On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3572-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
Phuoc Fazaldin bled to death in May 2000 while undergoing a radical abdominal hysterectomy at Englewood Hospital following a diagnosis of cervical cancer. Suit was filed on behalf of Fazaldin's estate and surviving spouse and children against the operating surgeon, Robert Stenson, Jr., M.D.; Englewood Hospital & Medical Center; Arnold J. Friedman, M.D., the hospital's chief of obstetrics and gynecology; and various other hospital physicians. Following the death of Dr. Stenson, his estate was named as a defendant. Additionally, in a third amended complaint, New York Beth Israel Medical Center was added as a party, along with its chief of obstetrics and gynecology, gynecological oncologist Allan Jacobs, M.D. Dr. Stenson had been a member of the teaching staff of Beth Israel Medical Center until his "resignation" in March 1997 following rescission of a notice that, because of deficiencies in his performance, his employment as a full-time staff member was to be terminated, effective January 21, 1997, but that his clinical privileges would be preserved, subject to conditions. Soon thereafter, Dr. Stenson was hired by Englewood Hospital.
Prior to trial, plaintiffs settled their claims against Dr. Stenson, Englewood Hospital and Dr. Friedman, and they dismissed with prejudice their claims against the remaining defendants, with the exception of Beth Israel Medical Center and Dr. Jacobs. A lengthy jury trial then occurred at which plaintiffs' counsel argued that Beth Israel Medical Center and Dr. Jacobs were negligent and committed negligent misrepresentation when they did not disclose to Englewood Hospital the deficiencies that they perceived to exist in the performance of Dr. Stenson and, indeed, drafted a favorable written evaluation of his professional conduct.*fn1 In support of their position, plaintiffs presented the expert testimony of Martin D. Merry, M.D., who criticized the actions and inactions of Beth Israel Medical Center and Dr. Jacobs. Relevant to the present appeal, Dr. Merry included among his criticisms the failure by Beth Israel Medical Center to report Dr. Stenson's unsatisfactory conduct and his departure from the staff of Beth Israel Medical Center to the New York State medical licensing authorities as required by New York Public Health Law §§ 2800 to 2820.
At the conclusion of the trial, the jury found negligent misrepresentation on the part of Beth Israel Medical Center, but that the misrepresentation was not a proximate cause of Fazaldin's death. The jury found no other negligence on the part of Beth Israel Medical Center and neither negligence nor negligent misrepresentation by Dr. Jacobs. An appeal followed.
In a per curiam decision, Estate of Fazaldin v. Englewood Mem. Hosp., No. A-4948-04T3 (App. Div. July 26, 2007), a panel consisting of Judges Stern, Collester and Sabatino concluded as a matter of law that, pursuant to New York Public Health Law § 2803-e, Beth Israel Medical Center was required to report to the professional conduct databank maintained by the New York Department of Health (DOH) restrictions or curtailment placed by the Medical Center and Dr. Jacobs upon Dr. Stenson's employment and his professional privileges as the result of concerns for patient safety or welfare, as well as his involuntary resignation. Slip op. at 25-28. Although plaintiffs had not requested the trial judge to take judicial notice of § 2803-e, and thus the panel found that the judge did not err in failing to do so, the panel took judicial notice of the New York reporting duty for purposes of appeal and held that such notice should be accorded if a new trial were to be held. Slip op. at 28 n.6 and 42 n.14.
In their initial appeal, plaintiffs argued further that Beth Israel Medical Center had a similar reporting duty pursuant to the Health Care Quality Improvement Act of 1986, 42 U.S.C.A. §§ 11101-52, which created a federal National Practitioners Data Bank (NPDB) to address the "national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance," 42 U.S.C.A. § 11101(2), and required hospitals to request information on file with the NPDB when a physician applies for a position on its medical staff or for clinical privileges at the hospital, and every two years thereafter. 42 U.S.C.A. § 11135(a). As they had argued on appeal in connection with § 2803-e, plaintiffs argued that the trial judge should have taken judicial notice of the Medical Center's legal duty pursuant to the federal statute.
As background to consideration of plaintiffs' argument, the panel found that Beth Israel Medical Center's reporting obligation under federal law was "murkier" than it was under New York law because the federal statute contains "somewhat more qualified language" than does § 2803-e of the New York law.*fn2
Slip op. at 28-29. The panel then rejected plaintiffs' position on judicial notice, stating:
First, plaintiffs did not raise the national databank whatsoever during pretrial proceedings but only brought it up on the first day of trial. Plaintiffs' expert Dr. Merry said nothing about the NPDB or the federal statutes in his expert report. The trial judge was rightly within his discretion to decline to address this substantive issue at the eleventh-plus hour. See Rivers v. L.S.C. Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). [Slip op. at 32.]
The panel noted, as well, that plaintiffs had never made a specific request that judicial notice be taken of the federal statute and that, as the result of the analysis that we have previously set forth, it was "not convinced that such a legal duty for respondents ...