Cowley v. Virtua Health Sys., 193 A.3d 330

Linda Cowley was admitted to Virtua for acute cholecystitis; a physician ordered a nasogastric (NG) tube. The NG tube was placed and, within two days, became dislodged when Linda pulled it out and refused replacement according to records.
Plaintiffs allege nurses failed to reinsert the NG tube or contact the ordering physician, and that this omission led to aspiration, postoperative complications, and additional diagnoses.
Plaintiffs filed a medical-malpractice complaint but did not serve an Affidavit of Merit (AOM), asserting the claim fell within the AOM statute’s common-knowledge exception.
Defendants moved to dismiss for failure to serve an AOM; the trial judge granted dismissal with prejudice, finding the common-knowledge exception inapplicable because the case implicated nursing standard-of-care questions requiring expert proof.
On appeal, the Appellate Division reviewed de novo whether the common-knowledge exception applies and reversed, holding that the nurses’ alleged failure to take any action after the NG tube became dislodged is within the narrow common-knowledge exception and thus an AOM was not required at this stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the common-knowledge exception to the AOM requirement applies	Common sense suffices to show nurses’ negligence for taking no action after NG tube dislodged; no expert needed	Nurses’ duties after tube removal involve professional judgment and standards of care; expert testimony (AOM) required	Reversed: exception applies to the limited allegation that nurses took no action after dislodgment; AOM not required at this stage
Whether dismissal with prejudice was appropriate for failure to serve AOM	Dismissal improper because exception applies	Dismissal proper because plaintiff failed to serve AOM	Reversed: dismissal improper as to the preserved omission claim
Scope of preserved claim after reversal	Preserve only allegations tied to nurses’ failure to act after dislodgment	N/A	Court limits survival to the specific omission (failure to act) — other bases not revived
Application of AMS’s remedial purpose to borderline common-knowledge claims	AMS should weed out frivolous suits but not bar meritorious claims demonstrable by common sense	AMS’s AOM threshold must be enforced to prevent unmeritorious suits	Court favors allowing meritorious claims demonstrable by lay understanding to proceed without AOM, consistent with AMS purpose

Buck v. Henry, 207 N.J. 377 (clarifies AOM statutory requirement and purpose)
A.T. v. Cohen, 231 N.J. 337 (describes AOM as required threshold and recognizes equitable exceptions)
Hubbard v. Reed, 168 N.J. 387 (explains common-knowledge exception narrow scope and recommends filing AOM when uncertain)
Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454 (applies common-knowledge exception where negligence was obvious to lay jurors)
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (authorizes court-conducted conference to resolve AOM disputes)
Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415 (describes AMS purpose to weed out meritless claims)
Meehan v. Antonellis, 226 N.J. 216 (discusses dual purposes of AMS: eliminate unmeritorious claims and permit meritorious ones to proceed)
Alan J. Cornblatt, PA v. Barow, 153 N.J. 218 (states AOM is an element of a malpractice claim)
Bender v. Walgreen Eastern Co., 399 N.J. Super. 584 (applies common-knowledge exception in pharmacy context)