Court Rules “Affidavit of Merit” Not Required in Claim Against Psychiatrist for Failure to Report Child Abuse

By Michael Zerres

The United States District Court for the District of New Jersey recently ruled that, while an Affidavit of Merit must normally be served in action for negligence or malpractice against a licensed psychologist and that the failure to timely do so may result in the action being dismissed pursuant to NJSA 2A:53A-27, such an Affidavit is not required in a lawsuit filed against a licensed medical professional where the allegation stems from the failure of the physician to report child abuse as required by NJSA 9:6-8.10.

In the matter of Carter v Lewis, 08-cv-1301, District Court Judge Joel A. Pisano ruled that New Jersey has a reporting statute that states that any person having reasonable cause to believe that a child has been abused has a duty to report such abuse to the Division of Youth and Family Services. This reporting requirement applies to all citizens, not just health care providers. As a result, plaintiff’s claim in Carter against Dr. Jeffrey Allen does not sound in professional negligence, thereby triggering the requirement to serve an Affidavit of Merit, but, rather, is a claim based only in ordinary negligence as the reporting statute in question applies to everyone. As such, there is no requirement that an Affidavit of Merit be served.

Therefore, the Court also ruled that Dr. Allen’s attempt to dismiss the plaintiff’s complaint for failure to serve an Affidavit of Merit must be denied.

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