By this motion for summary judgment defendant seeks a dismissal of the complaint on the ground that the action is barred by virtue of the exemption from tort liability contained in N.J.S.A. 39:6A-8. In opposing the motion plaintiff contends that he has met the threshold requirement which renders the statutory exemption inapplicable.
The underlying facts relevant to a consideration of this motion are not in dispute. Plaintiff suffered a contusion of the right kidney, admittedly a soft tissue injury, as a result of the alleged negligent operation of a truck by defendant. Examination
and testing conducted in the emergency room of the hospital indicated a microscopic hematuria which prompted the attending physician to hospitalize plaintiff for the necessary supervised bed rest and care. Such hospitalization was prescribed by the treating physician as reasonable and necessary treatment of plaintiff's injury. Plaintiff was hospitalized for seven days, during which time further X-rays and blood tests were administered. He was discharged for office follow-up and in a few weeks had resumed his normal activities, suffering no permanent disability. The physician's charges for the treatment rendered to plaintiff was $150, and the hospital expenses approximated $1,000.
Defendant considers that the only medical expense incurred by plaintiff is the physician's bill of $150 and, as this is less than the requisite threshold, the statutory exemption from tort liability is applicable, thereby precluding plaintiff from seeking damages from defendant because of any injury resulting from the accident. This position is disputed by plaintiff, who contends that the cost of his hospitalization qualifies as a medical expense inasmuch as it was incurred as a "reasonable and necessary" expense resulting from the treatment prescribed by his physician. Thus, plaintiff asserts that he has met the threshold.
The exemption from tort liability provided by the statute is applicable to claims for soft tissue injury where the medical expenses incurred or to be incurred for the reasonable and necessary treatment of such injury is less than $200, exclusive of hospital expenses, X-rays and other diagnostic medical expense. N.J.S.A. 39:6A-8. Medical expense includes "expenses for medical treatment . . . hospital services, rehabilitation services, X-ray and other diagnostic services . . . medication and other reasonable and necessary expenses resulting from the treatment prescribed by persons licensed to practice medicine. . ." N.J.S.A. 39:6A-2. Hospital expenses mean the cost of a semi-private room, meals, services rendered in the care and treatment of patients, treatment by a physiotherapist and prescribed medical supplies. N.J.S.A. 39:6A-2.
While plaintiff acknowledges that hospital expenses are excluded in determining the threshold amount of medical expenses, he claims that such expenses should be considered as medical expenses when the hospitalization is prescribed by the treating physician as reasonable and necessary treatment for the injury sustained. It is asserted that the supervised care and bed rest, available only to plaintiff while in the hospital, was prescribed by his physician as reasonable and necessary treatment for his injury, and thus the cost of his hospitalization was a medical expense in accord with its statutory definition as including "other reasonable and necessary expenses resulting from the treatment prescribed" by a physician, and not an excludable hospital expense.
In support of his contention, plaintiff cites the case of Mazzoli v. Magee , 141 N.J. Super. 361 (Law Div.1976), which held that the cost of out-patient physiotherapy constituted "medical expense" rather than "hospital expense" and thus could be included in determining the amount of medical expense for threshold purposes under N.J.S.A. 39:6A-8. In so concluding, the court reasoned that the inclusion of the cost of physiotherapy treatment in defining hospital expenses in one section of the statute, N.J.S.A. 39:6A-2(b), while including "rehabilitation services" in the definition of medical expenses in subsection (e) of the statute, indicated a legislative intention to differentiate between in-patient and out-patient physiotherapy treatment, with the former being considered as a hospital expense and the latter as a medical expense. It was also suggested by the court that the cost of out-patient physiotherapy could be considered as other "reasonable and necessary expenses resulting from the treatment prescribed" by a physiotherapist and thus qualify as a medical expense for the purpose of meeting the threshold requirement. Acceptance of the validity of such reasoning is not conclusive of the issue presented in the subject case because of the distinguishing factual circumstances. While out-patient physiotherapy might be so classified as a medical expense, usual
and ordinary care and treatment rendered by a hospital to an in-patient suffering from a soft tissue injury is not in the same category.
Assuming, as we must, that plaintiff's hospitalization was considered by his physician as being necessary treatment, i.e. , supervised care and bed rest, for the injury sustained, this fact would not change the cost of such hospital treatment from a "hospital expense" to a "medical expense" for the purpose of determining whether or not the statutory exemption for tort liability is applicable. Although persons are hospitalized for a variety of reasons, a benefit received by all hospital patients is the supervised care and bed rest available to them during their hospitalization. Also, it is not uncommon for injured or ill persons to be hospitalized at times for observation and monitoring of their condition. Such admissions, a fortiori , had to have been considered necessary treatment by the admitting physician. There is no reason for concluding that the Legislature, in defining medical and hospital expenses and using these terms in the several ...