                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

              Linda Cowley v. Virtua Health System (A-47-18) (081891)

Argued November 19, 2019 -- Decided May 4, 2020

FERNANDEZ-VINA, J., writing for the Court.

       The Court considers whether, in this case, the “common knowledge” exception
relieves plaintiffs of the obligation to serve an affidavit of merit as required by the
Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29.

       Plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital (Virtua). A
physician entered an order directing nursing staff to insert a Nasogastric Tube (NG
Tube), a tube that passes through the nose into the stomach to deliver medicine, liquids,
and liquid food to a patient. According to Virtua’s records, Cowley removed her NG
Tube overnight and refused replacement. Cowley and her husband sued Virtua and
others, alleging defendants did not comply with the written order to insert an NG Tube
and that her condition deteriorated while the NG Tube was dislodged.

        Defendants filed a demand for an affidavit of merit. Plaintiffs argued their duty to
provide an affidavit of merit was relieved because this matter was one of “common
knowledge.” The trial court dismissed plaintiffs’ complaint with prejudice, determining
that the common knowledge exception did not apply and an affidavit of merit was
required. The Appellate Division reversed. 456 N.J. Super. 278, 292 (App. Div. 2018).
The appellate court found the common knowledge exception applicable to this case,
reasoning that “common sense dictates that some action should have been taken when the
nurses were confronted with the sudden termination of Linda’s medical treatment that
was required by the physician charged with her care.” Id. at 291-92. The Court granted
certification. 236 N.J. 363 (2019).

HELD: Here, where a patient removed the tube herself and refused replacement,
important questions about the procedures, protocols, and duties of a licensed nurse in
these circumstances must be explained in order to establish a deviation in the standard of
care. In addition, important considerations about patient autonomy complicate the
standard-of-care analysis. A jury could not reach a determination as to a nurse’s
responsibility under these circumstances without the benefit of expert opinion as to the
appropriate balance between patient autonomy and prescribed treatment. An affidavit of
merit was therefore required.


                                             1
1. The Affidavit of Merit Statute requires that, in malpractice actions, plaintiffs “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. The
statute’s primary purpose is to require plaintiffs in malpractice cases to make a threshold
showing that their claim is meritorious, in order that meritless lawsuits readily can be
identified at an early stage of litigation. Failure to provide an affidavit or its legal
equivalent is “deemed a failure to state a cause of action,” N.J.S.A. 2A:53A-29, requiring
dismissal with prejudice unless an equitable exception applies. (pp. 13-15)

2. One such equitable exception is the common knowledge exception, which applies
only in exceptionally rare cases in which an expert is not needed to demonstrate that a
defendant professional breached some duty of care because the carelessness of the
defendant is readily apparent to anyone of average intelligence. The Court stresses that
the existence of the exception alone does not mean that plaintiffs in malpractice cases
should not provide affidavits, even when they do not intend to rely on expert testimony at
trial. And plaintiffs who do not file affidavits of merit and are unsuccessful in persuading
a court that an expert is not necessary run the risk of having their cases dismissed for
failure to state a cause of action under N.J.S.A. 2A:53A-29. The exception is properly
invoked only when jurors are competent to assess simple negligence occurring without
expert testimony to establish the standard of ordinary care. (pp. 15-20)

3. A competent adult has the right to decline to have any medical treatment initiated or
continued. The right to make decisions concerning one’s body is protected by statute and
by the federal constitutional right of privacy. (pp. 20-21)

4. Here, plaintiffs did not satisfy the common knowledge exception and therefore were
not relieved of their obligation to provide an affidavit of merit. This is not simply a case
of failure to follow a physician’s order. The issue for the jury is not whether a nurse may
ignore a physician’s order, but rather what steps are required of a nurse when a patient
refuses reinsertion of an NG Tube after its removal. Included in that assessment will be
considerations about a patient’s exercise of a right to refuse treatment. And resolution of
that issue -- determination of what action, if any, should be taken under circumstances
like those presented here -- ultimately requires expert opinion as to the appropriate
standard of care, as well as the submission of an affidavit of merit. Here, plaintiffs
neither submitted an affidavit of merit nor satisfied an exception to that requirement, and
N.J.S.A. 2A:53A-29 requires dismissal with prejudice for noncompliance. (pp. 21-24)

       REVERSED. The complaint is DISMISSED WITH PREJUDICE.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.


