New Jersey Appellate Court Addresses Application of Affidavit of Merit Negligence Claim Against A Physician


On August 30, 2023, a New Jersey appellate panel issued an opinion in M.M. v. Atl. Health Sys., 2023 N.J. Super. Unpub. LEXIS 1489 (App. Div. Aug. 30, 2023) clarifying the affidavit of merit requirement pertaining to suits alleging a failure-to-report suspected child abuse. The decision in M.M. v. Atl. Health Sys. held an affidavit of merit is not required for a plaintiff to prove a failure-to-report case if there is a reasonable basis for believing child abuse had occurred – regardless of profession.

In M.M. v. Atl. Health Sys., the plaintiff filed a complaint alleging that a pediatrician, who was not her child’s doctor, possessed information that would reasonably lead her to believe that the plaintiff’s gastroenterologist was acting inappropriately with or assaulting minor female patients. The plaintiff asserted the physician was negligent in failing to report the gastroenterologist to the Division of Child Protection and Permanency (DCPP) pursuant to N.J.S.A. 9:6-8.10. The pediatrician demanded the plaintiff provide an affidavit of merit, and moved to dismiss the plaintiff’s claim based on the failure to provide an affidavit of merit. The physician’s motion to dismiss was granted by the motion judge who concluded the plaintiff was required to provide an affidavit of merit regarding this failure-to-report claim.

On appeal, the Superior Court reversed, finding the physician could not escape the negligence claim against her on this basis. The panel specifically noted “[b]ecause the alleged underlying harmful conduct — the failure to report suspected child abuse under [New Jersey law] — does not implicate the standards of care within” the physician’s profession, the panel held the motion judge erred in concluding the plaintiff was required to provide an affidavit of merit to support her claim. The panel also added the duty to report is not specific to a profession, pointing to L.A. v. New Jersey Division of Youth and Family Services, 217 N.J. 311 (2014), which involved an ER physician's alleged failure to report suspected abuse of his pediatric patient. In that case, the New Jersey Supreme Court affirmed that the law provides the standard that "any person having reasonable cause to believe that a child has been suspected of child abuse ... shall report the same immediately." The panel reaffirmed in its opinion that standard of care applies to everyone, including doctors.

As to their reversal, the panel emphasized their decision was only limited to the affidavit of merit requirement and was expressing no opinion as to whether the plaintiff has an independent cause of action for failure to report against the physician who had no doctor patient relationship with plaintiff.

Comment: All professionals whose work interfaces with children should be mindful of this recent decision in their ongoing practice, regardless of whether the suspected abuse concerns one of their own clients, students or patients. This recent decision makes clear that a failure-to-report claim will not be dismissed at the pleadings stage for a plaintiff’s failure to provide an affidavit of merit if the professional being sued had a reasonable basis for believing child abuse had occurred.

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