                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NO. A-4004-16T4

LINDA COWLEY and
ROBERT COWLEY, w/h,

     Plaintiffs-Appellants,             APPROVED FOR PUBLICATION

                                           September 6, 2018
v.
                                          APPELLATE DIVISION
VIRTUA HEALTH SYSTEM,
VIRTUA VOORHEES HOSPITAL,
ROBERT GRIBBON, R.N.,
and HELENE CURRAN, R.N.,

     Defendants-Respondents.
_________________________________

         Argued May 31, 2018 – Decided September 6, 2018

         Before     Judges   Haas,   Rothstadt   and   Gooden
         Brown.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket No. L-
         3616-16.

         Randi S. Greenberg argued the cause for
         appellants (Sacchetta and Baldino, attorneys;
         Thomas F. Sacchetta, of counsel and on the
         briefs).

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

     The opinion of the court was delivered by

ROTHSTADT, J.A.D.
     In this appeal, we are asked to consider whether the Law

Division properly dismissed plaintiffs Linda Cowley's and Robert

Cowley's medical malpractice complaint based upon their failure

to serve an affidavit of merit (AOM), after it rejected plaintiffs'

argument that the "common knowledge" exception relieved them of

the obligation to serve an AOM as required by the Affidavit of

Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29.    In their appeal

from the Law Division's April 13, 2017 order dismissing their

action against defendants Virtua – West Jersey Health System, Inc.

(Virtua) (improperly pled as Virtua Health System and Virtua

Voorhees Hospital), Robert Gribbon, R.N. and Helen Curran, R.N.,

plaintiffs contend that the common knowledge exception applied

because the nurses failed to take any action when a tube that was

properly inserted into Linda,1 in accordance with a physician's

order, became dislodged.   We find that the unique circumstances

of this case satisfied the purposes of the AMS by establishing

that plaintiffs' claim had sufficient merit under the common

knowledge exception to proceed, even without an AOM.

     The AMS

          requires that a plaintiff who files a
          "malpractice or negligence [action against] a
          licensed   person   in  his   profession   or

1
  We refer to the individual plaintiff by her first name to avoid
any confusion caused by plaintiffs' common last name.


                                2                           A-4004-16T4
            occupation" must submit "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."

            [Buck v. Henry, 207 N.J. 377, 388-89 (2011)
            (alteration in original) (quoting N.J.S.A.
            2A:53A-27).]

     "The affidavit was identified early on by th[e] Court as a

required 'threshold showing' that a malpractice claim is not

frivolous."     A.T. v. Cohen, 231 N.J. 337, 345 (2017) (citing In

re Petition of Hall, 147 N.J. 379, 391 (1997)).            In enacting the

AMS, it was "the Legislature's intent that the statute facilitate

the weeding-out of frivolous lawsuits."          Id. at 346 (citations

omitted).    The "laudatory . . . dual purposes of the statute [are]

to identify and eliminate unmeritorious claims against licensed

professionals    and   to    permit   meritorious   claims    to   proceed

efficiently     through     the   litigation   process."       Meehan     v.

Antonellis, 226 N.J. 216, 228-29 (2016) (citations omitted).            "The

submission of an appropriate [AOM] is considered an element of the

claim."     Id. at 228 (citing Alan J. Cornblatt, PA v. Barow, 153

N.J. 218, 244 (1998)).        A plaintiff must serve an AOM or face

dismissal of their complaint with prejudice because "[t]he failure

to provide the affidavit or its legal equivalent is 'deemed a


                                      3                            A-4004-16T4
failure to state a cause of action[.]'"                     A.T., 231 N.J. at 346

(quoting N.J.S.A. 2A:53A-29).

       Our courts "have recognized equitable exceptions to 'temper

the    draconian       results    of     an    inflexible       application     of    the

statute[.]'"           Ibid.   (quoting       Ferreira     v.   Rancocas     Orthopedic

Assocs., 178 N.J. 144, 151 (2003)).                 One exception is the common

knowledge exception.            "An [AOM] is not required in a case where

the 'common knowledge' doctrine applies and obviates the need for

expert testimony to establish a deviation from the professional's

standard of care." Bender v. Walgreen Eastern Co., 399 N.J. Super.