                                             2
       SUPREME COURT OF NEW JERSEY
             A-47 September Term 2018
                       081891


                 Linda Cowley and
                Robert Cowley, w/h,

               Plaintiffs-Respondents,

                          v.

               Virtua Health System,
              Virtua Voorhees Hospital,
               Robert Gibbons, R.N.,
              and Helene Curran, R.N.,

               Defendants-Appellants.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
       456 N.J. Super. 278 (App. Div. 2018).

     Argued                       Decided
 November 19, 2019               May 4, 2020


Mary Kay Wysocki argued the cause for appellants
(Parker McCay, attorneys; Mary Kay Wysocki and
Carolyn R. Sleeper, of counsel, and Kathryn A.
Somerset, on the briefs).

Randi S. Greenberg argued the cause for respondents
(Sacchetta & Baldino, attorneys; Thomas F. Sacchetta,
on the brief).




                          1
            Eric S. Poe argued the cause for amicus curiae New
            Jersey Physicians United Reciprocal Exchange (Eric
            S. Poe, of counsel and on the brief, and Abbey True
            Harris, on the brief).

            Anthony Argiropoulos argued the cause for amicus
            curiae New Jersey Doctor-Patient Alliance (Epstein
            Becker & Green, attorneys; Anthony Argiropoulos and
            William Gibson, of counsel and on the brief).

            Abbott S. Brown argued the cause for amicus curiae
            New Jersey Association for Justice (Lomurro,
            Munson, Comer, Brown & Schottland, attorneys;
            Abbott S. Brown, Jonathan H. Lomurro, and Christina
            Vassiliou Harvey, of counsel and on the brief).


      JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.


      We must now decide whether the “common knowledge” exception

relieves plaintiffs of the obligation to serve an affidavit of merit as required by

the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. In support of

plaintiffs’ medical malpractice claim, they allege defendants failed to take

action after a food- and medicine-administering tube, properly inserted in

accordance with a physician’s order, was dislodged.

      The Affidavit of Merit Statute requires plaintiffs alleging malpractice

against a licensed professional to include an affidavit from a medical expert in

their filing. The affidavit must provide that there exists a reasonable

probability the standard of care exercised in the alleged malpractice fell


                                         2
outside the acceptable professional or occupational standards. This Court has

fashioned an exception to that requirement for cases in which the alleged

conduct or failure to act, if accepted as true, would be readily recognizable, by

a person of average intelligence, as a failure to exercise the appropriate

standard of care. The issue here, is whether the failure to act when a patient

dislodges her tube and refuses its reinsertion would fall within the jury’s

common knowledge as a departure from the acceptable standards.

      The trial court reasoned that a jury could not use common knowledge to

determine what standard of care a nurse should use when a tube is

intentionally dislodged by the patient. The Appellate Division reversed,

concluding such a determination was not necessary. The Appellate Division

found a jury could use common knowledge to determine a nurse should take

some action when a tube is dislodged and that no affidavit of merit was needed

in this case.

      We disagree with the Appellate Division’s findings. The common

knowledge exception to the Affidavit of Merit Statute applies only when

expert testimony is not required to prove a professional defendant’s

negligence. Thus, in the limited cases where a person of reasonable

intelligence can use common knowledge to determine that there was a

deviation from a standard of care, an expert is no more qualified to attest to the

                                        3
merit of a plaintiff’s malpractice practice claim than a non-expert. This is not

one of those cases. Here, where a patient removed the tube herself and refused

replacement, important questions about the procedures, protocols, and duties

of a licensed nurse in these circumstances must be explained in order to

establish a deviation in the standard of care. In addition, important

considerations about patient autonomy complicate the standard-of-care

analysis. A jury could not reach a determination as to a nurse’s responsibility

under these circumstances without the benefit of expert opinion as to the

appropriate balance between patient autonomy and prescribed treatment. An

affidavit of merit was therefore required, and we accordingly reverse the

judgment of the Appellate Division.

