Medical Malpractice – Appellate Division Finds Common Knowledge Doctrine Applies

Sep 8, 2018

In a case involving medical malpractice, the Appellate Division recently held that the “Common Knowledge” exception relieved plaintiff of the obligation to serve an Affidavit of Merit required by N.J.S.A. 2A:53A-26-29.  Cowley v. Virtua Health System, et al., - N.J. Super. – (App. Div. 2018).

In Cowley, plaintiff was admitted to the hospital for diagnostic testing.  She underwent surgery to remove her gall stones and a physician’s order was written requiring that a nasogastric (NGN) to be inserted.  A nurse inserted the tube, but two days later plaintiff pulled it out.

No nurse ever reinserted the tube nor contacted anyone for instructions.  Plaintiff underwent surgery for a bowel obstruction and by the time she was discharged from the hospital, she was diagnosed with twelve different medical conditions.

Plaintiff did not produce an Affidavit of Merit within sixty (60) days of the defendant’s Answer.  Plaintiff argued that the “Common Knowledge” exception relieved her of that duty and the Appellate Division agreed.

The “Common Knowledge Doctrine” applies where the expert testimony is not needed to establish that defendant’s care fell outside professional standards.  The exception is construed narrowly in order to avoid non-compliance with the Affidavit of Merit Statute.  The exception involves case of obvious or extreme error.  The court held that the exception applies to obvious acts of omission in addition to affirmative acts of negligence.