584, 590 (App. Div. 2008) (citing Hubbard v. Reed, 168 N.J. 387,

390 (2001)).       Case law has applied a common knowledge exception

to    the   AOM   requirement       in    discrete        situations   where     expert

testimony is not needed to establish whether the defendants' "care,

skill or knowledge . . . fell outside acceptable professional or

occupational standards or treatment practices."                    Hubbard, 168 N.J.

at 390 (quoting N.J.S.A. 2A:53A-27).                     "The basic postulate for

application       of    the    doctrine       therefore    is   that   the    issue    of

negligence is not related to technical matters peculiarly within

the knowledge of medical or dental practitioners."                     Estate of Chin

v. St. Barnabas Med. Ctr., 160 N.J. 454, 470 (1999) (quoting

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



                                              4                                 A-4004-16T4
     With these guiding principles in mind, we turn to the facts

set forth in the motion record. Plaintiffs' October 6, 2016 filing

of their "medical malpractice complaint" arose from the treatment

Linda received after being admitted to Virtua on October 17, 2014,

where she underwent diagnostic testing that revealed "multiple

gall stones[,]" "a small bowel obstruction and mild dilation of

the bile ducts."     She was diagnosed with "acute cholecystitis[,]"

a doctor performed a procedure to remove her gallstones, and a

physician's order was written requiring that a nasogastric (NG)

tube be inserted.2

     Pursuant to the physician's order, a nurse inserted the NG

tube.   The order did not address reinsertion of the tube if it

fell out or was otherwise removed.     According to hospital records,

Linda pulled out the tube less than two days later and "refused

replacement[.]"    Plaintiffs allege the nurses did not reinsert the

tube nor did they contact anyone for instructions, including the


2
   Cholecystitis refers to "[i]nflammation of the gallbladder."
Stedman's Medical Dictionary 365 (28th ed. 2006). An NG tube is
"[a] tube that is inserted through the nose, down the throat and
esophagus, and into the stomach. It can be used to give drugs,
liquids, and liquid food, or used to remove substances from the
stomach.   Giving food through a nasogastric tube is a type of
enteral nutrition."   NCI Dictionary of Cancer Terms, National
Cancer                                                 Institute,
https://www.cancer.gov/publications/dictionaries/cancer-
terms/def/nasogastric-tube (last visited Aug. 17, 2018).



                                   5                          A-4004-16T4
physician who ordered the NG tube.                Linda subsequently underwent

surgery for a bowel obstruction and by the time she was discharged

from the hospital, she was diagnosed with twelve different medical

conditions.         Afterward, Linda suffered various post-operative

complications that she claims resulted from defendants' "fail[ure]

to comply with the order . . . ."

      Plaintiffs' complaint specifically alleged that "defendants

failed to comply with the order [for the NG tube] and while the

NG   tube      was        out,    [Linda]       aspirated     and      significantly

deteriorated."        Identifying defendants' negligence, the complaint

alleged      that    it     included   "failure       to    properly      treat . . .

diagnose . . . [and] monitor [Linda] . . . ."                       It also alleged

"[d]efendants failed in their duty to plaintiff including failing

to   properly       care    for   [her,]    follow    policies      and   procedures

and . . . to notify proper medical personnel and obtain proper

consent."

      Defendants filed an answer to the complaint on November 22,

2016, and on March 23, 2017, they filed a motion to dismiss the

complaint     based        upon   plaintiffs'      failure    to    serve    an     AOM.

Plaintiffs submitted their attorney's certification in opposition

to the motion that explained, "[p]laintiffs have not provided an

[AOM]   as    [they]       believe   that   this     matter   presents      a    common



                                            6                                   A-4004-16T4
knowledge case" that relieved them of the obligation to serve an

AOM.

