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Brien v. Lomazow

Decided: August 4, 1988.

PHILIP BRIEN, M.D., PLAINTIFF-APPELLANT,
v.
STEVEN LOMAZOW, M.D., JOHN DOE (A FICTITIOUS NAME FOR A REAL PERSON WHOSE ACTUAL IDENTITY IS UNKNOWN PURSUANT TO R. 4:26-4) AND RICHARD ROE (A FICTITIOUS NAME FOR A REAL PERSON WHOSE TRUE IDENTITY IS PRESENTLY UNKNOWN PURSUANT TO R. 4:26-4), DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Essex County.

O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

Plaintiff Philip Brien, M.D., appeals from the dismissal of his complaint filed against defendant Steven Lomazow, M.D. We affirm.

Plaintiff's complaint alleged various torts as a result of a report defendant made against plaintiff with the New Jersey State Board of Medical Examiners (hereafter Board) and the Attorney General's Office. Defendant advised a Deputy Attorney General of a patient's statement that plaintiff had molested her while performing a medical procedure. The report resulted in an investigation by the Attorney General's Office, which

ultimately filed a complaint against plaintiff on behalf of the Board seeking revocation of his license to practice medicine. Both the patient whose complaint defendant reported and four other patients testified against plaintiff at a hearing before an Administrative Law Judge (hereafter ALJ). However, the ALJ recommended that the complaint be dismissed in the absence of sufficient credible evidence, and the Board accepted the recommendation. Thus, the administrative proceedings were terminated in favor of plaintiff. A judge of the Law Division subsequently granted summary judgment dismissing plaintiff's civil action which was filed after termination of the administrative proceedings.

I.

Plaintiff's complaint filed against defendant in the Law Division sought compensatory and punitive damages, interest, attorneys' fees and costs of suit. The first count alleged that defendant negligently made false allegations concerning plaintiff to the Board of Medical Examiners, and that such allegations caused charges to be filed against plaintiff seeking revocation of his license to practice medicine. It further alleged that plaintiff suffered extraordinary emotional stress, sustained damage to his reputation and expended substantial amounts of money to defend himself against such charges, which were ultimately dismissed by the Board.

In the second count, plaintiff charged that the statements "were made with knowledge of their falsity or in willful, wanton or reckless disregard of their truth or falsity." The third count alleged that defendant's complaint to the Board was made "falsely, maliciously, and without probable cause." The fourth count charged that defendant's negligent misstatements of fact caused plaintiff to suffer emotional distress. The third and fourth counts also alleged substantial damage to plaintiff's "personal and professional reputation." The fifth count alleged that the misstatements of fact were made "intentionally" and

with the design to injure plaintiff's reputation and cause him to lose his medical license.

The sixth and eighth counts alleged that defendant, through his own conduct, and in conspiracy with other unknown doctors, sought to interfere with plaintiff's "prospective economic advantage." The seventh count charged that defendant's actions were "of such [a] nature as to be violative of standards of civilized human conduct" and amounted to an outrage.

Pursuant to an order of the court, plaintiff subsequently filed a "more definite statement pursuant to R. 4:6-4" in which he stated that the allegations defendant made with the Board, to the effect that plaintiff "committed sexual assaults and . . . acts of sexual molestation and had improper sexual contact with patients," "were untrue, were negligently made and were made with reckless disregard of their consequences and were [motivated] by and in furtherance of the economic interests of the Defendant."

II.

The following was developed on defendant's motion for summary judgment. Since 1971, plaintiff has been associated as a physiatrist with Crippled Children's Hospital (hereafter hospital) in Newark. Defendant, a neurologist, became associated with the hospital in late 1981 or early 1982. At the time defendant first became associated with the hospital, plaintiff and Dr. Chanderana were the only physicians performing electromyograms (hereafter "EMG"). Defendant subsequently received permission to perform EMGs at the hospital. Hospital records indicate that he performed EMGs as of January 14, 1983. Plaintiff and Dr. Chanderana lodged objections to his performing EMGs at a hospital executive board meeting on February 14, 1983.

On May 19, 1982, Linda Scheland, a patient at the hospital, complained that plaintiff had molested her while performing an EMG the previous evening. It is undisputed that Scheland

discussed this matter with Marion Connell, R.N., who prepared an incident report. The report indicates Scheland stated that in performing the EMG, plaintiff molested her by "caressing her breasts, feeling her buttocks and having her sit before him in the nude." She also stated that plaintiff "had her squeeze his scrotum" and that he "put his hand down her pajamas to feel her buttocks."

Defendant maintains Scheland also reported the alleged incident to him. In his deposition, defendant indicated he was called in for a consultation with respect to Ms. Scheland by Dr. James Lee, her attending physician. He explained he visited Scheland in her hospital room and that she was upset and crying as she related the incident to him. Defendant subsequently made a notation in Scheland's file which read, "? paranoid Claims she was molested by M.D."

After speaking with Scheland, defendant immediately went to the nurses' station and related what Scheland had told him. In depositions, he reported that the nurses reacted in a "matter-of-fact" manner by stating they believed the incident "could have happened." However, in the affidavit in support of his motion for summary judgment, defendant maintained the nurses stated that it was "quite probable" the event occurred "because these incidents with Dr. Brien ha[d] happened before."

Plaintiff was called before the executive committee of the hospital on May 24, 1982 and denied Scheland's allegations. The matter was then referred to the legal affairs department of the hospital for investigation. There is no indication in the record of the results of the investigation, but plaintiff maintains the matter was "concluded" by the end of May 1982.

It is undisputed that at some point defendant contacted the Board or the Attorney General's Office about Scheland's allegations.*fn1 In her affidavit in support of defendant's motion for

summary judgment, Deputy Attorney General Joan Gelber stated that defendant contacted her on September 16, 1982 and that he had been referred to her by a member of the Board. In his deposition, defendant stated that he telephoned Gelber immediately after hearing Scheland's complaint and discussing it with the nurses -- which would have meant the report to Gelber occurred in May 1982.

In her affidavit, Gelber stated that when defendant contacted her, he characterized Scheland as a mature and credible woman and stated that it was his firm impression that the nurses believed that similar incidents had previously occurred. She stated defendant indicated that because he was new at the hospital he did not know the nurses with whom he had spoken. Gelber also stated defendant told her he was not motivated by a desire to reduce the competition at the hospital.

According to Gelber's affidavit, defendant also contacted her on September 29, 1982 and informed her that he had become aware that plaintiff's reputation was known to the hospital administrator and the physician in charge of the hospital and that "orthopedists at the hospital were aware of such incidents happening to their patients." Gelber had a further conversation with defendant on December 13, 1983 concerning a nurse "who was thought to have more specific information and who might be willing to speak with [Gelber]."

An independent investigation was conducted by the Attorney General's Office. Some of the female patients at the hospital, including Scheland, were interviewed by a committee of members of the Board. An investigation was also conducted by the Enforcement Bureau of the Department of Law ...


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