Manuel H. Greenberg, J.c.c., Temporarily Assigned.
Plaintiffs' amended complaint sets forth that their decedent was subjected to malpractice on the part of defendant Dr. Josiah Calvin McCracken, Jr., while a patient in defendant hospital, leading to her death. In addition to setting forth a claim against the doctor, claim is also made against the hospital as well as the administrator, board of directors and the medical staff thereof on the ground that they knew or should have known that Dr. McCracken was not competent to perform the surgical procedure on the decedent which he did, but they nevertheless permitted him to do so and allowed him to remain on the case when the situation was obviously beyond his control.
Defendants hospital, administrator, board of directors and medical staff have moved to dismiss the amended complaint for failure to state a claim upon which relief can be granted. R. 4:6-2. On motion New Jersey Hospital Association was permitted to appear as amicus curiae upon its assertion of the important public interest of the case as well as the difficult and novel legal issues which it states must be resolved.
The amended complaint alleges in substance, among other things, that the board of directors and administrator had a duty to provide and maintain competent medical personnel for patients at the hospital and to admit and allow only those physicians duly qualified and competent to exercise and have privileges at the hospital; that the medical staff had the duty to investigate and then recommend that only licensed, capable and qualified physicians exercise the various privileges at the hospital; that those defendants knew or should have known by the exercise of reasonable care and diligence that Dr. McCracken was not competent to perform the abdominal surgery that he performed on plaintiffs' decedent; that they nevertheless permitted and allowed him to carry out the surgery and, moreover, allowed him to remain on the case when it was obvious that the situation had gone completely beyond his control and competence, and
that the negligence of said defendants directly contributed to the plaintiffs' damages.
There appear to be no reported cases in this State dealing squarely with the issue presented. Under such circumstances we must look to general principles of law as well as decisions of other jurisdictions for guidance. Bush v. Bush , 95 N.J. Super. 368, 373 (Law Div. 1967). At the outset, it must be clearly noted that the liability which is sought to be imposed is not a vicarious one with respect to the alleged negligence of Dr. McCracken. There is no allegation in the amended complaint that he was an employee of any of the other defendants. Generally a hospital is not liable for the negligence of a doctor who is not a hospital employee. Thus, at 41 C.J.S., Hospitals , § 8 at 346, it is stated:
Liability of a private hospital for the negligent acts of the members of its professional staff must be predicated on the doctrine of respondeat superior. Accordingly a private hospital is not responsible for any default on the part of a physician or surgeon who practices his profession as an independent agent, and, where a patient employs a physician or surgeon not in the employ of the hospital, the hospital is not liable for his negligence.
Here, however, the moving defendants are charged with wrongdoing separate and distinct from that of Dr. McCracken, albeit that plaintiffs would obviously have to establish wrongdoing on the part of that doctor in order to prevail against the other defendants.
This is a motion directed to the allegations of the amended complaint. The allegations are of various duties on the part of the defendants which were allegedly negligently violated, resulting in damages. "Actionable negligence involves breach of duty and resulting damage." Stanley Co. of America v. Hercules Powder Co. , 16 N.J. 295, 315 (1954). The theory of the cause of action pleaded in the amended complaint is that the moving defendants by their tortious actions (or inactions) created a situation the natural and probable consequences of which were harm of the type which
resulted. In Menth v. Breeze Corporation, Inc. , 4 N.J. 428 (1950), the Supreme Court stated:
There may be any number of causes and effects intervening between the first wrongful act and the final injurious occurrence and if they are such as might, with reasonable diligence, have been foreseen, the last result as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. A tort-feasor is not relieved from liability for his negligence by the intervention of the acts of third persons, * * * if those acts were reasonably foreseeable. The theory being that the original negligence continues and operates contemporaneously with an intervening act which might reasonably have been anticipated so that the negligence can be regarded as a concurrent cause of the injury inflicted. One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof although ...