                                        I.

                                       A.

      We begin by summarizing the pertinent facts and procedural history.

Plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital (Virtua) on

October 17, 2014, with abdominal discomfort. After undergoing testing,

Cowley was diagnosed with multiple gallstones and a small bowel obstruction,

among other complications, leading to a corrective procedure. Subsequently,

one of Cowley’s physicians entered an order directing nursing staff to insert a

Nasogastric Tube (NG Tube), a tube that passes through the nose into the

                                        4
stomach to deliver medicine, liquids, and liquid food to a patient. The tube

was inserted on October 18, 2014.

      According to Virtua’s records, Cowley removed her NG Tube and IV

lines overnight and refused replacement. Cowley alleges the nurses on staff,

including defendants Robert Gribbon, R.N., and Helene Curran, R.N., did not

reinsert the tube. Cowley subsequently underwent a series of procedures and ,

by the time she was discharged from the hospital at her request, she was

diagnosed with several medical conditions. Cowley claims the post-operative

complications she suffered resulted from the defendants’ failure to reinsert the

NG Tube.

                                        B.

      Linda Cowley and her husband Robert, sued Virtua, Virtua Health

System, Nurse Gribbon, and Nurse Curran in Superior Court, Camden County ,

alleging defendants did not comply with the written order to insert an NG

Tube. The Cowleys further alleged defendants did not properly treat Linda,

leading her to aspirate and her condition to deteriorate while the NG Tube was

dislodged.

      Defendants filed an answer, which included a demand for an affidavit of

merit pursuant to the Affidavit of Merit Statute. Plaintiffs subsequently failed

to file the affidavit by the requisite deadline, and defendants filed a motion to

                                        5
dismiss based upon plaintiffs’ failure to serve an affidavit. Plaintiffs then

submitted their attorney’s certification in opposition to the motion to dismiss,

arguing their duty to provide an affidavit of merit was relieved because this

matter was one of “common knowledge.”

      Following oral argument, the trial court granted defendants’ motion to

dismiss with prejudice. The court ruled that the common knowledge exception

did not apply and an affidavit of merit was required. The trial court held that a

jury would not be called upon to determine whether the NG Tube was initially

inserted, but to determine the standard of care that governed the nurses’

conduct after the NG Tube is dislodged. The trial court stated that a jury

cannot determine the standard of care in such a case without knowing what a

nurse should do when an NG Tube inserted pursuant to an order is

subsequently removed by the patient and the patient refuses reinsertion.

According to the judge, the facts of this case changed the matter from one

where a jury with ordinary knowledge and experience could make a

determination, to one where a jury requires expert testimony to determine the

standard of care. The trial court rejected plaintiffs’ argument that once the NG

Tube was removed, the initial order to insert the tube was still in place,

maintaining a continuing obligation to reinsert the tube.




                                        6
      The Appellate Division reversed. Cowley v. Virtua Health Sys., 456

N.J. Super. 278, 292 (App. Div. 2018). The Appellate Division first noted that

the purpose behind the Affidavit of Merit Statute is “to weed out frivolous

complaints, not to create hidden pitfalls for meritorious ones.” Id. at 288

(quoting Buck v. Henry, 207 N.J. 377, 383 (2011)). The court explained that

the Affidavit of Merit Statute requires a plaintiff to provide an expert’s

affidavit stating the action has merit but is generally not concerned with the

plaintiff’s ability to prove the allegation in the complaint. Ibid. As such, the

Appellate Division held the Legislature intended the statute to readily identify

meritless lawsuits at an early stage of litigation. Ibid.

