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In Haviland v. Lourdes Med. Ctr. of Burlington County, Inc., the Appellate Division addressed, in a matter of first impression, whether an Affidavit of Merit (“AOM”) is required for vicarious liability claims against a licensed facility for the alleged negligence of an employee, where the Affidavit of Merit Statute (the “Statute”), N.J.S.A. 2A:53A-26-29, applies to the licensed facility, but not the employee.

Plaintiff Troy Haviland (“Plaintiff”) underwent a radiological exam at Lourdes Medical Center of Burlington County, Inc. (“Lourdes”). According to Plaintiff, during the exam, a radiology technician instructed him to hold weights, contrary to the ordering physician's instructions. Plaintiff claimed he was injured holding the weights and, thereafter, required surgical repair of his left shoulder.

Plaintiff filed a complaint alleging medical negligence against the radiology technician and Lourdes, claiming that Lourdes was responsible for the actions of the radiology technician.  After Plaintiff filed his complaint, the trial court advised Plaintiff that he is required to submit an AOM against Lourdes, which falls within the definition of “Healthcare facility” under the Statute.

Plaintiff never filed an AOM. Instead, Plaintiff argued that an AOM was not necessary for the radiology technician, because a radiology technician does not fall within the definition of “licensed person” under the Statute. Plaintiff also argued that he was only proceeding on a theory of vicarious liability, not negligence, against Lourdes and, therefore, an AOM was not required.

When the deadline for the AOM passed, Lourdes filed a motion to dismiss, which the trial court granted, holding that Plaintiff was required to obtain an AOM from a radiologist.

Plaintiff appealed, and the Appellate Division reversed the trial court’s decision. The Appellate Division noted that it was undisputed that a radiology technician was not listed among the medical professionals who qualified as a "licensed person" under the Statute. Thus, the Appellate Division held, Plaintiff could have asserted a negligence claim against the radiology technician without obtaining an AOM.  The Appellate Division then reasoned that no AOM was required against Lourdes, since Plaintiff was only asserting a vicarious liability claim arising from the alleged negligence of a healthcare professional not covered by the Statute’s definition of a licensed person.