On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-724-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges S.L. Reisner, Baxter and King.
Plaintiff, the Estate of Fabio Vergara, appeals from an April 27, 2005 trial court order granting summary judgment dismissing the Estate's claim against St. Clare's Hospital, based on a claim that the Hospital failed to ensure that a physician with admitting privileges had malpractice insurance.*fn1
Plaintiff's complaint stems from alleged malpractice committed by Dr. Michael P. Stein, a physician with admitting privileges at St. Clare's Hospital. In compliance with the Hospital's by-laws requiring physicians to provide proof of malpractice insurance, Dr. Stein provided proof of "claims-made" malpractice insurance for the period March 2000 to March 2001; "claims-made" insurance covered claims submitted during the life of the policy. Dr. Stein did not pay for "tail coverage,"*fn2 which under the terms of the policy he could have purchased within thirty days of the end of the policy period or by March 31, 2001.
Dr. Stein later obtained claims-made policies for March 1, 2002 to March 1, 2003, and for August 1, 2003 to August 1, 2004. He provided the Hospital with proof of this insurance. However, it is undisputed that Dr. Stein did not purchase claims-made malpractice coverage for the period March 1, 2003 to August 1, 2003. He contended at his deposition that his policy expired on March 1, 2003, and he had difficulty finding replacement insurance.
The alleged malpractice occurred on May 30, 2000. However, plaintiff did not file suit against Dr. Stein until March 12, 2003, and Dr. Stein was not served with the complaint until July 7, 2003.*fn3 Thus, according to plaintiff, the claim associated with plaintiff's complaint fell within the March-August 2003 gap in Dr. Stein's claims-made malpractice coverage. On January 16, 2004, plaintiff filed an amended complaint naming the Hospital as a defendant, premised on the Hospital's alleged failure to require Dr. Stein to provide proof of malpractice insurance coverage.
The Hospital filed a motion for summary judgment, contending that it did not owe plaintiff a duty to require Dr. Stein to have malpractice coverage. Alternatively, the Hospital argued that under Sparks v. St. Paul Insurance Company, 100 N.J. 325 (1985), and Hodge v. Garrett, 263 N.J. Super. 278 (App. Div. 1993), plaintiff's claim should be deemed covered by the March 2000 policy. In a reply brief filed on January 27, 2005, plaintiff's counsel agreed with the latter point, but contended that the court could not reach the issue because the insurer was not a party to the action. Plaintiff urged that "a Third Party Complaint should be filed against the Western Indemnity Insurance Company seeking a Declaratory Judgment that the 'claims-made' [policy] should be converted to [an] 'occurrence' policy, because of the [policy's] inappropriate retroactive date." No such complaint was filed, perhaps because the insurer had become insolvent.
In a written Statement of Reasons dated April 27, 2005, Judge Langlois concluded that the hospital had no duty to ensure that Dr. Stein had medical malpractice insurance, relying on our decision in President v. Jenkins, 357 N.J. Super. 288 (App. Div. 2003), aff'd in part and rev'd in part on other grounds, 180 N.J. 550 (2004). Judge Langlois also concluded that there was no basis to infer a private right of action based on legislation requiring doctors to have medical malpractice coverage, N.J.S.A. 45:9-19.17, or based on Board of Medical Examiners regulations providing for sanctions to be imposed on doctors who do not obtain insurance, N.J.A.C. 13:35-6.18.
On this appeal plaintiff raises the ...