      The Appellate Division observed, however, that the affidavit of merit

requirement “is not absolute.” Id. at 289. The court explained that in

situations where the jurors’ knowledge as laypersons suffices to enable them to

assess a defendant’s negligence without the benefit of expert testimony, an

affidavit of merit against a licensed professional is not required. Ibid. The

court noted that the common knowledge exception is applied narrowly to cases

that “involve obvious or extreme error,” id. at 289-90, and explained that

plaintiffs’ claim in this case presents the circumstance “of an alleged obvious

act of omission, rather than an affirmative action that clearly bespoke

negligence,” id. at 291.

                                         7
      Noting that federal courts have applied the common knowledge

exception in cases turning on alleged omissions, the Appellate Division found

the exception applicable to this case. Id. at 291-92. Ultimately, the Appellate

Division concluded a layperson could determine that plaintiffs’ claim based on

the nurses’ lack of action when the NG Tube was dislodged -- including their

failure to call the physician for instructions -- has merit in light of the fact that

the physician had ordered it remain inserted. Id. at 292. The court reasoned

“common sense dictates that some action should have been taken when the

nurses were confronted with the sudden termination of Linda’s medical

treatment that was required by the physician charged with her care.” Ibid.

      However, the Appellate Division stressed that its conclusion did not

mean that plaintiffs’ claim would automatically survive a motion for summary

judgment or challenge during trial. Ibid. The court explained that the holding

established only that at the early stage of the case, “there is no need to ‘weed

out’ plaintiffs’ claim.” Ibid.

      We granted defendants’ petition for certification. 236 N.J. 363 (2019).

We also granted the motions of the New Jersey Doctor-Patient Alliance

(NJDPA), the New Jersey Physicians United Reciprocal Exchange (PURE),

and the New Jersey Association for Justice (NJAJ) to participate as amici

curiae.

                                          8
                                        II.

                                        A.

      Defendants Virtua, Virtua Health System, Nurse Gribbon, and Nurse

Curran argue this is a complex medical malpractice case. Defendants contend

an NG Tube was successfully inserted pursuant to a physician’s order, after

which Linda Cowley chose to remove the tube and refuse replacement.

Defendants frame the issue as whether the nurses took adequate action in

response to a patient’s refusal of reinsertion of a dislodged NG Tube, which

they argue is not a matter of “common knowledge” within the purview of a lay

juror’s average intelligence and understanding.

      Defendants also assert the trial court correctly rejected plaintiffs’

oversimplification of the issues, because a patient’s refusal of medical

treatment raises serious questions about a provider’s responsibility for and

manner of care. They argue the Appellate Division oversimplified the severity

of the medical malpractice matter, which requires expert opinion on the

standard of care initiated by an affidavit of merit. Defendants submit that

contrary to the Appellate Division’s holding, the nurses’ conduct at issue was

not merely a “negligent omission” because the NG Tube was not reinserted

after Linda Cowley refused that procedure.




                                        9
      Defendants further assert the misapplication of the law by the Appellate

Division resulted in a disregard for plaintiffs’ statutory obligation to provide

an affidavit of merit and, moreover, ignored important public policy requiring

respect for patient autonomy.

                                        B.

      Amicus curiae NJDPA, aligned with defendants’ position, argues that

the Appellate Division’s decision should be reversed, and plaintiffs’ complaint

should be dismissed for failure to comply with the Affidavit of Merit Statute.

NJDPA submits the Appellate Division misapplied the very narrow common

knowledge exception to this case. NJDPA contends that unless the Appellate

Division’s decision is reversed, it will negatively alter the medical malpractice

landscape. NJDPA asserts that the standard of care of a nurse treating a

patient who removes an NG Tube, and refuses reinsertion, is not within the

average understanding of a juror and thus warranted an affidavit of merit.

                                        C.

      Amicus curiae PURE, also aligned with defendants’ position, contends

that the Appellate Division’s decision should be reversed. Addressing the

issue from an insurance provider’s perspective, PURE argues that expanding

the common knowledge exception creates uncertainty in the medical

malpractice insurance industry that will negatively impact insurance

                                        10
companies, physicians, and patients alike. PURE argues that if medical

malpractice claims are scrutinized by judges rather than by medical

professionals via an affidavit of merit, the predictability of insurance claims

will decrease, which will increase expenses and rates.

