On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5506-01.
The opinion of the court was delivered by: Rodriguez, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges A., A. Rodríguez, Cuff and Weissbard.
This case presents a novel issue: whether a physician or health practitioner has the right to exercise control over a settlement between a medical malpractice insurer and a claimant, where the physician is afforded coverage by the insurer, but has no express contractual right to approve the settlement. We hold that such a physician or practitioner has no right to object to the settlement, nor to demand an apportionment of his or her responsibility before the settlement is reported to either the National Practitioner Data Bank (NPDB) or the New Jersey Division of Consumer Affairs pursuant to N.J.S.A. 45:9-22.21 to -22.25.
Empress Nazirah Ashanti Webb (the infant) was born at Cooper Hospital/University Medical Center (the Hospital) on August 28, 1999. It is alleged that as a result of medical malpractice, the infant sustained an injury to the brachial plexus, which caused a permanent loss of use of her right arm. The infant and her parents, Crystal Webb and Charles E. Harris (collectively "plaintiffs"), sued the Hospital and three physicians, Susan I. Kaufman, D.O., the attending obstetrician, Karen Witt, M.D., the attending intern, and Virginia Carney-Nelson, M.D., the chief resident at the time of the delivery. Kaufman, Witt, and Carney-Nelson were all employed by the Hospital.
The Hospital was the sole named insured in a policy issued by Lexington Insurance Company (Lexington). The policy afforded coverage to Kaufman, Witt, and Carney-Nelson as "other insureds." The policy further provided that Lexington must obtain consent from the named insured, the Hospital, before settling any litigation. However, Lexington need only make "a reasonable attempt to consult with the [other] Insured[s]," Kaufman, Witt, and Carney-Nelson.*fn1
Pre-trial discovery revealed the following disputed facts. Carney-Nelson testified at her deposition that Witt delivered the infant's head. Then, Carney-Nelson suctioned the infant's mouth and noticed that there was a shoulder dystocia (i.e., the shoulders were not passing under the pelvic bone). Kaufman tried to tell Witt what maneuvers to perform. According to Carney-Nelson, Witt "was turning the baby's head instead of rotating the shoulders." Kaufman yelled at Carney-Nelson to put her gloves on. However, the baby crowned much faster than Carney-Nelson expected. With her gloves on, Carney-Nelson showed Witt how to do a "Woods" maneuver, a technique used to disimpact the shoulder. Carney-Nelson remembered that Kaufman was "telling Witt to rotate the baby, meaning the Woods maneuver," but instead Witt rotated the baby's head by ninety-degrees. Kaufman got upset and told Carney-Nelson to "get in there." Carney-Nelson took over, performed the Woods maneuver, and finished the delivery.
Kaufman's deposition testimony was consistent with that of Carney-Nelson's, except that she denied yelling. Kaufman recalled that after the head was delivered, Witt had a problem reducing the anterior shoulder. Kaufman remembered that Carney-Nelson stepped in, performed the Woods maneuver, and assisted in the entire delivery.
Witt's deposition testimony was discrepant. According to Witt, it was Kaufman who delivered the baby's shoulders. Witt insisted that Kaufman instructed her to turn the infant's head. Confused by Kaufman's directions, Witt stepped out of the way instead of asking for clarification because "time was of the essence." Witt confirmed that she turned the infant's head.
Plaintiff's expert, Anthony C. Quartell, M.D., opined that Witt was instructed "to twist and rotate a baby's head in order to disimpact its shoulders" . . . . which was "a completely inappropriate and dangerous maneuver and is in all degree of medical probability the causative action in the injury to this baby's brachial plexus." He further opined that both Carney-Nelson and Kaufman "are [at fault] of practicing substandard medicine in that they either instructed or allowed an intern to perform a dangerous and injurious maneuver on a baby's head when they were standing right next to the intern."
Two experts retained by defendants, Herbert F. Sandmire, M.D., and Joel I. Polin, M.D., disagreed. Sandmire found that there were "no deviations from the acceptable standards of care in the delivery," and that "nothing the physicians did or failed to do caused the injury." Sandmire reported that there is no evidence that doctors can prevent brachial plexus injuries, and that there is a correlation between such injuries and a rapid second stage of labor, as occurred in this case. Polin opined that the delivery was managed in accordance with a high standard and that a brachial plexus injury does not imply improper management of shoulder dystocia. Rather, Polin reported, a brachial plexus injury may occur in the absence of shoulder dystocia, when shoulder dystocia is managed perfectly, and in cesarean births.
According to Lexington's brief, it "determined that consideration of a possible settlement of the plaintiffs' claims was the appropriate course of action and in the best interests of [its] insureds." However, Kaufman communicated to Carolyn R. Sleeper, Esq., the attorney appointed by Lexington to represent all defendants, that she did not wish settlement on her behalf. Sleeper advised Kaufman that the insurance contract did not require her consent to settle and suggested that Kaufman retain personal counsel. Later, it became apparent that there were conflicts in representation of all defendants by one counsel. Therefore, Sleeper and her firm (Parker, McCay & Criscuolo, P.A.), withdrew from representation. Lexington appointed Stahl & DeLaurentis, P.C., as counsel for Kaufman and Earp Cohn, P.C. to represent Witt and Carney-Nelson. In addition, Kaufman retained Kern, Augustine, Conroy & Schoppmann, P.C. as her personal counsel.
The Hospital successfully moved for leave to file a third party complaint against Lexington, a cross-claim against Kaufman, and a counterclaim against plaintiffs, seeking a declaratory judgment that only its consent is needed in order for Lexington to settle the case on behalf of all insureds. The Hospital then moved for summary judgment on its third party claim. Kaufman cross-moved, seeking to bar the Hospital and Lexington "from apportioning liability to [her] in connection with any settlement of this case." The judge granted the Hospital's motion and denied Kaufman's cross-motion because she had not previously filed an affirmative claim against the Hospital or Lexington.
Kaufman then moved for leave to file an amended answer to the Hospital's cross-claim and a fourth party complaint against Lexington. These proposed pleadings sought to preclude Lexington from settling the case, absent Kaufman's consent or "an adjudication by the Court, with respect to [her] liability, if any." Kaufman also sought compensatory damages, costs and attorney's fees. Kaufman alleged in the proposed amended pleading that the reporting of a settlement with undivided responsibility for all three doctors would cause:
[A]dverse consequences to her participation and/or memberships in health insurance organizations, HMO's and/or managed care organizations; adverse consequences to her memberships in the medical staffs of other hospitals at which she maintains privileges, a reduction or elimination of her ability to secure employment as a physician, a reduction or elimination of her ability to provide obstetric and gynecological services and, ultimately, a reduction or elimination of her ability to practice medicine.
In support of the motion, Kaufman submitted the certification of Morgan McLachlan, a professional liability insurance expert. He certified that if Lexington settled the case and reported it to the NPDB as representing the undivided responsibility of the three physicians, Kaufman "will find it extremely difficult, if not impossible, to obtain professional liability insurance coverage" in the future. He added that:
If she is able to obtain coverage, the premiums will increase to a point where it may be unaffordable, forcing Dr. Kaufman out of the practice of obstetrics. Obstetrics is, of course, a specialty which is subject to high malpractice premium rates, even for physicians with clean records. For a physician to have such a settlement on her record, even where she has a reasonable explanation and no liability, ...