Case Dismissed Due To Defective Affidavit Of Merit

On July 21, 2020, the pro se plaintiff (Administratrix of the Estate of Alexandrianna Lowe) filed a New Jersey medical malpractice complaint against JSUMC and Dr. Carson, alleging they were negligent in their care and treatment of Lowe, resulting in her death…, New Jersey Appellate Court Affirms Dismissal Of Medical Malpractice Case Due To Defective Affidavit Of Merit, July 2023


Plaintiff contended JSUMC employees failed to check Lowe’s blood sugar during a Code Blue after an unknown syringe was found in her intravenous line (Lowe was known to be a Type 1 diabetic). Plaintiff asserted the JSUMC attending staff erroneously believed the unknown syringe contained narcotics and not insulin. Plaintiff further argued the attending medical staff failed to administer insulin or check Lowe’s sugar levels while attempting to revive her. Lowe died after attempts to resuscitate her were unsuccessful. Weeks later, a toxicology report showed the absence of illicit drugs in Lowe’s system.


Approximately thirty days later, defendants moved to dismiss Dr. Carson, for non-involvement, under N.J.S.A. 2A:53A-40. An affidavit filed in support of defendants’ motion identified Dr. Vikas Singh as the attending physician, and all JSUMC staff present during Lowe’s Code Blue. Plaintiff did not move to amend the complaint.


Plaintiff did not file an AOM within the sixty-day requirement of N.J.S.A. 2A:53A-27. Dr. Carson moved to dismiss the complaint and the unopposed motion was granted, which left JSUMC as the remaining defendant. Thereafter, JSUMC moved to dismiss plaintiff’s complaint with prejudice for failure to provide an AOM.


On October 31, 2020, plaintiff submitted an “affidavit” from Jennifer Colangelo, a retired licensed practical nurse. In the affidavit, Colangelo stated, based on her knowledge of the case “there [was] reasonable probability that the care, skill or knowledge exercised” in the care of Lowe by “[defendant JSUMC, and defendant Dr. Carson] . . which resulted in her death . . . fell outside professional treatment standards.” The document was neither notarized nor conformed to the requisites of Rule 1:4-4(b).


On December 23, 2020, plaintiff served an AOM and curriculum vitae of Joseph Fallon, M.D., board certified in internal medicine and endocrinology. Dr. Fallon opined, based upon his review of plaintiff’s complaint, “there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by one or more of the [d]efendants therein (including Dr. Singh . . . ) in the treatment, practice or work that is the subject of the [c]omplaint fell outside acceptable professional or occupational standards or treatment practices.” JSUMC again objected to the AOM, arguing Dr. Fallon failed to directly allege negligence on the part of a cognizable defendant and failed to rely on any treatment records.


In its Per Curium opinion filed on May 8, 2023, the Superior Court of New Jersey Appellate Division stated: “The motion judge’s order dismissing the complaint is supported by the record. First, plaintiff never amended the complaint to include Dr. Singh as a defendant. Dr. Fallon AOM concludes that Dr. Singh was negligent in his care and treatment of Lowe. But he is not a named defendant. Dr. Fallon’s AOM attempt to link Dr. Singh, a nonparty, to any alleged negligence was likewise fatally defective. Nor does Dr. Fallon’s AOM address the negligence of JSUMC, the only remaining defendant.”


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