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LEGAL REVIEW & COMMENTARY
Appellate Court Rules Affidavit of Merit Statute Does Not Cover LPNs
January 1, 2023 5 minutes read
News: On Nov. 9, 2022, the New Jersey Appellate Division addressed an issue of first impression: “Is a licensed practical nurse a ‘licensed person’ as defined in and covered by the affidavit of merit [AOM] statute?” The justices ruled the statute’s language did not include licensed practical nurses (LPNs) in the list of professionals governed thereunder. In affirming the trial court’s denial of defendant’s motion to dismiss, the appellate court noted “although plaintiff can pursue his claims without submitting an AOM, he must still demonstrate that [the defendant] was professionally negligent.”
Background: On Aug. 2, 2018, a woman underwent colon surgery. Two days later, she was discharged from the hospital. On the morning of Aug. 6, the patient’s husband called the physician’s office and spoke with an LPN. He told the LPN his wife was in pain and unable to eat. The LPN advised the husband the patient was “likely experiencing postoperative gas and that she should continue to take her medications, try to eat, drink liquids, and walk around.” A couple of hours later, the patient’s husband advised the LPN the medications had sedated his wife. The LPN said the patient might be overmedicated and should cut back on the medications and try to eat, drink, and walk around.
Later that day, the patient’s husband left numerous messages asking for a call back. The LPN later called and recommended the patient take Maalox or Pepto-Bismol and again eat, drink, and walk around. The next morning, the man found his wife unresponsive. She was taken to a hospital and pronounced dead.
The husband filed a medical malpractice action in July 2020. The LPN argued the plaintiff’s failure to provide an AOM was fatal to the action, and sought dismissal of the complaint. The plaintiff moved for a declaration he did not need an AOM. Following oral argument, the trial court issued two orders on Jan. 5, 2022, granting the plaintiff’s motion for a declaration and denying the defendant’s motion to dismiss. The defendant filed an interlocutory appeal.
In addressing the issue of whether an LPN is a “licensed person” covered by the AOM statute, the court noted a plaintiff alleging malpractice or negligence by a “licensed person” must first “file an ‘affidavit of an appropriate licensed person’ who can attest that there is a ‘reasonable probability’ that defendant’s conduct ‘fell outside acceptable professional or occupational standards or treatment practices.” (See NJSA 2A:53A-27.)
Section 26 of the AOM statute identifies 16 “licensed persons” and a healthcare facility as covered. (See NJSA 2A:53A-26.) Of those 16 “licensed persons” is a “registered professional nurse pursuant to P.L. 1947, c.262 (C.45:11-23 et seq.).” The defendant argued that as the AOM statute referenced the nursing licensure statute, which defines both “a registered professional nurse,” and “a licensed practical nurse,” that the legislature intended to include an LPN within the list of specified licensed professions in the AOM statute.
The appeals court rejected this interpretation, noting the AOM statute “expressly uses the term “registered professional nurse” and “the reference to the nursing statute plainly does not include a licensed practical nurse.” The court further noted a “plain reading of the AOM statute in conjunction with the nursing statute establishes several facts. First, the legislature expressly identified ‘a registered professional nurse’ as a ‘licensed person’ covered by the AOM statute but did not include licensed practical nurses in the list of those professions covered by the statute. Second, the legislature was clearly aware of the distinct and separate definitions it had given for ‘a registered professional nurse’ as compared to ‘a licensed practical nurse.’”
The appeals court further noted “although plaintiff can pursue his claims without submitting an AOM, he still must demonstrate that the licensed practical nurse was professionally negligent.”
What this means to you: One obvious lesson here is in the use of appeals. The appellate division found “[t]he AOM statute was enacted in 1995 as part of a tort reform package,” but ultimately concluded the tort reform did not extend to LPNs. While the appeal affirmed the trial court’s denial of defendant’s motion to dismiss, the opposite easily could have occurred whereby a more liberal panel could have interpreted the statute to include LPNs. In this matter, the plaintiff successfully defended the appeal and maintained the possibility of liability for the defendant LPN. However, when faced with an erroneous determination by a court, providers should carefully consult with counsel to determine the best manner of appealing and challenging such an erroneous decision.
Another principal issue in the case related to the LPN’s potential professional negligence has not been adjudicated. To guard against such actions, providers should take additional measures to avoid scenarios where instructions given over the phone end in such disastrous consequences. First, providers should take extreme care to provide express and explicit instructions to patients upon discharge, including consideration of circumstances and scenarios that would necessitate a return visit and/or an ED visit. Hospitals and providers should consider the level of expertise required for individuals who are monitoring calls from postoperative patients, particularly those with complex medical conditions and procedures. LPNs and licensed vocational nurses are not licensed to be independent practitioners. They may perform data-gathering and basic tasks only under the direct supervision of an RN or physician. They are not trained or licensed to assess the health status of a patient under any circumstances. The physicians who expected this LPN to dispense advice to patients via phone without the physician examining the patient, speaking with the patient, or otherwise being directly involved in the interaction, is not only negligently providing patient care, but also puts the nurse in an unfortunate position that jeopardizes her emotional and professional well-being.
Moreover, procedures should be in place for documenting the call thoroughly, with the provider questioning all possible symptoms and issues of the patient. The provider must not simply answer questions but must consider all relevant factors and ask any necessary questions. Risk managers may want to consider measures to avoid these scenarios, such as a chain of command for call-center nurses to contact regarding any questions or concerns that arise. Supervision by licensed physicians may be necessary for postoperative patients at risk for significant complications.
Finally, based on this decision, providers also should consider any unique state and local statutes and licensing regulations when determining the experience level of personnel assigned to handle over-the-phone patient contact. This is especially true since the prevalence of COVID-19 has led to more telehealth experiences.
REFERENCE
- Decided on Nov. 9, 2022, in the Superior Court of New Jersey, Appellate Division, Case Number A-1907-21.
One obvious lesson here is in the use of appeals. The appellate division found “[t]he AOM statute was enacted in 1995 as part of a tort reform package,” but ultimately concluded the tort reform did not extend to LPNs. While the appeal affirmed the trial court’s denial of defendant’s motion to dismiss, the opposite easily could have occurred whereby a more liberal panel could have interpreted the statute to include LPNs.
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