NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Hallmark Health Care, LLC is a licensed healthcare facility, as defined in N.J.S.A. 2A:53A-26(j), and the owner of defendant Pine Acres Convalescent Center (collectively defendant). Defendant moved for summary judgment dismissal of this negligence action because plaintiff Viola Davis1 failed to comply with the requirements of the affidavit of merit statute, N.J.S.A. 2A:53A-26 to-29. The November 21, 2014 Law Division order partially granted defendant's motion, dismissing any claim or "theory of a case that requires expert testimony"; however, plaintiff was permitted to proceed with "a common knowledge case."

On our leave granted, we limited review "to address whether an Affidavit of Merit is required under these facts." Following our consideration of the arguments presented, in light of the record, including the motion judge's amplification of his oral opinion, R. 2:5-1(b), and applicable law, we reverse and remand for entry of an order dismissing plaintiff's action.

These facts are gleaned from the record. Following her hospital discharge in March 2013, plaintiff entered defendant's rehabilitation facility to undergo physical therapy. On April 8, 2013, Stanford Davis visited plaintiff and found her unable to speak. Upon examination by defendant's staff, plaintiff was hospitalized. The underlying complaint, as amended, alleged while plaintiff was a patient in defendant's facility, "defendant[] did maintain, operate, control, inspect and use [its] premises in a careless and negligent manner, in a dangerous and hazardous manner and due to the negligence . . . plaintiff . . . sustained severe injuries on April 8, 2013." No additional certifications, affidavits, documents or admissible evidence elaborate on an alleged act or omission, the nature of causation, or the explicit injuries plaintiff suffered.

Despite defendant's demand for an affidavit of merit, plaintiff took no action.2 Following expiration of 120 days, but before the discovery end date,3 defendant moved for summary judgment, asserting it was a licensed facility; therefore, any alleged claim of negligence must be supported by an affidavit of merit. In opposition, plaintiff presented documents verifying plaintiff's death and sought the appointment of an administrator ad prosequendum.

During oral argument, discussion centered on a theory of plaintiff's case and counsel suggested plaintiff fell from her bed while in defendant's facility because the guard rails were not fully raised, suffering a fractured wrist or arm.4 Plaintiff maintained no expert was necessary to prove negligence as the matter involved common knowledge, thus obviating the need for an affidavit of merit.

Defendant countered by referencing an investigation summary by its insurance carrier, showing plaintiff's hospital admission was on April 15, 2013 to determine whether she suffered a stroke. X-rays taken in the hospital suggested a possible elbow fracture; however, plaintiff denied feeling pain, falling, or suffering any injury.

Relying on plaintiff's arguments regarding the possible nature of the action, the judge agreed plaintiff's lapse in failing to provide an affidavit of merit precluded a professional negligence action, but would not bar a basic fall claim that could proceed without expert testimony. Defendant appealed.

Whether plaintiff's complaint is exempt from the affidavit of merit requirement based on the common knowledge doctrine is a legal issue subject to our de novo review. See Triarsi v. BSC Grp. Servs., L.L.C., 422 N.J.Super. 104, 113 (App. Div. 2011). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not established to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The affidavit of merit statute requires a plaintiff who alleges professional negligence to provide an expert's affidavit stating the action has merit. N.J.S.A. 2A:53A-27. The statute is consistent with the general requirement that expert testimony is required to establish the standard of care, which is an essential element of a plaintiff's professional negligence claim. Specifically, the statute states in pertinent part:

Generally, "the affidavit of merit statute is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint, but with whether there is some objective threshold merit to the allegations." Hubbard v. Reed, 168 N.J. 387, 394 (2001) (internal quotation marks and citation omitted). The underlying rationale of the statute is "to require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of the litigation." Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 421 (2010) (internal quotation marks and citation omitted). Expert testimony about an alleged deviation from a reasonable standard of care is required whenever a licensed person exercised professional responsibilities and judgment before acting or failing to act. Aster v. Shoreline Behavioral Health, 346 N.J.Super. 536, 542 n.4 (App. Div. 2002).

