On appeal from Superior Court, Law Division, Morris County.
Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Pressler, P.J.A.D.
The question raised by this appeal is whether plaintiff's medical malpractice action is barred by the entire controversy doctrine by reason of his pro se settlement of a prior Special Civil Part action brought against him by the defendants-physicians' professional association to recover its bill for services for the same medical procedure of which the malpractice suit complains. We are satisfied that under the circumstances here, application of the entire controversy doctrine is entirely inapposite. Accordingly, we reverse the summary judgment dismissing the malpractice action on that preclusionary ground.
The relevant facts are not in dispute. Plaintiff William Cafferata, whose wife Sheryl Cafferata sues per quod, consulted defendant Irving G. Peyser, a vascular surgeon, late in 1986 complaining of ulcers on his left leg. Peyser recommended
surgery and, assisted by his partner, defendant Mitchell S. Carter, he performed a surgical procedure in January 1987 consisting of bilateral varicose vein ligation and stripping. Plaintiff continued under defendants' post-operative treatment for the next several months. In March 1987, however, because of his dissatisfaction with his progress, plaintiff consulted another physician who took over his care and apparently told him, after reviewing the medical records, that Dr. Peyser had done inadequate pre-operative testing.
In the interim, plaintiff had apparently transmitted Peyser's bill, in the amount of $1,275, to his health insurance carrier. Although the record does not indicate when the carrier finally paid the bill, it is at least clear that it was not paid as of June 1987, when a complaint was filed, as an apparently routine collection matter in the Special Civil Part, by "Irving G. Peyser, M.D. & Mitchell S. Carter, M.D., P.A." against plaintiff and his wife demanding payment. They promptly responded by the filing of a "To Whom It May Concern" letter, stating that:
We are responding to the summons and complaint in [sic] which we received on June 24, 1987. We have submitted the bill to the Ins. Company. The payment will be mailed to Dr. Peyser directly from the Ins. Company, as soon as possible.
The next recorded notation respecting the progress of the Special Civil Part collection action informs that a settlement conference was conducted on April 15, 1988, by the trial judge's law secretary, participated in by plaintiff and, for the professional association, by one Susan Ellison, who is neither an attorney nor, apparently, a principal or professional employee of the association. Nor does the record indicate whether she is a lay employee of the professional association itself or of the agency which collects the association's bills. While there is no record of the conference itself, it appears that by that time, plaintiff's carrier had paid the bulk of the bill directly to the physicians, leaving only an uncovered balance of $160.80. As a
result of the conference, plaintiff agreed to pay that difference and a written stipulation of settlement was then executed by plaintiff and Ellison and witnessed by the law ...