                                        D.

      Plaintiffs Linda and Robert Cowley counter that this case does not

implicate public policy regarding a patient’s autonomy. Rather, plaintiffs

argue the issue is whether defendants’ failure to act upon discovery of the

dislodged NG Tube falls within the common knowledge exception to the

affidavit of merit requirement. Plaintiffs argue defendants overlook the

significance of the fact that the order for the NG Tube remained in effect after

it was dislodged, and a jury does not need expert testimony to comprehend the

significance of a physician’s order. Further, plaintiffs argue the fact that

defendants did nothing after learning the order was not followed is within the

scope of the lay juror’s common knowledge; the reasons for noncompliance

with the order are irrelevant.

                                        E.

      In support of plaintiffs’ position, NJAJ asserts the Appellate Division

properly found the common knowledge exception applied because the

complaint alleged a nurse violated a doctor’s order to maintain placement of an

                                        11
NG Tube. NJAJ also submits plaintiffs’ claim should not be subject to

dismissal with prejudice on affidavit of merit grounds without the opportunity

to resolve the issue at a Ferreira conference.1 In sum, NJAJ asserts this Court

should affirm the Appellate Division, establish that a nurse’s failure to follow

a doctor’s order is at least prima facie evidence of negligence sufficient to

allow the case to proceed, and ultimately instruct trial courts of the obligation

to resolve such issues at a Ferreira conference.2

                                       III.

                                        A.

       Our Court reviews de novo the statutory interpretation issue of whether a

cause of action is exempt from the affidavit of merit requirement. See Triarsi

v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011). We

therefore owe no deference to the trial court or Appellate Division if they have

incorrectly interpreted the law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13

(2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).




1
    Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
2
  This argument fails to recognize that the trial court determined an affidavit
of merit was required and none was provided in response. There was no issue
of sufficiency to be addressed at a Ferreira conference.
                                       12
      The overriding goal when engaging in statutory construction is “‘to

determine the Legislature’s intent.’ The first step in determining the

Legislature’s intent is to look at the plain language of the statute.” Hubbard v.

Reed, 168 N.J. 387, 392 (2001) (quoting Dep’t of Law & Pub. Safety v.

Gonzalez, 142 N.J. 618, 627 (1995)). Because our main purpose in reviewing

statutes is to give life to the plain language, we will refer to extrinsic sources

to determine legislative intent “[o]nly if the words of the enactment are

shrouded in ambiguity.” Zabilowicz, 200 N.J. at 513. “[W]hen a ‘literal

interpretation of individual statutory terms or provisions’ would lead to results

‘inconsistent with the overall purpose of the statute,’ that interpretation should

be rejected.” Hubbard, 168 N.J. at 392-93 (quoting Cornblatt v. Barow, 153

N.J. 218, 242 (1998)).

                                         B.

      The New Jersey Affidavit of Merit Statute, set forth at N.J.S.A. 2A:53A-

26 to -29, requires in part that,

             [i]n 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
                                         13
            complaint, fell outside acceptable professional or
            occupational standards or treatment practices. . . .

            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
            [N.J.S.A. 2A:53A-41].

            [N.J.S.A. 2A:53A-27.]

The Affidavit of Merit Statute’s primary purpose “is ‘to require plaintiffs in

malpractice cases to make a threshold showing that their claim is meritorious,

in order that meritless lawsuits readily [can] be identified at an early stage of

litigation.’” Cornblatt, 153 N.J. at 242 (quoting In re Petition of Hall, 147 N.J.

379, 391 (1997)). As such, in enacting the statute, the Legislature was not

concerned with a plaintiff’s ability to prove the allegation contained in his or

her complaint, but rather “with whether there is some objective threshold merit

to the allegations.” Hubbard, 168 N.J. at 394 (quoting Hubbard v. Reed, 331

N.J. Super. 283, 292-93 (App. Div. 2000)).

