prior to the detection of the brain abscess.

Plaintiff submitted a notice of tort claim to the State

Treasury's Bureau of Risk Management in October 2010. He thenA

- 3493

- 14T2 4 filed a two

- count complaint in the Law Division against the

State on June 20, 2012. No medical professionals or other

defendants were named. Plaintiff did not include any

fictitiously

- n amed parties pursuant to Rule 4:26

- 4

.

In count one of his complaint, plaintiff alleged the

medical staff at South Woods had "careless [ ly ]

, reckless [ ly ]

,

and negligen [ tly ]" failed to "properly treat [his] cerebral

condition, [causing] severe and permanent personal injuries[.]"

B ased upon the same factual allegations, he asserted in count

two violations of his rights under the federal and state

constitutions, as well as the New Jersey Civil Rights Act

("CRA"), N.J.S.A. 10:6

- 1 to

- 2. The complaint did not mention

UMDNJ or Rutgers University Correctional Health Care in its

factual assertions.

The lawsuit was briefly removed to federal court on the

State's motion. Plaintiff moved to remand the matter back to

state court, and the State cross

- moved for summary judgment.

The United States District Court granted the State's cross

motion in part, dismissing plaintiff's federal causes of action.

The remaining state law claims were remanded to the Law

Division.

The State then moved in the Law Division to dismiss the

complaint, arguing it had not been timely served with a noticeA

- 3493

- 14T2 5 of tort claim. The motion was denied. Around this time, it

appears that plaintiff voluntarily dismissed the remaining state

constitution al and CRA claims in count two.

The State again moved to dismiss count one, arguing that it

could not be vicariously liable for an injury allegedly caused

by employees of UMDNJ. This motion was also denied. The State

then answered the complaint and denied liability. It asserted

no third

- party claims against any persons or entities.

In December 2014, the State filed a third motion to

dismiss, arguing for the first time that plaintiff had failed to

serve it with an AOM pursuant to N.J.S.A. 2A:53A

- 27. Plaintiff

countered that he was not obligate d to provide an AOM because

the State, the sole defendant in this case, is not a "licensed

professional" or a licensed " health care facility" within the

terms or intent of the statute.

Judge Richard J. Geiger granted the State's motion on

January 23, 2015, dismissing the complaint with prejudice. In

his decision, Judge Geiger concluded that because the alleged

actions and inactions of the medical staff at South Woods

involve conduct by licensed professionals, plaintiff must

support his claims of negligence with a proper and timely AOM

from a qualified professional. Plaintiff moved for

reconsideration, which was denied.A

- 3493

- 14T2 6 This appeal followed. Plaintiff principally contends that

he was not obligated, as a matter of law, to file an AOM against

the State. Alternatively, he argues that, if this court finds

that such an obligation exists, he should be afforded an

opportunity on remand to procure an affidavit. He makes this

request because the State did not assert the need for an AOM in

its answer and also because the trial court did not conduct a

" Ferreira conference" 1 that could have alerted him sooner to the

need for an AOM.

II.

As the Supreme Court reiterated recently

, "[t]he stated

purpose of the AOM statute

. . . is laudatory

– to weed out

frivolous claims against licensed professionals early in the

litigation process." Meehan v. Antonellis

,

__ _ N.J. ___,

__

_

(2016) ( slip op. at 14 ) (citing Ferreira

, supra , 178 N.J. at

146) ; s ee also Buck v. Henry

, 207 N.J. 377, 383 (2011)

.

Pursuant to the mandate expressed in the statute, "[t]he

submission of an appropriate affidavit of merit is considered an

element of the claim." Meehan

, supra , slip op. at 14

- 15 (citing

Alan J. Cornblatt, P.A. v. Barow

, 153 N.J. 218, 244 (1998)

(holding that a plaintiff's failure to submit the required AOM

1 See Ferreira v. Rancocas Orthopedic Assocs. , 178 N.J. 144

(2003).A

- 3493

- 14T2 7 "goes to the heart of the cause of action as defined by the

Legislature")); see also N.J.S.A. 2A:53A

- 29. "Failure to submit

an appropriate affidavit ordinarily requires dismissal of the

complaint with prejudice." Meehan

, supra , slip op. at 15

(citing Cornblatt

, supra , 153 N.J. at 243).

