                                NOT FOR PUBLICATION WITHOUT THE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-4268-17T3

J.M.,

          Plaintiff-Appellant,

v.

IJKG-OPCO, LLC, d/b/a CAREPOINT
HEALTH-BAYONNE MEDICAL
CENTER,

          Defendant/Third-Party
          Plaintiff-Respondent,

v.

DETRA BALDWIN,

     Third-Party Defendant.
________________________________

                    Submitted February 5, 2019 – Decided March 25, 2019

                    Before Judges Rothstadt and Gilson.
                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-4792-16.

                    Timothy J. Foley argued the cause for appellant (Foley
                    & Foley, attorneys; Timothy J. Foley and Sherry L.
                    Foley, of counsel and on the briefs).
            David C. Donohue argued the cause for respondent
            (Farkas & Donohue, LLC, attorneys; David C.
            Donohue, of counsel; Gary W. Baldwin, on the brief).

PER CURIAM

      The estate of plaintiff J.M. appeals from an April 13, 2018 order

dismissing her complaint against defendant IJKG-OPCO, LLC d/b/a CarePoint

Health-Bayonne Medical Center (CarePoint) for failure to file an affidavit of

merit.1 We reverse because some of the claims asserted in plaintiff's complaint

suggest claims that do not require an affidavit of merit. Thus, we remand for

further proceedings.

                                       I.

      Plaintiff's complaint was dismissed on a motion under Rule 4:6-2(e).

Accordingly, we consider "allegations in the complaint, exhibits attached to the

complaint, matters of public record, and documents that form the basis of a

claim." Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015)

(quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)).

      On December 4, 2014, plaintiff was a patient at CarePoint, which is a

hospital.   Another patient (the roommate) was assigned by personnel at



1
   Because this appeal involves healthcare provided to plaintiff, we use initials
to protect her privacy interests.
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                                       2
CarePoint to share plaintiff's hospital room. Plaintiff alleges that the roommate

assaulted her by dragging her from her hospital bed onto the floor. As a result,

plaintiff's leg was injured and had to be amputated.

      On December 2, 2016, plaintiff filed a complaint against CarePoint and

various personnel who worked at the hospital. The complaint asserted that

CarePoint and its personnel knew or should have known that the roommate

posed a danger to plaintiff and they negligently failed to protect plaintiff.

Among other allegations, plaintiff asserts that CarePoint and its personnel had

actual or constructive knowledge of the roommate's "dangerous propensities"

and those propensities created a foreseeable risk to plaintiff. Plaintiff also

asserted claims for negligent and intentional infliction of emotional distress.

After the complaint was filed, plaintiff died. Consequently, her estate is now

pursuing her claims.

      CarePoint filed an answer in June 2017. In its answer, CarePoint made a

demand that an affidavit of merit be filed within sixty days. No affidavit of

merit was filed. Thus, in March 2018, CarePoint filed a motion to dismiss

plaintiff's complaint because plaintiff had failed to submit an affidavit of merit.

Plaintiff opposed that motion arguing that an affidavit was not necessary




                                                                           A-4268-17T3
                                        3
because her allegations were based on general negligence, rather than medical

malpractice.

      In support of its motion to dismiss, CarePoint contended that plaintiff was

at the hospital because she had broken her leg. CarePoint also asserted that the

roommate pulled plaintiff by her legs "in an apparently misguided attempt" to

assist plaintiff to go to the bathroom. Those factual allegations were not set

forth in any pleading or certification. Instead, they were contained in a reply

letter brief submitted by counsel for CarePoint.2

      On April 13, 2018, the court entered an order dismissing plaintiff's

complaint with prejudice. On that same day, the court set forth the reasons for

its ruling on the record, without hearing oral arguments and without any

appearance by counsel or the parties. In its oral decision, the court reasoned that

plaintiff needed to show a deviation from a professional standard of care to

pursue claims against CarePoint and its personnel. In that regard, the trial court

reasoned:


2
    In her complaint, plaintiff identified the roommate as a defendant, but
apparently did not know the roommate's name because she was identified as
"Jane Doe Assailant." CarePoint asserted a crossclaim against the roommate.
CarePoint disclosed the name of the roommate in the papers it filed in support
of its motion to dismiss. Counsel for plaintiff and CarePoint informed us that
the roommate was never served with the complaint or crossclaim and she has
never been joined in the action.
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                                        4
            Here, the only method by which the plaintiff can
            establish a cause of action successfully against the
            hospital is proof of a deviation of a standard of care
            regarding training or supervision of the healthcare staff
            as to the screening of the mental status of the roommate,
            as well as the consequent placement decisions. This
            would require expert testimony, and, as such, the need
            for an [a]ffidavit of merit.

Because plaintiff had submitted no affidavit of merit within the time prescribed,

the trial court dismissed all of plaintiff's claims. Plaintiff now appeals.

                                        II.

      On appeal, plaintiff makes two arguments. She contends that the trial

court erred in dismissing her complaint because (1) her claims did not require

an affidavit of merit; and (2) the trial court inappropriately relied on information

outside the pleadings and effectively considered the motion as a motion for

summary judgment without allowing plaintiff an opportunity to oppose

summary judgment.

