On January 10, 2005, the U.S. District Court for the District of New Jersey agreed with a state prisoner?s contention that the failure of Prison Health Services (PHS) to monitor her lithium levels fell under the common knowledge exception of N.J.Stat.Ann. § 2A:53A-27, and granted her motion for reargument.

Upon admission to New Jersey?s Camden County Jail on August 13, 2002, plaintiff Debra Bryan informed intake personnel that she was taking lithium as part of her treatment regimen for bipolar disorder. While at the jail Bryan began experiencing various medical problems, including ?nausea, vomiting, swollen ankles, aches and pains, confusion, pressure behind her eyes and ears, rapid and unexplained weight gain, and acute abdominal pain.? On September 28, 2002, Bryan was transferred to a hospital where ?blood and laboratory tests determined that her lithium level was three times the accepted maximum safe level and that she was suffering from lithium toxicity.?

Bryan sued PHS (the jail?s medical provider), Dr. Amira Shah and multiple other defendants, claiming they twice failed to perform blood tests that had been ordered by a doctor, and that such negligence resulted in heart failure, renal complications and mental anguish. She made claims under both state and federal law.

On October 12, 2004, the district court dismissed Bryan?s state law claims with prejudice for failing to timely file an Affidavit of Merit as required by § 2A:53A-27. Bryan moved for reargument.

The district court overturned its own decision and granted Bryan?s motion, holding that it had failed to consider the ?common knowledge exception? of § 2A:53A-27.

Section 2A:53A-27 requires that plaintiffs in a medical malpractice claim serve defendants with an Affidavit of Merit within 120 days. The statute further provides, however, that an affidavit is not required in instances where the professional negligence would be obvious to a layperson.

Although application of the exception is limited, the court held that it applied in Bryan?s case because an ordinary juror would have no problem determining ?whether or not an alleged failure to fulfill or complete prescriptions, orders and the like of the treating doctor deviates from the standard of care.? Thus, the court held, reargument was appropriate since ?consideration of the common knowledge exception ?might reasonably have resulted in a different conclusion.?? See: Bryan v. Shah, 351 F.Supp.2d 295 (D. N.J., 2005).

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