Section 27 of t he AOM statute provides, in relevant part:

In any action for damages for personal

injuries

. . . 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 the 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

.

[ N.J.S.A. 2A:53A

- 27 (emphasis added).]

The statute also provides that a "licensed person," in the

context of malpractice claims against health care providers,

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

medicine or surgery"; "a podiatrist"; "a chiropractor"; "a

registered professional nurse"; "a health care facility" 2 ; "a

2 The AOM statute defines the term "health care facility"

as a "facility or institution whether public or private, engaged

principally in providing services for health maintenance

(continued)A

- 3493

- 14T2 8 physical therapist"; and "a registered pharmacist[.]" N.J.S.A.

2A:53A

- 26(f)

- ( m ). The medical staff at South Woods who examined

and treated plaintiff, alth ough not identified by name or by

occupation in his complaint, include such "licensed persons."

Plaintiff contends he was not required to serve an AOM in

this case because the State, as the sole named defendant, is

literally not a "licensed person" as defined in N.J.S.A. 2A:53A

26. Nor does the State meet the statute's definition of a

"health care facility" because it is not "engaged principally"

in health care. N.J.S.A. 26:2H

- 2(a). In addition, the State is

not a "professional corporation []

. . . entirely owned by

. . .

licensed professionals." Albrecht v. Corr. Med. Servs.

, 422

N.J. Super. 265, 273 (App. Div. 2011) (holding that if the

defendant in a malpractice case is a professional corporation,

then "a plaintiff is required to provide an AOM in order to

pursue litigation against the firm alone under responde a t

superior principles").

(continued)

organizations, diagnosis, or treatment of human disease, pain,

injury, deformity, or physical condition[.]" N.J.S.A. 26:2H

2(a). The definition expressly includes, but is not limited to,

hospitals, treatment centers, nursing homes,

clinics, "dispensar[ies]," "home health care agenc[ies]," and

"bioanalytical laborator[ies] . . . or central services

facilit[ies] serving one or more such institutions[.]" Ibid.A

- 3493

- 14T2 9 As the trial court aptly recognized, these arguments based

on a hyper

- literal reading of the AOM statute do not excuse

plaintiff from his failure to supply a proper affidavit to

support his claims that fundamentally are allocations of medical

negligence. He cannot avoid the important screening mechanism

of the AOM statute by suing only the public entity that procured

the services of the individual health care professionals who

worked at the prison.

We rejected a similar effort to get around the AOM

requirement in Shamrock Lacrosse, Inc. v. Klehr, Harrison,

Harvey, Branzburg & Ellers, LLP

, 416 N.J. Super. 1 ( App. Div.

2010). In that case, the plaintiff, a patent holder, alleged it

had been injured by various acts of legal malpractice by an

attorney who was handling its patent matters. The plaintiff

sued the two law firms that had successively employed the lawyer

whose negligent conduct was in question and who had since died.

Id. at 8

- 9. The plaintiff "presumably wishe[d] to invoke

principles of vicarious liability " to make the law firms liable

for the conduct of their former employee. Id. at 23.

We concluded in Shamrock Lacrosse that a law firm, even

though it did not itself hold a license to practice law, should

be treated as a "licensed person" under the AOM statute in cases

arising out of its associates ' allegedly deficient professionalA

- 3493

- 14T2 10 conduct. The defendant law firms were therefore entitled to an

AOM. Id. at 25, 27. We reasoned that the AOM requirement's

"focus is on the resulting harm, not on the business forms of

the named defendants" who have been sued. Id. at 23

. We

rejected the plaintiff's attempt to evade the requirements of an

AOM through its overly literal construction of the statute, one

that would undermine the public policies the Legislature sought

to achieve. Id. at 21

- 22 ; s ee also Albrecht

, supra , 422 N.J.

Super. at 272

- 74 ( reaffirming the policy analysis of Shamrock

Lacrosse ).

