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de Tarquino v. City of Jersey City

June 28, 2002

FRANCESCA C.V. DE TARQUINO, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JULIO CESAR TARQUINO, DECEASED, AND FRANCESCA C.V. DE TARQUINO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF JERSEY CITY, JERSEY CITY POLICE DEPARTMENT, JERSEY CITY POLICE ACADEMY, POLICE OFFICER JOHN CHIUSOLO, THE COUNTY OF HUDSON, HUDSON COUNTY POLICE DEPARTMENT, HUDSON COUNTY POLICE ACADEMY, OFFICER MATT SALVATORE, HUDSON COUNTY JAIL, SOMERSET POLICE ACADEMY, BERGEN COUNTY POLICE AND FIRE ACADEMY, AMOCO CORPORATION, S & A GEORGES AMOCO CORPORATION, CHRIST HOSPITAL, RUDY RUMOHR, M.D., GILBERT MELNICK, M.D. AND OFFIE CRUZ, R.N., DEFENDANTS,
AND JERSEY CITY EMERGENCY MEDICAL SERVICES, PEDRO REYES AND ARAFAT SAAB, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2238-01.

Before Judges Skillman, Carchman and Wells.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2002

We granted plaintiff's motion for leave to appeal to determine whether the immunity N.J.S.A. 26:2K-29 confers upon "EMT-intermediate[s]" for negligence "in the rendering of intermediate life support services" extends to negligence in the preparation of the report provided to the hospital where an emergency patient is brought for treatment. We conclude that N.J.S.A. 26:2K-29 only provides immunity for negligence in connection with the actual rendering of life support services. Therefore, we reverse the summary judgment in favor of defendant Jersey City Emergency Medical Services (Emergency Medical Services), an ambulance service company, and two of its employees, defendants Pedro Reyes and Arafat Saab, which dismissed plaintiff's claim that defendants negligently failed to record on an ambulance "run sheet" that her son, a head trauma victim, had been vomiting, and that this negligence was a contributing cause of his death.

The decedent suffered his fatal injuries on May 7, 1995, as a result of an assault by a Jersey City police officer. Defendants Saab and Reyes, who are licensed emergency medical technicians (EMTs), responded to a call from the police station where the decedent was taken after the assault, and rendered emergency medical service to him. While they were rendering this service, the decedent vomited. Saab and Reyes then transported the decedent to defendant Christ Hospital. When they arrived at the hospital, Saab and Reyes gave a copy of their "run sheet," which is a report of observations and treatment of an emergency patient, to the emergency room staff. This document did not include any notation that the decedent had been vomiting, which is a significant symptom of serious brain trauma. In fact, the run sheet included the notation "-N/V," which defendants acknowledge means, "negative for nausea/vomiting." After a few hours, the emergency room staff at Christ Hospital concluded that the decedent was not seriously injured and discharged him to the Jersey City police, who brought him to the Hudson County Jail.

Six hours later, the decedent began experiencing seizures and was transported to Jersey City Medical Center. Shortly thereafter, he became comatose and was subsequently declared brain dead on May 11, 1995. An autopsy revealed that the cause of death was an epidural hematoma.

Plaintiff, as administratrix ad prosequendum of her son's estate and individually, subsequently brought this wrongful death and survivorship action against Emergency Medical Services, Saab and Reyes (hereinafter referred to as the EMT defendants), as well as various other defendants, for negligence in the diagnosis and treatment of her son's brain trauma. Plaintiff's claim against the EMT defendants was that they had negligently failed to record on the run sheet that the decedent had been vomiting. The EMT defendants moved for summary judgment on the ground that N.J.S.A. 26:2K-29 immunizes them from liability.

Plaintiff filed a cross-motion for leave to amend her complaint to add a claim for "spoliation of evidence and bad faith." This claim was based on the discovery, during the criminal investigation of the fatal assault upon decedent, of a second copy of the run sheet in which the box next to "vomiting" was checked off. Plaintiff asserted that the EMT defendants had altered this copy to cover up the fact that they failed to include any notation of vomiting on the run sheet they gave to the medical staff at Christ Hospital.

The trial court concluded that "the rendering of intermediate life support services" includes the preparation of a report regarding those services and that the EMT defendants were therefore entitled to immunity under N.J.S.A. 26:2K-29 for their alleged negligence in omitting any mention of vomiting in their report. The court also concluded that plaintiff had failed to present any evidence that could support a finding that the EMT defendants' services to the decedent were not rendered in "good faith," which would deprive them of the benefit of the immunity provided by N.J.S.A. 26:2K-29. Accordingly, the court granted the EMT defendants' summary judgment dismissing plaintiff's negligence claim. The court also granted plaintiff's motion to amend her complaint to assert a claim for "fraudulent concealment" of evidence, see Rosenblit v. Zimmerman, 166 N.J. 391, 403-08 (2001), but denied her motion to assert a claim for "bad faith." Plaintiff filed a motion for reconsideration, which the court denied. We subsequently granted plaintiff's motion for leave to appeal from the summary judgment in favor of the EMT defendants and the denial of her motion for reconsideration.

N.J.S.A. 26:2K-29 provides:

No EMT-intermediate, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, or officers and members of a first aid, ambulance or rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith and in accordance with this act. The question presented by this appeal is whether the immunity which N.J.S.A. 26:2K-29 confers upon "EMT-intermediate[s]" for alleged negligence "in the rendering of intermediate life support services" extends to negligence in the preparation of a report regarding those services and the condition of the emergency patient. N.J.S.A. 26:2K-21(i) defines "intermediate life support services" as: an intermediate level of pre-hospital, inter-hospital, and emergency service care which includes basic life support functions, cardiac monitoring, cardiac defibrillation, the use of the esophageal obturator airway, and the use of military anti-shock trousers and other techniques and procedures authorized by the commissioner[.]

N.J.S.A. 26:2K-21(b) defines "[b]asic life support services" which are included in "[i]ntermediate life support services," as "a basic level of pre-hospital care which includes patient stabilization, airway clearance, cardiopulmonary resuscitation, hemorrhage control, initial wound care and fracture stabilization and other techniques and procedures authorized by the commissioner."

We have no doubt that the medical services Reyes and Saab rendered to the decedent at the Jersey City police station and while transporting him to Christ Hospital constituted "intermediate life support services" within the intent of these statutory provisions. However, plaintiff's claim is not predicated on alleged negligence in the direct "rendering" of those services but rather in failing to note in the report provided to Christ Hospital that the decedent had been vomiting. Consequently, the EMT defendants would be entitled to immunity under ...


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