      To demonstrate the threshold of merit, the Affidavit of Merit Statute

“requires plaintiffs to provide an expert opinion, given under oath, that a duty

of care existed and that the defendant breached that duty.” Ibid. The Affidavit

of Merit Statute applies only to the duty of care and breach of duty of care

elements of a negligence claim, not to causation or damages; an affidavit need

only prove that “the care, skill or knowledge . . . fell outside acceptable
                                        14
professional or occupational standards or treatment practices.” Id. at 390

(quoting N.J.S.A. 2A:53A-27).

      The failure to provide an affidavit or its legal equivalent is “deemed a

failure to state a cause of action,” N.J.S.A. 2A:53A-29, and this Court has

“construed the statute to require dismissal with prejudice for noncompliance ,”

A.T. v. Cohen, 231 N.J. 337, 346 (2017) (citing Cornblatt, 153 N.J. at 247).

However, this Court also recognizes equitable exceptions to the statutory

requirements “to ‘temper the draconian results of an inflexible application of

the statute,’” and has crafted “mechanisms to draw attention to and facilitate

satisfaction of this statutory obligation and its goals.” Ibid. (quoting Ferreira,

178 N.J. at 151). One such mechanism is the common knowledge exception.

                                        C.

      On its face, the Affidavit of Merit Statute applies to any action involving

professional malpractice, and no exception is made for common knowledge

cases. Id. at 393. In the exceptionally rare cases in which the common

knowledge exception applies, however, an expert is not needed to demonstrate

that a defendant professional breached some duty of care “where the

carelessness of the defendant is readily apparent to anyone of average

intelligence.” Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).




                                        15
      In those exceptional circumstances, the “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.” Hubbard, 168 N.J. at 394 (quoting Estate

of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). Thus, a

plaintiff in a malpractice case is exempt, under the common knowledge

exception, from compliance with the affidavit of merit requirement only where

it is apparent that “the issue of negligence is not related to technical matters

peculiarly within the knowledge of [the licensed] practitioner[].” Sanzari v.

Rosenfeld, 34 N.J. 128, 142 (1961).

      The primary purpose of the statute is to “require plaintiffs . . . to make a

threshold showing that their claim is meritorious.” Hubbard, 168 N.J. at 394

(internal quotation marks omitted) (quoting Cornblatt, 153 N.J. at 242).

However, “ [i]f jurors, using ordinary understanding and experience and

without the assistance of an expert, can determine whether a defendant has

been negligent, the threshold of merit should be readily apparent from a

reading of plaintiff’s complaint.” Id. at 395.

      Thus, in Hubbard, where a doctor pulled the wrong tooth from his

patient’s mouth, the Court recognized that it “has long been settled that pulling

the wrong tooth is negligent as a matter of common knowledge. Id. at 396

                                        16
(citing Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954)). The Court

concluded that “the average layperson could apply his or her general

understanding and knowledge to find that the defendant . . . breached a duty of

care.” Ibid.

      In Palanque v. Lambert-Woolley, a plaintiff sought medical treatment

for heavy menstrual bleeding, and the defendant ordered two pregnancy tests.

168 N.J. 398, 400 (2001). The defendant misread the first test, concluded

plaintiff was pregnant, and then ordered a second test, which defendant

misread again as confirming that plaintiff was pregnant. Ibid. An

investigation determined that defendant had read the test results as being 1145

and 1421 MIU/ML, which indicated an ectopic pregnancy. Id. at 401.

Defendant diagnosed plaintiff as having an ectopic pregnancy. Id. 400-01.

The numbers 1145 and 1421, however, were actually the specimen’s

identification numbers on the laboratory report, not the MIU/ML measurement.

Ibid. The Court concluded that “[b]ecause defendant’s careless acts are quite

obvious, a plaintiff need not present testimony at trial to establish the standard

of care.” Id. at 406.