       On April 13, 2017, the motion judge considered the parties'

oral arguments and entered her order granting the motion to dismiss

with prejudice.    In her statement of reasons placed on the record

on that date, the judge addressed plaintiffs' contention that the

common knowledge exception applied and their reliance upon the

Supreme Court's opinions in Hubbard and Estate of Chin to support

their argument that an AOM was not required in this case.         The

judge acknowledged that under the exception, an AOM is not required

where a "jur[or]'s common knowledge as a lay person is sufficient

to enable them to use ordinary understanding and experience to

determine a defendant's negligence, without the benefit of the

specialized knowledge of an expert."      The judge noted, however

that Hubbard suggested it was still in a plaintiff's interest to

serve an AOM to "prevent the risk of a dismissal if the plaintiff

is unsuccessful in persuading the court that an expert is not

necessary."

       The motion judge also observed that plaintiffs' claim in this

case was similar to the claim made in Estate of Chin that "involved




                                  7                          A-4004-16T4
the improper connection of a tube to a hysteroscope[3] used during

a procedure which permitted nitrogen to enter the plaintiff's

uterus."    According to the judge, in Estate of Chin, the common

knowledge exception applied because "the jury was called [upon]

to determine who did what with the tube line rather than with

regard to any professional standard of care" since the only issue

was "who improperly connected the tube . . . ."

     Comparing the facts in Estate of Chin to plaintiffs' claim

here, the judge found that there was "no dispute that the [NG]

tube was . . . placed pursuant to the [physician's] order [but]

plaintiff claims when the tube was removed that the order was

continuing, and there was a continuing obligation to insert the

tube."     Turning to defendant's contentions based on the medical

records, the judge found that plaintiff did "not dispute the

accuracy of the[] records" that stated that during the night

following the placement of the tube, plaintiff pulled it out and

refused to have it replaced.     However, she did not consider "it

to be material to the analysis how the tube was removed or whether

[Linda] actually refused replacement."




3
    A hysteroscope is "[a]n endoscope used in direct visual
examination of the canal of the uterine cavity." Stedman's Medical
Dictionary 941 (28th ed. 2006).

                                 8                         A-4004-16T4
     The judge concluded that Estate of Chin did not apply because

plaintiffs did not dispute the fact that the tube was initially

inserted in accordance with a physician's order, a fact which the

judge   found   to   be   "critical   in    making    this    determination."

According to the judge, the factual circumstances here changed

"this matter from a case where a jury with ordinary knowledge and

experience could make a determination . . . to a standard of care

case that requires expert testimony."              She concluded, "a jury

cannot make a determination in this case without knowing what . . .

a nurse [should] do" when an [NG] tube is inserted pursuant to an

order but subsequently comes out.          Under these circumstances, the

judge held that the common knowledge exception did not apply and

an AOM was required because a jury would be called upon not to

determine whether the tube was inserted, but what is the standard

of care when the NG "tube comes out."

     On appeal from the judge's order dismissing their complaint,

plaintiffs argue that contrary to the motion judge's conclusion,

the "failure to reinsert . . . Linda['s] . . . [NG] tube falls

within the 'common knowledge' exception to N.J.S.A. 2A:53A-27[.]"

We agree.

     Whether    plaintiff's    complaint      is     exempt   from   the   AOM

requirement based on the common knowledge doctrine is a legal

issue subject to our de novo review.               See Triarsi v. BSC Grp.

                                      9                               A-4004-16T4
Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011).           "A trial

court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special

deference."    Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995) (citations omitted).

     Of significance to our review is the purpose behind the AMS

being "to weed out frivolous complaints, not to create hidden

pitfalls for meritorious ones."        Buck, 207 N.J. at 383.     In order

to establish a claim's merit, the AMS requires a plaintiff to

provide   an   expert's    affidavit   stating   the   action   has    merit.

N.J.S.A. 2A:53A-27.       Generally, "the [AMS] 'is not concerned with

the ability of plaintiffs to prove the allegation contained in the

complaint,' but 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),

rev'd on other grounds, 168 N.J. 387 (2001)).              The underlying

rationale of "the statute is 'to require plaintiffs . . . to make

a threshold showing that their claim is meritorious, in order that

meritless lawsuits readily could be identified at an early stage

of the litigation.'"       Paragon Contrs., Inc. v. Peachtree Condo.

Ass'n, 202 N.J. 415, 421 (2010) (alteration in original) (quoting

In re Petition of Hall, 147 N.J. at 391).



