                        NOT FOR PUBLICATION WITHOUT THE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.




                                       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 August 27, 2018

              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
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



                                           2                             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.

                                        3                                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."

                                 4                            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


                                5                          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:53A-

27.   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.


                                      6                                   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:53A-

26(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.

                                          7                                   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

                                      8                               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'").

                                          9                                  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).




                                           10                                   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:53A-

27).     "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.

                                     11                             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


                                       12                                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:53A-

41(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

                               13                           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."

                               14                             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


                                      15                                   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).


                                  16                             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).

                                    17                           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


                     18                          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


                                     19                              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:53A-

41 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.

                                    20                                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

                                      21                                   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

                                         22                                   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.

                                 23                           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

                                  24                              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 publicly-

funded 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.

                                      25                                 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.

                                        26                                   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

                                           27                              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:53A-

41(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

                                        28                               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


                                       29                                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).]

                                   30                            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 board-

certified 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    medical-

malpractice 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.

                                         31                                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



                                       32                                 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:53A-

41(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 board-

certified     in   internal    medicine     and    emergency       medicine

respectively, the expert providing the AOM must be "a physician

                                  33                                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.

                                        34                                       A-5439-15T1
Affirmed.




            35   A-5439-15T1
