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Lowe v. Zarghami

October 27, 1997

LINDA C. LOWE AND THOMAS LOWE, PLAINTIFFS-APPELLANTS,
v.
FARAMARZ C. ZARGHAMI, M.D., DEFENDANT-RESPONDENT, AND KENNEDY MEMORIAL HOSPITAL, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Approved for publication October 27, 1997.

Before Judges Long, Stern and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D.

The opinion of the court was delivered by: Kimmelman

The opinion of the court was delivered by

KIMMELMAN, J.A.D.

This is a medical malpractice case which was dismissed as the result of the granting of defendant-respondent Dr. Faramarz C. Zarghami's motion for summary judgment on the ground that he was an employee of a public entity and had not received timely notice of plaintiff's cause of action as required by N.J.S.A. 59:8-8 of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. Plaintiff claims that defendant was acting as an independent contractor at the time he performed the surgery alleged to constitute malpractice and that, in any event, under the "discovery rule," see Lopez v. Swyer, 62 N.J. 267, 272-74, 300 A.2d 563 (1973), and because of the existence of "extraordinary circumstances", see Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 147-49, 543 A.2d 443 (1988); N.J.S.A. 59:8-9, there were sufficient reasons to permit the late filing of a notice of claim. We hold that defendant was acting as an independent contractor at the time of the surgery in issue. It is therefore unnecessary for us to consider whether the filing of a late tort claim notice should have been permitted.

Plaintiff was employed as a nurse at the Kennedy Memorial Hospital - Stratford Division (KMH), a non-state institution. Defendant was employed by the University of Medicine and Dentistry of New Jersey (UMDNJ), a public entity within the meaning of the Act. Fuchilla v. Layman, 109 N.J. 319, 330-31, 537 A.2d 652, cert. denied sub nom., University of Medicine and Dentistry of New Jersey v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). Defendant is an Associate Professor of Clinical Obstetrics and Gynecology at UMDNJ. UMDNJ pays his salary, which is not dependent upon hours billed or surgery performed. Defendant claims, and we accept, that his employment by UMDNJ is not evidenced by a formal written contract, but rather by two letters verifying his appointment as an Associate Professor. Upon being hired by UMDNJ, defendant was assigned to the south Jersey area and given staff privileges at KMH and several other hospitals. Such privileges permitted him to perform surgical procedures at those facilities. At that time, KMH had an affiliation arrangement with UMDNJ. Defendant maintained his office in a nearby building owned or leased by UMDNJ, which had an appropriate UMDNJ sign on its facade. The office was staffed by UMDNJ employees. Defendant wore an identification badge which indicated his connection with UMDNJ. Plaintiff was recommended to defendant by her personal physician, and saw defendant on two occasions in this office. It was determined that plaintiff needed surgery, and on September 26, 1994, she was admitted as a patient at KMH. On that date, defendant performed a radical hysterectomy on plaintiff. The foregoing factual recitation appears without dispute.

Following the surgery, it is alleged that plaintiff developed complications which required further surgery on December 15, 1994, by another doctor at KMH. At that time, a metal clip was found on plaintiff's right ureter *fn1 and removed. Additional surgery and four separate hospitalizations followed to treat plaintiff. In time, she came to believe that the metal clip was the cause of her problems and that defendant was responsible for leaving it in her body during the initial surgery. She consulted an attorney, which led to the institution of this action.

In his deposition, defendant acknowledged that his activities in the operating room at KMH were not supervised by UMDNJ at all. He noted that his practice at KMH was overseen by a "quality assurance committee" composed of physicians and persons connected with KMH. KMH's by-laws and internal procedures, and not those of UMDNJ, governed surgery performed at the hospital. During plaintiff's surgery, the attending nursing staff and anesthesiologist were assigned by KMH. The operating equipment used during plaintiff's surgery belonged to KMH. At the time of surgery, there was no representation or indication by defendant that he was acting on behalf of UMDNJ or following its surgical protocols. Defendant does not claim to have received advance approval from UMDNJ for the surgery.

It appears, and we accept as a fact, that plaintiff's medical insurer paid the fee for the surgery to UMDNJ, and the charges for plaintiff's hospitalization to KMH.

On February 8, 1996, plaintiff filed her complaint for malpractice against defendant and KMH, which is not a party to this appeal. Her husband, Thomas Lowe, asserted a per quod claim for loss of her services. When defendant delivered a copy of the complaint served upon him to his employer, UMDNJ, it was the first notice that UMDNJ had of plaintiff's cause of action. Defendant promptly moved to dismiss the complaint on the grounds that plaintiff failed to file a notice of claim on UMDNJ, as required by the Act. N.J.S.A. 59:8-8. Plaintiff countered with the contention, among other arguments, that defendant was acting as an independent contractor at the time of the surgery, and because of that, the notice requirements of the Act were irrelevant to this case.

We address the issue of whether defendant was performing as an employee of UMDNJ or acting as an independent contractor at the time of the surgery.

Independent contractors are exempted from the definition of "employee" contained in N.J.S.A. 59:1-3 as follows:

"Employee" includes an officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service; provided, however, that the ...


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