The Appellate Division, citing a standard federal courts have applied to acts of omission, has ruled that the common knowledge exception to the affidavit of merit statute applies in a case where nurses allegedly failed to reinsert a nasogastric tube after the patient pulled it out.
The court in Cowley v. Virtua Health System, a published decision issued Sept. 6, reinstated the plaintiff’s medical malpractice suit that was dismissed for failure to file a timely affidavit of merit.
According to the decision, plaintiff Linda Cowley was admitted to Virtua Voorhees Hospital for removal of gallstones in 2014 when a physician ordered the insertion of a nasogastric tube, which goes through the nose, down the throat and into the stomach. Two days after it was inserted, Cowley pulled out the tube and refused to have it replaced, the court said, noting that the order did not address reinsertion of the tube if it fell out or was removed.
The malpractice suit, filed in October 2016, alleged that nurses Robert Gribbon and Helene Curran did not reinsert the tube or call anyone for instructions. Later, Cowley suffered from numerous complications that she claimed resulted from failures by Virtua, Gribbon and Curran to comply with the order.
The defendants filed an answer in November 2016, and in March 2017 they filed a motion to dismiss based on plaintiffs’ failure to serve an affidavit of merit. Cowley and her husband, Robert, opposed the motion, arguing that no affidavit was needed because the necessity of reinserting the tube was a matter of common knowledge.
In April 2017, Camden County Superior Court Judge Christine Orlando granted the motion to dismiss, finding that an affidavit of merit was required because the jury would have to determine the proper standard of care for when the nasogastric tube became dislodged.
On appeal, Appellate Division Judges Michael Haas, Garry Rothstadt and Greta Gooden Brown noted that the claim in the present case involves an alleged act of omission, rather than an affirmative act. The panel cited three federal cases where the common knowledge exception was found to apply to acts of omission by medical personnel who failed to continually fulfill a doctor’s orders.
Among the cases cited was Natale v. Camden County Correctional Facility, a Third Circuit case from 2003 in which the common knowledge exception was held to apply to a health service provider that failed to ask the patient’s treating physician who ordered insulin treatment how often it should be administered.
The appeals court said that logic applies equally to the allegations in the present case.
“Applying the purpose of the [affidavit of merit statute] to these facts, we conclude that a layperson could determine, without expert assistance, that plaintiffs’ claim based on 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,” Rothstadt wrote for the court. “At this stage, 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.”
Laurence Harbor attorney Randi Greenberg argued on behalf of Cowley and her husband at the Appellate Division, with Thomas Sacchetta of Sacchetta & Baldino in Media, Pennsylvania, on the brief.
Greenberg said no prior state court cases have addressed the same fact pattern, so the appeals court relied on cases from the District of New Jersey and the Third Circuit.
“They basically followed federal precedent, which I think was the right result,” Greenberg said.
Mary Kay Wysocki of Parker McCay in Mount Laurel, who represented Virtua and the nurses, declined to comment on the ruling.