We apply here a similar analysis, focusing on the nature of

the underlying conduct of the medical personnel who allegedly

harmed the injured plaintiff. The State employs or utilizes

through contracts a host of licensed professionals who work in

its prisons, hospitals, mental health facilities, institutions,

transportation systems, and other operations. These

professionals include doctors, nurses, therapists, counselors,

engineers, and scores of other licensees encompassed within the

broad sweep of th e AOM statute. N.J.S.A. 2A:53A

- 26.

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 publicA

- 3493

- 14T2 11 entity is liable for that harm under agency principles, then an

AOM from an appropriate qualified person is necessary to support

the lawsuit. See Meehan

, supra , slip op. at 17

- 25 (explaining

who may be an appropriate affiant in cases respectively

involving Sections 27 and 41 of the AOM statute). 3 The AOM is

required, regardless of whether the plaintiff chooses to name

the negligent professionals as co

- defendants. A plaintiff

cannot circumvent the intent of the Legislature by suing only

the public entity.

In enforcing this obligation and thus carrying out the

legislative objectives of the AOM statute, we caution that an

affidavit will only be needed when the underlying harmful

conduct involves professional negligence, implicating the

standards of care within that profession. Hence, if a nurse

working in a State prison inattentively stumbles on a stairway

and knocks over an inmate, or carelessly spills his or her cup

of scalding hot coffee on a prisoner in t he hallway, or engages

in some other form of negligent conduct that does not implicate

professional standards of care, then no AOM is required. See

3 As the Court clarified in Meehan , if the professional who

caused the h arm is a physician, the more stringent

specialization and sub

- specialization requirements of the

Patients First Act, as set forth in Section 41, may constrict

the range of appropriate affiants. Ibid. ; s ee also Nicholas v.

Mynster , 213 N.J. 463 , 479

- 80 (20 13).A

- 3493

- 14T2 12 Hill Int'l

, Inc. v. Atl. City Bd. of Educ.

, 438 N.J. Super. 562,

590

- 91 (App. Div. 2014) (offering further examples of situations

in which no AOM would be required), appeal dismissed

, 224 N.J.

523 (2016); see also Murphy v. New Rd

. Constr

. , 378 N.J. Super.

238

, 242

- 43 (App. Div.), certif. denied

, 185 N.J. 391 (2005)

(holding that an AOM was not required to pursue negligence

claims against an architectural firm if the allegations did not

implicate the standards of care of that profession). Nor is an

AOM required if the plaintiff's claims against the public entity

are based upon matters of common knowledge. Couri v. Gardner

,

173 N.J. 328, 340 (2002); Triarsi v. BSC Grp. Servs., L.L.C.

,

422 N.J. Super. 104, 114, 116

- 17 (App. Div. 2011).

The need for a supporting affidavit and the qualifications

of a suitable affiant are fact

- sensitive, and depend on the

circumstances of each case. Meehan

, supra , slip op. at 29

- 30.

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 Section 26. We thus

extend the holding of Shamrock Lacrosse to contexts involving

public entity defendants and to claims of professional

negligence beyond legal malpractice.

We reject plaintiff's argument that he does not need an AOM

because he has sued the State on a theory of vicariousA

- 3493

- 14T2 13 liability. To be sure, under the Tort Claims Act, public

entities may be vicariously liable for certain acts of their

employees and agents, subject to certain immunities and

limitations. See N.J.S.A. 59:2

- 2 (generally providing for such

vicarious liability for the acts of public employees ); but see

N.J.S.A. 59:1

- 3 4 (excluding independent contractors from the

definition of a public employee); N.J.S.A. 59:2

- 10 (disallowing

vicarious liability where the public employee's actions or

inactions comprise a crime, actual fraud, or willful

misconduct). Nothing in t he Tort Claims Act require s that the

individuals whose negligent conduct creates the public entity's

liability be named as co

- defendants in the action.

Even so, our case law recognizes that an AOM is still

required when the plaintiff's claim of vicarious liability

hinges upon allegations of deviation from professional standards

4 As mentioned previously, the State argued that it could not be

vicariously liable for the acts of employees of an independent

contractor (i.e., UMDNJ) in its second motion to dismiss. The

State has not cross

- appealed the denial of that motion.