      Similarly, in Estate of Chin v. Saint Barnabas Medical Center, a patient

died from an air embolism during a diagnostic hysteroscopy, during which

someone accidentally connected a gas line rather than a fluid line to the

                                        17
patient’s uterus. 160 N.J. 454, 460 (1999). The Court concluded that the

common knowledge exception applied, noting that “if there is a hook-up which

is incorrect, that . . . is a matter of common knowledge and a jury can draw the

inference that there was professional negligence.” Id. at 470 (ellipsis in

original). That is because the case “hinged primarily on the jury’s

determinations regarding who did what with the exhaust line, rather than with

regard to professional standards of care.” Id. at 471.

        The common knowledge exception is construed narrowly “to avoid non-

compliance with the statute.” Hubbard, 168 N.J. at 397. The existence of the

exception alone does not mean that plaintiffs in malpractice cases should not

provide affidavits, even when they do not intend to rely on expert testimony at

trial. This Court has established that “[i]n most . . . cases, expert testimony

will be required to establish both a standard of care and breach of that standard

by the defendant, and a plaintiff who fails to present testimony could be

subject to involuntary dismissal pursuant to Rule 4:37-2(b).” Ibid. And

plaintiffs who do not file affidavits of merit and are unsuccessful in persuading

a court that an expert is not necessary run the risk of having their cases

dismissed for failure to state a cause of action under N.J.S.A. 2A:53A-29.

Ibid.




                                        18
      Because of the innate complexities of medical malpractice actions, such

issues do not usually fall within the common knowledge of an average juror.

Rosenberg, 99 N.J. at 325. This Court has determined that “[t]he test of need

of expert testimony is whether the matter to be dealt with is so esoteric that

jurors of common judgment and experience cannot form a valid judgment as to

whether the conduct of the party was reasonable.” Butler v. Acme Mkts., Inc.,

89 N.J. 270, 283 (1982).

      At its core, the common knowledge exception allows jurors to “supply

the applicable standard of care . . . to obviate the necessity for expert

testimony relative thereto.” Sanzari, 34 N.J. at 141. However, “a jury of

laymen cannot be allowed to speculate as to whether the procedure followed

by a [defendant professional] conformed to the required professional

standards.” Schueler v. Strelinger, 43 N.J. 330, 345 (1964). Rather, the

common knowledge exception to the Affidavit of Merit Statute applies only to

cases where expert testimony is not needed to establish the applicable standard

of care. Chin, 160 N.J. at 469. More specifically, the exception is properly

invoked only when “jurors are competent to assess simple negligence

occurring . . . without expert testimony to establish the standard of ordinary

care.” Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 292 (App. Div.

1995). This is not one of those cases.

                                         19
      In this case, in the hierarchal setting of a multi-disciplinary medical team

providing care to a hospitalized patient, plaintiff alleges that the overnight

duty nurses charged with monitoring her as the hospitalized patient were

negligent in that care. To assess a deviation in the standard of care in such a

setting, one must know the procedures, protocols, and scope of duties of the

licensed professional nurses in such circumstances. An expert is required for

that explanation. Such information is outside of the realm of common

knowledge. And, importantly, considerations of patient autonomy must be

added to the consideration of the requisite professional standards in this

matter.

                                         D.

      The right of patient autonomy is prescribed by N.J.S.A. 26:2H-12.8(e),

which states, “[e]very person admitted to a general hospital as licensed by the

Department of Health . . . shall have the right . . . [t]o refuse treatment to the

extent permitted by law.” Thus, absent special circumstances, providers may

not force a patient to undergo an invasive procedure where a competent patient

does not consent to that procedure.

      The right to control one’s own body is a basic societal right, long

recognized in the common law:

             No right is held more sacred, or is more carefully
             guarded by the common law, than the right of every
                                         20
            individual to the possession and control of his own
            person, free from all restraint or interference of others,
            unless by clear and unquestionable authority of law. . . .
            “The right to one’s person may be said to be a right of
            complete immunity: to be let alone.”

            [In re Conroy, 98 N.J. 321, 346 (1985) (quoting Union
            Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)).]

Equally important as “the doctor’s role to provide the necessary medical facts”

is “the patient’s role to make the subjective treatment decision.” Id. at 347.

“Thus, a competent adult . . . has the right to decline to have any medical

treatment initiated or continued.” Ibid.

