New Jersey Justice Faustino Fernandez-Vina. Photo by Carmen Natale/ALM

The New Jersey Supreme Court has ruled that an affidavit of merit is required in a medical malpractice suit filed by a hospital patient who pulled out a breathing tube and refused to have it reinserted.

The justices said a jury could not reach a determination as to a nurse's responsibility under these circumstances without the benefit of expert opinion on the appropriate balance between patient autonomy and prescribed treatment. The patient was within her right to refuse reinsertion of the breathing tube, and the right to make decisions concerning one's body is protected by statute and by the federal constitutional right of privacy, the court said.

The ruling overturns an Appellate Division panel that found no expert opinion was needed because the need to reinsert the tube was a matter of common knowledge. The Appellate Division found a jury could use common knowledge to determine a nurse should take some action when a tube is dislodged.

The common knowledge exception to the Affidavit of Merit Statute applies when expert testimony is not required to prove a professional defendant's negligence, according to the court. In those few cases where a person of reasonable intelligence can use common knowledge to determine that there was no deviation from a standard of care, an expert is no more qualified to attest to the merit of a malpractice claim than a nonexpert, the court said.

"This is not one of those cases. Here, where a patient removed the tube herself and refused replacement, important questions about the procedures, protocols, and duties of a licensed nurse in these circumstances must be explained in order to establish a deviation in the standard of care," Justice Faustino Fernandez-Vina wrote for the court. "In addition, important considerations about patient autonomy complicate the standard-of-care analysis. A jury could not reach a determination as to a nurse's responsibility under these circumstances without the benefit of expert opinion as to the appropriate balance between patient autonomy and prescribed treatment."

Plaintiff Linda Cowley was a patient at Virtua Voorhees Hospital, and was the subject of a doctor's order to have a nasogastric tube inserted through her nose to deliver medicine and liquid food to her stomach. Although she removed the tube, Cowley later sued the hospital and nurses Robert Gibbons and Helene Curran over their decision not to reinsert it or consult with superiors.

In 2017,  Camden County Superior Court Judge Christine Orlando granted the defendants' motion to dismiss the case, 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. In 2018, the Appellate Division panel consisting of Judges Michael Haas, Garry Rothstadt and Greta Gooden Brown reversed, citing three federal cases holding that the common knowledge exception applied to acts of omission by medical personnel who failed to continually fulfill a doctor's orders.

But the state Supreme Court said the Appellate Division erred in finding the case is an obvious act of omission, and not an affirmative action that bespoke negligence.

"That approach allows plaintiffs to circumvent the Affidavit of Merit Statute by disguising complex negligence cases with common knowledge allegations as to acts of omission. Determining whether action should or should not have been taken is not enough. Jurors cannot be allowed to speculate as to whether a procedure conformed to the required professional standards of care," Fernandez-Vina wrote.

The case is more complex than simply a failure to follow a doctor's order, Fernandez-Vina wrote. The jury must determine what a nurse should do when a patient refuses reinsertion of a naso-gastric tube. Resolution of that standard of care requires an expert opinion, as well as an affidavit of merit, he wrote.

Mary Kay Wysocki of Parker McCay in Marlton, who represented Virtua and the two nurses, and Thomas Sacchetta of Sacchetta & Baldino in Woodbury, who represented Cowley, did not return calls about the ruling.