On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2517-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
Plaintiffs CentraState Healthcare System and CentraState Hospital appeal from the October 25, 2007 order, which dismissed their complaint against defendant Panifilo Canton, M.D.*fn1 We affirm.
John T. Scully is a licensed medical physician and an associate of Central Jersey Ob-Gyn Associates, P.A., which engages in the practice of obstetrics and gynecology. Defendant is a retired licensed medical physician and a former associate of Central Jersey Emergency Medicine Associates, P.C. (CJEMA). Plaintiff CentraState Healthcare System (CentraState) operates and manages plaintiff CentraState Hospital in Freehold Township. On January 3, 1995, CentraState entered into an agreement with CJEMA, under which CJEMA was to provide doctors to render medical care to patients at CentraState Hospital.
On August 28, 2000, Scully performed an endometrial sampling, or biopsy, of Deborah Masia. On September 4, 2000, because of her continuing pain and discomfort, Masia presented herself for treatment at the CentraState Hospital emergency room where she was treated by defendant. In February 2001, defendant retired from his employment as an emergency room physician with CJEMA. Immediately after retirement, defendant traveled to the Philippines for three months, returning to his residence in Freehold in May 2001, where he has continued to reside, apart from his annual three-month visit to the Philippines.
On August 27, 2002, Masia filed a medical malpractice complaint against Scully, Central Jersey Ob-Gyn Associates, P.A., CentraState (incorrectly pled as CentraState Medical Center), and defendant, alleging that the defendants had failed to exercise reasonable care in rendering medical treatment, causing her to suffer personal injuries. On November 19, 2002, CentraState filed its answer to the medical malpractice complaint and did not assert a cross-claim against defendant because it was unknown whether defendant was a hospital employee or an independent contractor. In late 2002, although not personally served with Masia's summons and complaint, defendant was notified by CJEMA that he had been named a defendant in Masia's medical malpractice action. Defendant's malpractice insurance carrier advised him not to take any action, but to await service of the summons and complaint. In the interim, Masia, Scully, and CentraState proceeded with discovery in the medical malpractice action.
On March 15, 2003, Masia's complaint was dismissed as to defendant without prejudice for Masia's failure to effect service on him pursuant to Rule 1:13-7(a). On September 25, 2003, CentraState confirmed that defendant was not an employee of the hospital when he treated Masia, but was employed by CJEMA, "which is a contracted physician's group for the emergency room."
On October 1, 2003, counsel for CentraState sent a letter to counsel for Masia advising that defendant was not an employee of CentraState and that his law firm would not be filing an answer on behalf of defendant. On October 2, 2003, Masia's counsel replied that effective service could not be made on defendant because defendant was unable to be located, and that an inquiry was made of CentraState's counsel whether the hospital had a current personal or business address for him.
On May 3, 2004, Masia served a liability expert report authored by Richard L. Luciani, M.D., in which he opined that there was a failure by defendant, CentraState's emergency room physician, to obtain an accurate medical history from Masia, resulting in negligence. On May 3, 2005, Luciani was deposed. He testified that the issue of whether or not defendant was negligent was a question of fact, because there was an absence of any reference in the hospital records concerning Masia's biopsy by Dr. Scully. Luciani opined that if Masia had informed defendant that she had the biopsy only days before the emergency room visit, that defendant should have made a diagnosis of pelvic inflammatory disease and prescribed a broader spectrum antibiotic. If, however, Masia had failed to provide defendant with a history concerning her biopsy, defendant's diagnosis of urinary tract infection was reasonable, and the treatment rendered was proper.
On May 16, 2005, CentraState furnished Masia's attorney with the address of defendant. However, Masia never moved to reinstate the complaint against defendant, electing to proceed against CentraState on a theory that CentraState held defendant out as its agent; nor did CentraState move to file and serve a cross-claim against defendant.
On May 23, 2007, plaintiffs filed the present action, seeking contribution, common law indemnification, or contractual indemnification from defendant on Masia's medical malpractice claim. In August 2007, defendant filed a motion for summary judgment, seeking to dismiss plaintiffs' complaint on the ground that the complaint was barred by the entire controversy doctrine (ECD), because plaintiffs had failed to file a cross-claim against defendant in the underlying medical malpractice action. Defendant also moved to dismiss the complaint on the grounds that it was barred by the doctrines of laches, waiver, and equitable estopppel, asserting that he was prejudiced by his exclusion from the discovery proceedings conducted in the medical malpractice action, and he had no recollection of events surrounding Masia's claim, which occurred seven years prior. Plaintiffs cross-moved to consolidate the present action with Masia's medical malpractice action.
The motions were argued on October 5, 2007, with the trial judge rejecting defendant's argument seeking dismissal of the complaint based on the ECD, "because the actions are still pending simultaneously and I think the case law is clear that simultaneously pending actions can't invoke the entire controversy doctrine . . . as long as any judge can make a decision as to whether to consolidate them or not, the entire controversy doctrine doesn't apply." "And here, since there is a motion to consolidate, whether I grant it or deny it, it renders the entire controversy ...