      We use a de novo standard to review the dismissal of a complaint for

failure to state a claim. J-M Mfg. Co., Inc. v. Phillips & Cohen, LLP, 443 N.J.

Super. 447, 453 (App. Div. 2015) (citing Donato v. Moldow, 374 N.J. Super.

475, 483 (App. Div. 2005)). Our inquiry is focused on "examining the legal

sufficiency of the facts alleged on the face of the complaint." Green v. Morgan

Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-Morristown v. Sharp

                                                                              A-4268-17T3
                                         5
Elecs. Corp., 116 N.J. 739, 746 (1989)). Thus, we must "search[] the complaint

in depth and with liberality to ascertain whether the fundament of a cause of

action may be gleaned even from an obscure statement of claim[.]" Major v.

Maguire, 224 N.J. 1, 26 (2016) (quoting Printing Mart-Morristown, 116 N.J. at

746). "At this preliminary stage of the litigation the [c]ourt is not concerned

with the ability of plaintiffs to prove the allegation contained in the complaint.

For purposes of analysis plaintiffs are entitled to every reasonable inference of

fact." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349

(App. Div. 2012) (quoting Printing Mart-Morristown, 116 N.J. at 746).

      The affidavit of merit statute provides, in relevant 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 [or her] profession or occupation, the
            plaintiff shall, . . . 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.]

      An affidavit must be filed within sixty days of the filing of an answer.

Ibid. If, however, an affidavit is provided after sixty days, but within 120 days


                                                                          A-4268-17T3
                                        6
after an answer is filed, the affidavit will be deemed timely, provided (1) leave

to file is sought, and (2) good cause for the delay is established. Paragon

Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citing

Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). The purpose of the statute is

"to weed out frivolous claims against licensed professionals early in the

litigation process." Meehan v. Antonellis, 226 N.J. 216, 228 (2016) (citing

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003)).

      "[S]ubmission of an appropriate affidavit of merit is considered an

element of the claim." Ibid. Accordingly, if an affidavit is not provided within

120 days of the answer, the claims will generally be dismissed with prejudice.

Paragon, 202 N.J. at 422 (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218,

247 (1998)).

      Not every claim against a licensed person requires an affidavit of merit.

A plaintiff does not need an affidavit if defendant's negligence is a matter of

common knowledge. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001)

(citing Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001)). 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


                                                                         A-4268-17T3
                                       7
specialized knowledge of experts." Hubbard, 168 N.J. at 394 (quoting Estate of

Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). Thus, even when

claims of simple negligence are asserted against a licensed medical facility, such

as a hospital, an affidavit of merit is not required because jurors are competent

to assess simple negligence occurring in a hospital without expert testimony to

establish a standard of care. See Nowacki v. Cmty. Med. Ctr., 279 N.J. Super.

276, 292 (App. Div. 1995).

         Determining whether a matter alleges professional negligence or ordinary

negligence involves scrutiny of the legal claims alleged. Couri v. Gardner, 173

N.J. 328, 340-41 (2002). A court must consider "whether a claim's underlying

factual allegations require proof of a deviation from a professional standard of

care," or ordinary negligence, as only the former claims require an affidavit of

merit.     Id. at 341.   To make that determination, our Supreme Court has

explained:

               There are three elements to consider when analyzing
               whether the [affidavit of merit] 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


                                                                           A-4268-17T3
                                          8
             professional or occupational standards or treatment
             practices" (standard of care).

             [Id. at 334 (quoting N.J.S.A. 2A:53A-27).]

      "It is not the label placed on the action that is pivotal but the nature of the

legal inquiry." Id. at 340. Identifying the nature of the legal inquiry is a question

of law that the court makes. Ibid.

      Here, plaintiff contends she is not making malpractice claims against

CarePoint. Instead, she is asserting simple or ordinary negligence; that is,

CarePoint and its personnel knew or should have known that the roommate was

dangerous and that she posed a risk of harming plaintiff. Moreover, plaintiff

asserts that CarePoint was negligent in not protecting plaintiff from a

foreseeable risk. A generous reading of plaintiff's complaint support s a claim

of simple negligence.

      The success of such a simple negligence claim will depend on why the

roommate "assaulted" plaintiff and whether CarePoint or its personnel knew or

should have known that the roommate might assault plaintiff. The current record

does not contain that information. Instead, that information will have to be

developed through discovery. On this appeal, we hold only that plaintiff is to

be given an opportunity to take discovery to see if she can establish her claims

of simple negligence.

                                                                             A-4268-17T3
                                         9
      We further note, however, that by not producing an affidavit of merit,

plaintiff has foreclosed her opportunity to assert any claim based on a deviation

from a professional standard of care. See Murphy v. New Road Constr., 378

N.J. Super. 238, 243 (App. Div. 2005) (explaining that when a plaintiff does not

produce a timely affidavit of merit, he or she will "have placed all his [or her]

eggs in the ordinary negligence basket"). Consequently, on remand, plaintiff

can only pursue claims of simple negligence, and she will be precluded from

relying on any claim of a deviation from a professional standard or offering an

expert to discuss such a deviation.

      Reversed and remanded. We do not retain jurisdiction.




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