                                    10                                A-4004-16T4
     The AMS is consistent with the general requirement that expert

testimony is required to establish the standard of care, which is

an essential element of a plaintiff's professional negligence

claim.   Expert      testimony     about      an   alleged     deviation    from      a

reasonable standard of care is required whenever a licensed person

exercised professional responsibilities and judgment before acting

or failing to act.      Aster ex rel. Garofalo v. Shoreline Behavioral

Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002).                     "In most

such 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)."                   Hubbard, 168

N.J. at 397.

     A plaintiff aware of the                AMS's requirements is free to

conclude an AOM is not necessary, but if that conclusion is

incorrect and the requisite time period for filing has passed, the

complaint must be dismissed. See Paragon, 202 N.J. at 423. "[T]he

wise course of action in all malpractice cases [is] for plaintiffs

to provide affidavits even when they do not intend to rely on

expert testimony at trial."              Hubbard, 168 N.J. at 397.                 Any

"uncertainty    in   relying      on    common     knowledge    in   professional

malpractice    cases"    should    be    addressed     by    "[a]    timely     filed



                                        11                                    A-4004-16T4
affidavit [that] would prevent the risk of a later dismissal."

Ibid. (citations omitted).4

     In the complex field of medicine and patient treatment, expert

testimony is typically required.      See Nowacki v. Cmty. Med. Ctr.,

279 N.J. Super. 276, 291 (App. Div. 1995).         That requirement,

however, is not absolute.    Our courts have recognized that not all

lawsuits against licensed professionals require an AOM, including

where the common knowledge exception applies.        See Bender, 399

N.J. Super. at 590.      Those situations are generally limited to

where the jurors' knowledge as laypersons suffices to enable them,

using their ordinary understanding and experience, to assess a

defendant's alleged "negligence without the benefit of specialized

knowledge of experts."    Hubbard, 168 N.J. at 394 (quoting Estate

of Chin, 160 N.J. at 469).    "[E]ven in a medical malpractice case,

there are some duties the breach of which would be clear to a

juror of average experience and intelligence, so that expert




4
   Although not raised as an issue before the motion judge or us,
we observe that the required Ferreira conference, where disputes
about AOMs should be resolved, was never scheduled by the trial
court or requested by either party. See A.T., 231 N.J. at 346
("We mandated the conference and imposed requirements on both
courts and defendants to discover and address issues as to the
sufficiency of a plaintiff's AOM." (citing Ferreira, 178 N.J. at
155)).



                                 12                           A-4004-16T4
testimony on the standard of care is not required."       Nowacki, 279

N.J. Super. at 291 (citations omitted).

     However, the common knowledge exception is construed narrowly

in order to avoid non-compliance with the legislative objectives

of the AOM statute.   Hubbard, 168 N.J. at 397.      For the exception

to apply, "the threshold of merit should be readily apparent from

a reading of the plaintiff's complaint."       Id. at 395.

     Determining whether a matter fits within the common knowledge

exception, demands scrutiny of the legal claims alleged.            Couri

v. Gardner, 173 N.J. 328, 340-41 (2002) ("It is not the label

placed on the action that is pivotal but the nature of the legal

inquiry.").     "If   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 the plaintiff's

complaint."   Hubbard, 168 N.J. at 395.

     Common knowledge cases involve obvious or extreme error.        See

Bender, 399 N.J. Super. at 590.         Our courts have held that the

exception applies in cases involving licensed medical facilities

where "jurors are competent to assess simple negligence occurring

in a hospital without expert testimony to establish the standard

of ordinary care, as in any other negligence case[.]"         Nowacki,

279 N.J. Super. at 292.    As the Court stated in Estate of Chin,

                                 13                            A-4004-16T4
the doctrine "is appropriately invoked where the 'carelessness of

the defendant is readily apparent to anyone of average intelligence

and ordinary experience.'"      160 N.J. at 469 (citations omitted).

       For example, the common knowledge exception was applied in

Estate of Chin, because "[n]o party contested the fact that the

misconnection [of a hysteroscope] was the result of negligence on

the part of at least one defendant."        Id. at 471.     In Hubbard, it

was applied to a claim that a dentist pulled the wrong tooth.

