In this medical malpractice action, plaintiff, as administratrix ad prosequendum for the estate of decedent, sued a nursing facility and a hospital alleging negligent care that resulted in pressure wounds and, ultimately, decedent's physical decline and death. Plaintiff asserted direct claims of administrative negligence against both facilities as well as claims based on vicarious liability for nursing malpractice. Plaintiff served a single affidavit of merit ("AOM") executed by a registered nurse who opined that the nursing home, the hospital, and members of their nursing and nursing administrative staff deviated from the applicable standards of care. The AOM did not distinguish between the nursing staffs at the separate facilities and did not name any individual nurses.
The trial court conducted two Ferreira conferences. Defendants objected to the AOM because the nurse who executed it was not qualified to render an opinion as to direct administrative negligence claims against the facilities and the AOM did not identify any individual nurses for whom the facilities could be held vicariously liable. Plaintiff did not seek to conduct any pre-AOM discovery and declined the opportunity to serve a supplemental AOM. Defendants moved to dismiss for failure to serve an appropriate AOM, and the trial court dismissed the complaint on that basis. Plaintiff subsequently settled her claims against the hospital. On appeal, plaintiff abandoned her direct administrative negligence claim against the nursing home and proceeded based only on vicarious liability.
The court affirmed, concluding the AOM was not sufficient to support plaintiff's vicarious liability claim because it indiscriminately combined the nursing staffs of two separate facilities and did not identify any individual nurses. The court also concluded plaintiff's claim was in essence an administrative negligence claim because it was based on the nursing home's systemic failure to provide adequate care rather than a claim based on the negligence of any individual nurses.