      The right to make “decisions concerning one’s body is also protected by

the federal constitutional right of privacy.” Id. at 348. This Court in In re

Quinlan held that the right of privacy, affirmed by the United States Supreme

Court, “is broad enough to encompass a patient’s decision to decline medical

treatment under certain circumstances,” even if that decision might lead to the

patient’s death. 70 N.J. 10, 40 (1976).

                                       IV.

      Applying those legal principles to the facts of this case, we conclude

plaintiffs did not satisfy the common knowledge exception and therefo re were

not relieved of their obligation to provide an affidavit of merit as required by

the Affidavit of Merit Statute.


                                        21
      We reject the Appellate Division’s conclusion that “common sense

dictates that some action should have been taken when the nurses were

confronted with the sudden termination of Linda’s medical treatment.”

Cowley, 456 N.J. Super. at 292.

      We disagree with the Appellate Division that this case “presents the

circumstance of an alleged obvious act of omission, rather than an affirmative

action that clearly bespoke negligence,” id. at 291, thus not requiring the

“weeding out” of plaintiffs claims. That approach allows plaintiffs to

circumvent the Affidavit of Merit Statute by disguising complex negligence

cases with common knowledge allegations as to acts of omission. Determining

whether action should or should not have been taken is not enough. Jurors

cannot be allowed to speculate as to whether a procedure conformed to the

required professional standards of care. Schueler, 43 N.J. at 345. Allowing

the Appellate Division’s decision to stand, which permits jurors to speculate

that some action should have been taken, rather than requiring a determination

of what action should have been taken to comply with the applicable standard

of care expands application of the common knowledge exception to

speculation.

      The true question in this matter is much more complex. This is not

simply a case of failure to follow a physician’s order. The issue for the jury is

                                       22
not whether a nurse may ignore a physician’s order, but rather what steps are

required of a nurse when a patient refuses reinsertion of an NG Tube after its

removal. Included in that assessment will be considerations about a patient’s

exercise of a right to refuse treatment. And resolution of that issue --

determination of what action, if any, should be taken under circumstances like

those presented here -- ultimately requires expert opinion as to the appropriate

standard of care, as well as the submission of an affidavit of merit.

      The essential facts of this case as pled are not in dispute: defendants

inserted plaintiff’s NG Tube pursuant to the physician’s order; plaintiff

removed the tube and subsequently refused reinsertion. This case thus

involves the proper procedures and protocols involving reinsertion of an NG

Tube, complicated by the right of a patient to refuse medical treatment and the

serious implications that stem from such a refusal. The medical issue

presented requires expert medical proofs concerning the requisite standard of

care in these settings, especially when treating a patient who refuses treatment.

      Refusal of care forces medical professionals to walk the fine line

between providing a patient with appropriate care and ensuring the patient’s

right to autonomy is respected. A determination of what action should or may

be taken is a difficult path to navigate for a medical provider. That same




                                       23
determination is even more difficult when entrusted to lay jurors with little to

no medical training.

      A jury does not have common knowledge in regard to what should be

done in this situation. The standard of care for a nurse in this case requires

clarity on what should have been done, and the effect of a patient’s refusal on

that mandate. The issue of what is required of a nurse once refusal occurs goes

beyond the common knowledge of an average juror. Therefore, plaintiffs were

required to submit an affidavit of merit to establish the standard of care for

defendants in this case.

      Pursuant to N.J.S.A. 2A:53A-29, where a plaintiff fails to provide an

affidavit of merit within the statutorily mandated timeframe, it shall be deemed

a failure to state a cause of action unless the plaintiff satisfies an exception to

the affidavit of merit requirement. Here, plaintiffs neither submitted an

affidavit of merit nor satisfied an exception to that requirement. They

therefore failed to state a cause of action under N.J.S.A. 2A:53A-29, which

requires dismissal with prejudice for noncompliance.

                                         V.

      We reverse the judgment of the Appellate Division and dismiss the

complaint with prejudice.




                                         24
    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.




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