Gene rally, "[c]ontracting out prison medical care does not

relieve the State of its constitutional duty to provide adequate

medical treatment to those in its custody[.]" Scott

- Neal v. N.J.

Dep't of Corr. , 366 N.J. Super. 570, 575

- 76 (App. Div. 2004)

(quoting W est v. Atkins , 487 U.S. 42, 56, 108 S. Ct. 2250, 2259,

101 L. Ed. 2d 40, 54 (1988)). The "non

- delegable" nature of this

duty "is an exception to the general rule that one who hires an

independent contractor is not liable for the negligence of that

contractor." Ibid.A

- 3493

- 14T2 14 of care by licensed individuals who worked for the named

defendant. In Borough of Berlin v. Remington & Vernick

Engineers

, 337 N.J. Super. 590 (App. Div.), certif. denied

, 168

N.J. 294 (2001), we considered alleg ations of malpractice

against a professional engineering firm for failing to adhere to

"hydrogeologic guidelines in applying for a water allocation

permit" in the negligent siting of two wells. Id. at 596. The

plaintiff in Berlin obtained an AOM from a hydrogeologist, and

the defendant argued that the AOM was inadequate because it was

not from a professional engineer. Id. at 594. We concluded

that the hydrogeologist affiant was an appropriately licensed

person to submit the AOM against the engineering firm. Id. at

5 97

- 98. In that regard we noted that the " appropriate licensed

person" from whom an AOM should be sought is not always dictated

by the primary specialty of the professional corporation being

sued. Id. at 598

- 99. But an AOM was still necessary, albeit

supplied from a different professional than the defendant

demanded, in that vicarious liability context. Ibid. 5

5 The Supreme Court recently cited our analysis in Be rlin with

approval in Meehan

, supra , slip op. at 27

- 28.A

- 3493

- 14T2 15 For these reasons, we affirm the trial court's sound

determination that plaintiff was required to procure an AOM in

this case, in which he claims that he was negligently cared for

by the State prison's medical staff. We now turn to the

question of whether the trial court's sanction of dismissal of

plaintiff's lawsuit was appropriate.

Plaintiff contends that he was deprived of a fair

opportunity to obtain an AOM in this case. He notes that the

State did not assert the lack of an AOM as an affirmative

defense with its answer. More importantly, he emphasizes that

the trial court did not conduct the required Ferreira

conference, at which the need for an AOM could have been made

clear before the statutory deadline for serving an AOM expired.

In the Court's recent opinion in Meehan

, supra , it

underscored the importance of "a timely and effective" Ferreira

conference in assuring the proper and fair implementation of the

AOM statute. Meehan

, supra , slip op. at 34. As the Court

explained, " [ t ] he conference is designed to identify and resolve

issues regarding the [AOM] that has been served or is to be

served." Ibid. The Court noted that the conference "continues

to be a critical component of fulfilling the purpose of the AOM

statute." Id. at 33. It further observed that had such an

effective Ferreira conference been conducted, it "would probablyA

- 3493

- 14T2 16 have prevented [the] appeal." Ibid. However, the Court did not

go so far as to hold that the lack of an effective conference

required reversal, because it found the AOM that the plaintiff

procured from a prosthodontist sufficed to support his claims

against the defendant orthodontist who installed his sleep apnea

device. Id. at 31

- 33.

Given the Supreme Court's recent guidance in Meehan

, we

cannot conclude on the limited record before us that the lack of

a Ferreira conference in this case was inconsequential. On the

one hand, until we issued this opinion, there was no published

case that expressly held, as we do today, that an AOM may be

required when a tort plaintiff sues a public entity for

vicarious liability based on the professional negligence of its

staff. Hence, a Ferreira conference in this case might have

been inconclusive in the absence of such clear precedent. See,

e.g. , Hill Int'l

, supra , 438 N.J. Super. at 594

- 95 (excusing

timely compliance with the AOM requirement because existing case

law was unclear about whether an AOM from an engineer could

suffice against an architect); Shamrock Lacrosse

, supra , 416

N.J. Super. at 29 (likewise excusing the lack of t imely

compliance where prior decisional law from the federal courts

was split on whether an AOM against a law firm was required).A

- 3493

- 14T2 17 On the other hand, we are mindful that plaintiff's counsel

represents a different plaintiff in a companion unpublished

appeal we also decide today, James v. County of Middlesex

, No.

