Plaintiff's decedent succumbed to the COVID-19 virus in May 2020. The Estate claims the decedent's death was a result of defendants' "negligent, grossly negligent, careless and reckless actions and omissions" in discharging his wife, from whom he allegedly contracted the disease, from defendant long-term care facility in April 2020, while the result of her PCR test was pending. Defendants notified the decedent's wife, their patient, and the decedent of the patient's positive test upon defendants' receipt of the result two days after her discharge. The decedent tested positive for the virus shortly thereafter. Defendants' patient survived her bout with the virus; the decedent tragically did not.
The court reverses the denial of defendant health providers' motions to dismiss plaintiff's medical negligence, wrongful death and survival claim, finding, contrary to plaintiff's assertion, that there is no well-established common law rule in New Jersey that a "physician has the duty to warn third persons against possible exposure to contagious or infectious diseases," and that plaintiff has not otherwise pled any recognizable derivative duty defendants owed to the decedent.
Although orders granting Rule 4:6-2 motions are ordinarily entered without prejudice, the Legislature's decision in the New Jersey COVID-19 Immunity Statute, L. 2020, c. 18, to temporarily limit the scope of whatever duty we might recognize defendants owed their patient and, derivatively, the decedent, to one of simply avoiding gross negligence during the height of the COVID-19 pandemic leaves plaintiff unable to state a claim on the facts alleged. It is not possible for a reasonable jury to find defendants were not simply negligent, but grossly negligent or reckless in discharging the decedent's wife to his care in April 2020, before knowing the result of her pending PCR test.