A plaintiff's failure to provide an affidavit of merit within the prescribed statutory period generally requires dismissal of the underlying action with prejudice, as the plaintiff is deemed to have failed to state a cause of action. N.J.S.A. 2A:53A-29; Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998) (requiring dismissal with prejudice for failure to comply with the affidavit of merit statute). The procedural exceptions to timely compliance are inapplicable to the facts at issue. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003) ("[T]wo equitable remedies . . . temper the draconian results of an inflexible application of the statute. A complaint will not be dismissed if the plaintiff can show. . . he has substantially complied with the statute. Moreover, a complaint will be dismissed without prejudice if . . . extraordinary circumstances . . . explain noncompliance.") (citations omitted).

Another circumstance where an affidavit of merit is not required results when the matter is guided by the common knowledge doctrine. The common knowledge doctrine applies in circumstances "where `jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). Also, an affidavit of merit is unnecessary in actions advanced against a licensed person claiming ordinary negligence, not malpractice. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001). Where "defendant's careless acts are quite obvious, a plaintiff need not present expert testimony at trial to establish the standard of care." Ibid.

Determining whether a matter alleges professional negligence, ordinary negligence, or otherwise fits within the common knowledge exception, demands scrutiny of the legal claims alleged. Couri v. Gardner, 173 N.J. 328, 340-41 (2002) ("It is not the label placed on the action that is pivotal but the nature of the legal inquiry."). "If jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiff's complaint." Hubbard, supra, 168 N.J. at 395. Accordingly, a judge must consider "whether a claim's underlying factual allegations require proof of a deviation from a professional standard of care," or ordinary negligence, as only the former claims are subject to the statutory requirements. Couri, supra, 173 N.J. at 341.

Our Supreme Court offers this guidance:

Common knowledge cases involve obvious or extreme error. For example, the defendant dentist in Hubbard pulled the wrong tooth, Hubbard, supra, 168 N.J. at 396, and the defendant doctor in Palanque performed unnecessary surgery because he read the wrong patient's lab report, Palanque, supra, 168 N.J. at 407-08. "The basic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners." Estate of Chin, supra, 160 N.J. at 470 (internal citation and quotation marks omitted). The nature of the negligence does not trigger the primary goal of requiring an affidavit of merit, "that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation." Palanque, supra, 168 N.J. at 406. See also Bender v. Walgreen Eastern Co., Inc., 399 N.J.Super. 584, 590-91 (App. Div. 2008) (finding pharmacist filling prescription with wrong drug was subject to "common knowledge" exception"); Jones v. Stess, 111 N.J.Super. 283, 289-90 (App. Div. 1970) (finding common knowledge exception applicable where podiatrist dropped instrument on patient's leg resulting in amputation).

In an effort to avoid unnecessary delay and resolve disputes between the parties regarding the need to provide an affidavit of merit, and to avoid dismissal of meritorious claims brought in good faith, Ferreira, supra, 178 N.J. at 150-51, the court has "developed a prophylactic measure to encourage the timely filing of affidavits." Paragon, supra, 202 N.J. at 423 (citing Ferreira, supra, 178 N.J. at 154-55). A Ferreira Conference is "an accelerated case management conference [to] be held within ninety days of the service of an answer" in all professional negligence cases to "ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system — to shepherd legitimate claims expeditiously to trial[.]" Id. at 423 (alteration in original) (internal citation and quotation marks omitted). In this way, any factual question regarding a defendant's status as related to the allegations of negligence in a plaintiff's complaint can be resolved. Murphy v. New Road Const., 378 N.J.Super. 238, 241-42 (App. Div.), certif. denied, 185 N.J. 391 (2005). In the absence of the court initiating a Ferreira conference, plaintiff's counsel should seek its scheduling. Otherwise, "[b]y not producing an affidavit of merit, plaintiff may be seen to have placed all his eggs in the ordinary negligence basket without alleging professional negligence as well." Murphy, supra, 378 N.J. Super. at 243. Although a plaintiff aware of the affidavit of merit requirements is free to conclude an affidavit of merit is not necessary, if that conclusion is incorrect and the requisite time period for filing has passed, the complaint must be dismissed. Paragon, supra, 202 N.J. at 423 (stating "attorney's inadvertence in failing to timely file an affidavit will generally result in dismissal with prejudice") (citation omitted); Triarsi, supra, 422 N.J. Super. at 121.