A

- 5424

- 14 (App. Div. August 25, 2016)

. In James

, the plaintiff

sued a public entity, a county that operated the jail where he

was housed and allegedly given inadequate medical care, as well

as a private contractor that provided medical services to the

county for its inmates. As in this case, the plaintiff in James

initially did not serve an AOM. However, he eventually procured

one within the statutory deadline, although defense counsel

challenged the affiant's credentials

.

The parallel circumstances suggest that plaintiff's counsel

in both this case and in James has been pursuing a strategy to

advance "test cases," in an attempt to avoid the AOM requirement

by suing public entities but not individual licensed

professionals who provided the medical care. We cannot tell if

that strategic supposition is true.

Nor is it clear that if a Ferreira conference had been held

here and if, hypothetically, the trial court directed that an

AOM was required, that Mr. McCormick (or those who may assist

him in making decisions, given his cognitive problems) would

have disregarded the court's admonition, refused to procure an

AOM, and taken his chances on appeal.A

- 3493

- 14T2 18 Because the record is presently inadequate for us to

resolve the sanction issue, we remand for further proceedings in

the trial court to explore the subject further, guided by the

Supreme Court's opinion in Meehan and our opinion in this case.

The court shall have discretion to conduct a plenary hearing on

the subject as it may see fit, after the parties have been

afforded the opportunity to submit further briefs and

certifications. The trial court shall determine, in light of

Meehan and the distinct procedural circumstances here, whether

it is equitable to deny plaintiff an opportunity to cure the

omission of an AOM within a reasonable time frame. 6

Lastly, we provide the following guidance for future

litigants. In cases such as this, where a plaintiff chooses to

sue a public enti ty for medical malpractice on a theory of

vicarious liability, the defendant entity is obligated to comply

with Rule 4:5

- 3 by including in its answer the identit ies and

specialt ies of the physicians, if any, involved in the

defendant's care, along with whe ther the treatment the defendant

received involved th ose specialt ies

. See Buck

, supra , 207 N.J.

6 That said, we reject plaintiff's specific argument that the

State is equitably estopped from insisting on any affidavit.

Knorr v. Smeal , 178 N.J. 169, 178 (2003). The assessment on

remand is instead confined to matters of timing and whether

plaintiff should be afforded additional time to produce the AOM

now that the governing law has been clarified.A

- 3493

- 14T2 19 at 396. The plaintiff must then obtain and serve appropriate

affidavits of merit within sixty days of the filing of the

answer

– as discussed by the Court in Meehan and required under

Sections 27 and 41 of th e AOM statute

– that correspond to the

qualifications of the individual professionals disclosed by the

defendant

. The trial court may grant an additional sixty days

to procure the AOM upon a finding of good cause. N.J.S.A.

2A:53A

- 27.

A Ferreira conference must be held within ninety days of

service of the answer, at which time the plaintiff's obligations

under the AOM statute may be clarified and the court and counsel

may address the adequacy of any AOM already obtained. The

plaintiff will have until the end of the 120

- day period

permissible under the AOM statute to correct any deficiencies.

Buck

, supra , 207 N.J. at 394. We underscore that the purpose of

the Ferreira conference is to identif y and resolve AOM

- related

problems that arise. Meehan

, supra , slip op. at 33. The

conference is not intended to be a substitute for reasonable

communication between opposing counsel to resolve AOM issues in

the first instance.

If the Ferreira conference fails to resolve a plaintiff's

need for more information f rom defendant to procure an

appropriate AOM, the plaintiff must comply with the statutoryA

- 3493

- 14T2 20 scheme by providing a "sworn statement in lieu of the [AOM]"

pursuant to N.J.S.A. 2A:53A

- 28, unt il the necessary disclosure

occurs.

Affirmed in part and remanded in part. We do not retain

jurisdiction.