Hubbard, 168 N.J. at 396.       The exception was also applicable to:

(1) the claim against the doctor in Palanque v. Lambert-Woolley,

who misdiagnosed the plaintiff and subjected her to unnecessary

surgical procedures after admittedly "misreading [her] laboratory

results," 168 N.J. 398, 407 (2001); (2) a claim filed against the

pharmacist in Bender, 399 N.J. Super. at 590-91, who filled a

prescription with the wrong medication; and (3) the podiatrist in

Jones v. Stess, 111 N.J. Super. 283, 289-90 (App. Div. 1970), who

dropped an instrument on the patient's leg causing an amputation.

By contrast, in Risko v. Ciocca, 356 N.J. Super. 406, 408-11 (App.

Div.   2003),   we   rejected   the    exception's   application   because

complexities    involved   in    plaintiff's    operation    and   medical

condition warranted expert testimony to show whether the defendant

doctors breached a duty of care.



                                      14                           A-4004-16T4
     Unlike the other cases we have considered, plaintiffs' claim

in this case presents the circumstance of an alleged obvious act

of omission, rather than an affirmative action that clearly bespoke

negligence as in the cases we cited.   Other courts have found the

common knowledge exception to apply in similar circumstances.    For

example, in Natale v. Camden County Correctional Facility, 318

F.3d 575, 580 (3d Cir. 2003), the Third Circuit applied the

exception where the defendant health service provider failed to

ask the patient's treating physician who ordered insulin for a

diabetic patient how often the medicine needed to be administered.

The Third Circuit concluded, "[w]hile laypersons are unlikely to

know how often insulin-dependent diabetics need insulin, common

sense -- the judgment imparted by human experience -- would tell

a layperson that medical personnel charged with caring for an

insulin-dependent diabetic should determine how often the diabetic

needs insulin."   Ibid.

     Similarly, in Bryan v. Shah, 351 F. Supp. 2d 295, 300, 302

n.11 (D.N.J. 2005), where health providers "twice failed to obtain

blood tests to monitor Lithium levels, which tests were twice

ordered by the physician[,]" a U.S. District Court judge noted:

          [T]his case does not appear to turn on whether
          defendants knew that a patient taking lithium
          is at risk of suffering from lithium toxicity
          if regular lab tests are not performed; this
          case does appear to revolve around whether

                               15                           A-4004-16T4
            medical orders were adhered to and whether
            Defendants followed up with the Plaintiff
            after the orders were given.

See Jackson v. Fauver, 334 F. Supp. 2d 697, 743 (D.N.J. 2004) ("A

reasonable jury would not need the assistance of an expert to

conclude that [the medical provider's] personnel were negligent

when they allegedly failed both to provide these plaintiffs with

medical care prescribed for them by their treating specialists and

to     follow   the    medical   instructions    of   these   specialists."

(emphasis added)).

       We conclude the logic applied in the cited federal cases

dealing with a failure to take action to continually fulfill a

doctor's orders applies equally to the allegations in this case.

Defendants here are alleged to have not taken any action, not even

making a telephone call to the attending physician to alert him

of the NG tube's dislodgment and to seek further instructions

given the circumstances.         Applying the purpose of the AMS to these

facts, we conclude that a layperson could determine, without expert

assistance, that plaintiffs' claim based upon the nurses' failure

to take any action when the NG tube became dislodged has merit in

light of the fact that a physician ordered that it remain inserted.

At this stage, common sense dictates that some action should have

been    taken   when   the   nurses   were   confronted   with   the    sudden



                                      16                               A-4004-16T4
termination of Linda's medical treatment that was required by the

physician charged with her care.

     Concluding   the   complaint   has   merit   does   not,   however,

indicate that plaintiffs' claim automatically survives challenges

that might later arise in the form of summary judgment motions or

during trial.   It only means that, at this stage, there is no need

to "weed out" plaintiffs' claim.     The preservation of plaintiffs'

claim is of course limited to the allegations relating to the

nurses' failure to take further action after the NG tube became

dislodged.   It does not revive any other basis for plaintiffs'

claim.

     Reversed and remanded.    We do not retain jurisdiction.




                                17                               A-4004-16T4
