The Impact of Affidavits of Merit on Professional Liability Claims Against an LPN

Addressing an issue of first impression, on November 9, 2022, a unanimous 3-judge panel of the New Jersey Appellate Division held that a Licensed Practical Nurse (LPN) was not a “licensed person” as defined in and covered by the Affidavit of Merit (AOM) Statute (N.J.S.A. 2A:53A-26 to -29). Gilligan v. Junod, No. A-1907-21, 2022 N.J. Super. LEXIS 134 (Super. Ct. App. Div. Nov. 9, 2022). Accordingly, the Court concluded that an Affidavit of Merit was not required to pursue a claim of professional negligence against an LPN.

In 1995, the New Jersey legislature enacted the AOM Statute which was intended to reduce the filing of “frivolous” professional liability and medical malpractice lawsuits.  The Statute requires that a plaintiff provide an affidavit from a licensed professional attesting that the defendant's actions deviated from the accepted standards of care.  The affidavit must be signed by a licensed professional in the same field as the defendant, and filed within 60 days (or 120 days if shown to have good reason) from the time the defendant files an answer to the complaint.  Failure to comply with the AOM Statute will result in the dismissal of the Complaint against the defendant with prejudice and amounts to a substantive dismissal on the merits of the case rather than a procedural dismissal.

The key, however, is that the breadth of licensed professionals, to which the AOM Statute applies, is limited to 16 delineated professions or a health care facility. N.J.S.A. § 2A:53A-26.   One of the identified "licensed person[s]" in the AOM Statute is "a registered professional nurse pursuant to P.L.1947, c. 262 (C.45:11-23 et seq.)." N.J.S.A. 2A:53A-26(i). The Statute identified in that subsection is the nursing licensure statute (the Nursing Statute), N.J.S.A. 45:11-23 to - 84. The Nursing Statute defines "[t]he practice of nursing" for "a registered professional nurse." N.J.S.A. 45:11-23(b).  The Nursing Statute contains a separate definition for an LPN.  The Court specifically set forth the scope of practice differences between a Registered Nurse (RN) and an LPN as set forth in the Nursing Statute, including that an LPN works under the direction of "a registered nurse or licensed or otherwise legally authorized physician or dentist." The Court noted that its review of the express language in the AOM Statute in conjunction with the Nursing Statute established that the Legislature was well aware of the differences in practice between an RN and an LPN and did not include LPNs in the list of those professions covered by the Statute.

It is important to note that while an AOM is not required to pursue a lawsuit against an LPN, the inapplicability of the AOM Statute does not relieve the Plaintiff of the obligation of obtaining an expert report to establish the applicable standard of care for an LPN, a deviation from the standard of care, and that the deviation proximately caused plaintiff’s injuries. 

If you have any questions on the Affidavit of Merit Statute and its definition of licensed professionals with respect to professional liability claims, please contact us at 732-545-4717.