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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a precedent-setting case, on November 9, 2022, for the first time, a New Jersey appeals court ruled that plaintiffs in medical malpractice cases do not need an affidavit of merit before filing a claim against a licensed practical nurse (LPN). In many states, Florida included, licensed practical nurses (LPNs) and registered nurses (RNs) are included in coverage by the state’s medical malpractice pre-suit screening act. This requires a plaintiff to conduct a pre-suit screening and obtain an affidavit of expert opinion from a similar expert witness that states that the nurse has committed malpractice that harmed the patient. without such an affidavit, the suit is not permitted.

No distinction is usually made between the rights of a licensed practical nurse and a registered nurse. After all, they both are required to have licenses from the state.

In this case, the Superior Court of New Jersey,  Appellate Division, said that an LPN is not included in the “licensed person” definition under the state’s affidavit of merit statute. Additionally, the court’s opinion stated that an LPN could not use the lack of such an affidavit to dodge a medical malpractice suit. In this case, the malpractice suit was brought by a widower who says his wife died due to bad advice given by the LPN about how to treat his wife’s pain.

The Details of the Lawsuit.

The plaintiff claimed that the defendant (an LPN) responded to his complaints about his wife being in pain and unable to eat following her colon surgery by blaming the issue on “post-operative gas. “After ignoring numerous messages he left regarding her condition, the LPN allegedly told the husband (plaintiff) to give his wife, Pepto Bismol. The following day, his wife died, according to the lawsuit.

In July 2020, the plaintiff filed a medical malpractice claim as his wife’s estate administrator. The lawsuit originally named as defendants the doctor, Virtua Surgical Group, and an unknown nurse. Following discovery in the case, the plaintiff dismissed the claims against the other defendants and named only the LPN as a defendant. According to the appellate opinion, he alleged that the defendant was negligent in providing medical advice and failing to consult with her doctor.

You can view the court’s opinion in full here on our website.

Is a Licensed Practical Nurse a “Licensed Person” Covered by the Statute?

In New Jersey professional negligence cases, plaintiffs must file an “affidavit of merit,” or AOM, signed by a licensed medical professional with training or credentials similar to those of the professional to be sued. This comes from a tort reform law passed by the state government in 1995. The statute was originally designed to provide a balance between reducing frivolous lawsuits and permitting injured plaintiffs recovery for meritorious claims. It is similar to requirements that exist in many states.

According to the appellate court’s opinion, a plaintiff claiming “malpractice or negligence by a licensed person” must file an “affidavit of an appropriate licensed person” who can attest that there is a “reasonable probability” that defendant’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” This is required before an actual suit is allowed.

The defendant argued that since the nursing portion of the statute defines “the practice of nursing” for “a registered professional nurse,” the Legislature intended for licensed practical nurses to be included. However, the appeals court held that the tort reform package would not protect her from the lawsuit because she did not fall within the definition in the law. She was not a registered professional nurse. Instead, she was a different type of nurse.

In his written opinion for the court, New Jersey Superior Court Judge Robert J. Gilson considered whether a licensed practical nurse is a “licensed person” covered under the AOM statute. “The AOM statute expressly uses the term ‘a registered professional nurse.’ Yet, nowhere in that definition of a registered professional nurse is there a reference to a licensed practical nurse,” he added.

Gilson stated in the opinion that the New Jersey Legislature was aware that it had separately defined the two different types of nurses. Therefore, the statute did not apply to or protect the LPN, and the plaintiff was allowed to pursue claims without an AOM. Nevertheless, the court said, the plaintiff must still prove the defendant’s negligence to succeed.

Click here to view the opinion in full.

Click here to read one of our related blogs about legal issues LPNs often face.

The New Jersey Case is Probably Not a Precedent for Most States.

Usually, the test for whether or not malpractice or professional negligence has been committed for legal purposes is whether or not the individual is a member of a learned profession. This is usually indicated by the requirement of a professional license to practice that profession. Using this definition, both a licensed practical nurse and a licensed registered nurse are considered professionals, and their “professional negligence” is considered malpractice covered by medical (nursing) malpractice laws.

Moreover, the laws in some states, such as Florida, define which professionals are covered by their medical malpractice presuit screening act by listing the licensing laws to which the medical malpractice presuit screening act applies. Thus, in Florida, Section 766.202(4), Florida Statutes refer to those licensed by Chapter 464 (Part I), Florida Statutes. Both licensed practical nurses and registered nurses are licensed in accordance with that Chapter of Florida Statutes. Thus both are covered by the Florida Medical Malpractice Presuit Screening Act.

Contact Health Law Attorneys With Experience Representing Nurses and Handling Licensing Issues.

If you are applying for a nursing or healthcare license, have had a license suspended or revoked, or are facing imminent action against your license, you must contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood. It is not recommended that you attempt to pursue these matters without the assistance of an attorney. The Health Law Firm routinely represents nurses, physicians, dentists, medical groups, clinics, and other healthcare providers in personal and facility licensing issues. If you have received a notice that a complaint has been filed against you or that you are under investigation by the department of health or your licensing board, we routinely provide legal representation in such matters; often, there may be insurance coverage that may pay for your legal defense.

To contact The Health Law Firm, call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Karpan, Andrew. “No Affidavit Needed To Sue ‘Practical’ Nurses, NJ Court Says.” Law360. (November 9, 2022). Web.

Murphy, Colleen. “NJ Appeals Court: No Affidavit of Merit Needed for Negligence Claim Against Licensed Practical Nurse.” Law.com. (November 10, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Employment with The Health Law Firm. The Health Law Firm is always seeking qualified attorneys, paralegals and legal staff interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified legal professional or secretary, who is interested, please forward your cover letter and resume to: [email protected] or fax them to (407) 331-3030.

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