Plaintiff insists this is an ordinary negligence case and has styled the complaint as a premises liability action, suggesting plaintiff fell in defendant's facility. However, evidential material describing the circumstances of a fall, the nature of defendant's alleged negligence, the extent of plaintiff's injuries, if any, or causation are conspicuously absent. At argument before the trial judge, plaintiff's counsel offered his view of possible scenarios supporting the elements of defendant's liability, but these unsubstantiated assertions are insufficient to support a purported cause of action. The limited established facts only show plaintiff was confined to defendant's professional facility for care and rehabilitation, was later found to need hospitalization, and during that hospital stay was diagnosed with a possible fracture. There is no timeframe of when the injury occurred. Assuming counsel's supposition plaintiff fell because bedrails were not properly employed, that claim implicates professional judgment of the licensed professionals charged with determining plaintiff's needed level of care. See Aster, supra, 346 N.J. Super. at 542 n.4 (advising the use of restraints in a hospital setting "entail[ed] the care with which licensed professionals were exercising their professional responsibility and judgment."). In fact, defendant orally responded to this supposed allegation of negligence, by asserting defendant made an assessment upon plaintiff's admission concluding she was not at high risk of falling and therefore was permitted conveniences to allow mobility. Thus, determinations of whether and how to continue monitoring plaintiff, including the use of full bedrails, and whether defendant's staff was negligent in deciding a full-rail was unnecessary, implicate professional judgment, and are beyond the common knowledge exception and require expert testimony.

Our decision does not accept the broad proposition advocated by defendant that any action against a licensed professional mandates an affidavit of merit be supplied. Rather, it centers on the limited facts at hand and accepts what plaintiff has offered as the theory of her negligence case, which we conclude is a matter of professional judgment.

Contrary to the motion judge's decision, we cannot discern an ordinary negligence cause of action from this record. Even after an indulgent reading of this complaint and all evidence of record, there are no facts supporting a legally sufficient cause of action. Green v. Morgan Props., 215 N.J. 431, 451-452 (2013). In fact, an ordinary negligence cause of action is not "suggested" by these facts. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). No evidence is offered to show plaintiff slipped on liquid not properly cleaned-up or tripped on an errant object dropped in her room by a staff member. Frankly, the record is devoid of evidential support, facts, or even certified allegations plaintiff's fall occurred within defendant's facility or that a fall caused alleged injury. See Hubbard, supra, 168 N.J. at 395, ("[T]he threshold of merit should be readily apparent from a reading of the plaintiff's complaint.").

Reliance on counsel's speculative and unsupported arguments was erroneous. See, e.g., Sellers v. Schonfeld, 270 N.J.Super. 424, 427 (App. Div. 1993) (stating "only the affidavit together with properly certified depositions, answers to interrogatories, or admissions can supply facts outside the record that are not judicially noticeable[]" on summary judgment).

Plaintiff's criticism of such a result as one shielding defendant from likely ordinary negligence is rejected. Were plaintiff in doubt regarding the need for an affidavit of merit, a request for a Ferreira conference would have resolved any question and would have allowed the parties and the trial judge to define the contours of the matter. Triarsi, supra, 422 N.J. Super. at 118-22.

Reversed.