Before Judges Pressler, Kimmelman and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Plaintiff David A. Jiosi was arrested and charged with driving under the influence of a controlled dangerous substance. The police took him to defendant Mountainside Hospital where blood was drawn for testing with plaintiff's permission. Plaintiff was then involuntarily catheterized so that a urine sample could be extracted. Defendant sued the hospital, two of its nurses and Dr. Frank Juhasz on theories of battery and negligence, among others. He also sued the Township of Nutley, the Nutley Police Department and four of its police officers pursuant to 42 U.S.C.A. § 1983.
Two summary judgment motions were heard by different judges. The first motion resulted in summary judgment in favor of defendants Mountainside Hospital, its nurses and Dr. Juhasz, on the theory that they were entitled to immunity pursuant to N.J.S.A. 2A:62A-10. That statutes provides in part:
a. When acting in response to a request of a law enforcement officer, any physician, nurse or medical technician who withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and delivers it to a law enforcement officer, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised is that ordinarily required and exercised by others in the profession.
b. Any physician, nurse or medical technician who, for an accepted medical purpose, withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcement officer either voluntarily or upon court order, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised in obtaining the specimen is that ordinarily required and exercised by others in the profession.
c. The immunity from civil or criminal liability provided in subsections a. and b. of this section shall extend to the hospital or other medical facility on whose premises or under whose auspices the specimens are obtained, provided the skill, care and facilities provided are those ordinarily so provided by similar medical facilities.
The second summary judgment motion resulted in dismissal of plaintiff's claims against the Township of Nutley, the Township Police Department and the named police officers. The substantive reasons for that judgment were that plaintiff's constitutional rights had not been violated and, in any event, the police officers were "likely" entitled to qualified immunity.
We are satisfied that summary judgment was improperly granted except as to the Township of Nutley, the Nutley Police Department and police Sergeants Quigg and Strumulo. On a motion for summary judgment the initial question is whether there is a genuine issue of material fact. R. 4:46-2(c). The determination of that question requires the motion judge to consider, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged dispute in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995).
Viewing the competent evidential materials in a light most favorable to Jiosi, a reasonable fact finder could reach the following conclusions. *fn1 On April 23, 1993, plaintiff's erratic driving caused him to be arrested and charged with operating a vehicle while under the influence. Because there was no smell of alcohol on his breath he was suspected of being under the influence of drugs. He was taken to the police station and read his Miranda *fn2 rights. At the direction of Sergeant Strumulo, Jiosi was taken to Mountainside Hospital for a blood test by Officers Beard and Iannicelli. The blood was to be tested for drugs at the State Police lab. They arrived at the hospital shortly after midnight and the police officers explained the circumstances. As one nurse stated in her deposition, "[t]hey said this patient was under arrest and they needed to get blood sample." They did not request a urine test and it was not police policy to obtain a urine sample under these circumstances. Plaintiff's blood was drawn within a half-hour of his arrival at the hospital. After the blood was drawn a doctor told Officer Beard that it was the hospital's policy to take a urine sample in addition to a blood sample when screening for drugs. The reason for the policy was that the hospital laboratory only tested blood for a limited number of substances and a urine test was more extensive. Plaintiff agreed to provide a urine sample but was unable to do so. He was handcuffed in the bathroom and given five to ten glasses of water to drink over approximately a half-hour.
While waiting for plaintiff to provide a urine sample, the police were told by a nurse that a catheter would be used if plaintiff did not voluntarily produce a sample. The catheterization was ordered by Dr. Juhasz. Officer Beard called the police station and told Sergeant Quigg that the hospital wanted to take a urine sample. Beard did not mention catheterization. Quigg told Beard it was okay to go ahead and have a urine sample taken. It was "not even a ten-second call." Beard then relayed Quigg's approval to hospital personnel.
Plaintiff was told by one of the police officers that if he did not urinate he would be catheterized. At that point plaintiff asked to call his lawyer but the request was not granted. A nurse wiggled a catheter tube at plaintiff and told him if he did not "pee within the next two minutes" that was what he was ...