Time and time again, a familiar question arises in the context of medical malpractice actions involving hospitals and health care facilities: Is an affidavit of merit always required against a health care facility where a plaintiff’s theory of negligence against it sounds only in vicarious liability? This question often plagues plaintiff and defense counsel alike, and has recently garnered the attention of our higher courts. The critical inquiry involves assessing the underlying theories of liability and determining whether the individual alleged to be an agent of the health care facility can be considered a “licensed person” under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26. If the answer to the latter question is in the affirmative, then an affidavit of merit (AOM) is indeed required.

Pursuant to the Affidavit of Merit Statute, a plaintiff who alleges professional negligence against a “licensed person” must serve an affidavit from an appropriately qualified individual stating that the action has merit within 60 days of the defendant’s answer, or an additional 60 days thereafter upon a finding of good cause. N.J.S.A. 2A:53A:27. Failure to do so will result in dismissal of a plaintiff’s complaint, with prejudice. Meehan v. Antonellis, 226 N.J. 216 (2016).

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