On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-540-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Following the death of their eight-day-old daughter Rebecca on July 21, 2006, suit was filed on behalf of Phyllis Rabinowitz, individually and as administratrix ad prosequendum of the estate of Rebecca Rabinowitz, and Andrew Rabinowitz, individually, against Lynn Reyman, M.D., an emergency room physician, Emergency Medical Associates (EMA), Reyman's employer, and St. Barnabas Medical Center, the hospital where the emergency services were provided. In their initial complaint, plaintiffs asserted causes of action for medical malpractice against Reyman, EMA and St. Barnabas (Count One); respondeat superior liability on the part of EMA and St. Barnabas (Count Two); and negligent infliction of emotional distress (Count Three). In a second amended complaint, plaintiffs' counsel added claims against EMA and St. Barnabas for negligent staffing; against St. Barnabas for violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -116; and against St. Barnabas for common-law legal or equitable fraud. Additionally, the complaint asserted a medical malpractice claim against Rebecca's pediatrician, Constantino Kinteroglou, M.D. Both compensatory and punitive damages were sought, as well as treble damages pursuant to the Consumer Fraud Act. The claim against Dr. Kinteroglou has been settled.
Shortly before the end of the discovery period, EMA moved for partial summary judgment on plaintiffs' negligent staffing claim and all claims for punitive damages.*fn1 St. Barnabas cross-moved for partial summary judgment on plaintiffs' negligent staffing claim, their Consumer Fraud Act claim, and their common-law fraud claim. Additionally, Dr. Reyman, joined by defendants St. Barnabas and EMA, sought summary judgment on plaintiffs' claim of emotional distress. Following oral argument on May 28, 2009, the motion judge granted summary judgment to all remaining defendants on plaintiffs' claim for negligent infliction of emotional distress, holding that it was barred by the Supreme Court's decision in Frame v. Kothari, 115 N.J. 638 (1988). That determination has not been appealed. Additionally, the motion judge granted summary judgment to St. Barnabas on plaintiffs' claim that it violated the Consumer Fraud Act, relying in this regard on Macedo v. Dello Russo, 178 N.J. 340 (2004) and Hampton Hospital v. Bresan, 288 N.J. Super. 372 (App. Div. 1996). That ruling, likewise, has not been appealed. Following these rulings, the motion judge adjourned the hearing on St. Barnabas' motion for summary judgment on plaintiffs' claim of common-law fraud and the motion of both St. Barnabas and EMA for summary judgment on plaintiffs' claim of negligent staffing to permit plaintiffs to obtain experts in support of their position. Defendants' motions for summary judgment on plaintiffs' punitive damages claims were also adjourned.
Plaintiffs' counsel subsequently served the reports of Ronald A. Paynter, M.D., and Robert A. Belfer, M.D., who addressed the issue of negligent staffing. Dr. Paynter stated in his report:
As a major hospital, SBMC held itself out to the public as having specialized pediatric care both prenatally and in the emergency room. This was confirmed in the testimony of the Rabinowitzes and in the various website statements made by the hospital. Additionally, SBMC had a separate area designated as Pediatric Emergency Department which was designed to treat only the pediatric population.
SBMC proclaimed to the public that their Pediatric Emergency Department (PED) was staffed with physicians who were all specialists in pediatric emergency medicine. On the evening of July 19, 2006 the PED was not staffed with a specialist in pediatric emergency medicine or a pediatrician. SBMC failed to meet its own staffing standards and therefore deviated from the standard of care.
A Board-certified Pediatric Emergency Medicine physician, in most circumstances, has completed a three year Pediatric Residency and a 2-3 year Fellowship in the area of Pediatric Emergency Medicine. 100% of the time in residency is devoted to the care of children and approximately 95% of the Fellowship experience is devoted to the pediatric patient. A Board-certified Emergency Medicine physician spends less than 25% of their residency, generally, in the care of the pediatric age patient. While board certification imparts the qualifications for both to care for the child in an emergency department setting, the training, experience and skill level of the PEM is greater than the EM physician.
In my opinion a board certified pediatrician or a board certified pediatric emergency medicine physician was better qualified to diagnos[e] and treat this infant than Dr. Reyman.
The hearing on the remaining motions resumed on July 24, 2009. At that time, the motion judge granted summary judgment to EMA on plaintiffs' punitive damages claim. He denied summary judgment to St. Barnabas on the fraud claim and its associated claim for punitive damages, and he denied summary judgment to both St. Barnabas and EMA on plaintiffs' claims of negligent staffing, finding material factual issues to exist with respect to those claims. St. Barnabas and EMA separately moved for interlocutory appeal of the judge's fraud and negligent staffing decisions, and we granted their motions for leave to appeal, as well as the motion of the American College of Emergency Physicians (ACEP) to appear as amicus curiae. We heard the appeals back-to-back and decide them both in this opinion.
The record discloses that, on July 13, 2006, Rebecca was born prematurely by caesarian section at thirty-five weeks gestation at St. Barnabas Hospital. In part, because the mother had a positive urine culture for Group B streptococci, Rebecca was placed in the neonatal intensive care unit (NICU), where she received antibiotics and treatment for jaundice, transient tachypnea and other conditions. She was discharged on July 18, 2006.
On July 19, 2006, after consulting with Rebecca's pediatrician, her parents took the child to the pediatric emergency room at St. Barnabas as the result of concerns regarding nasal congestion, wheezing and slow feeding. She was seen there by defendant Reyman who, following a physical examination and observation of Rebecca taking a bottle, declined to admit the child and instead discharged her as in stable condition with a diagnosis of congestion. On July 20, 2006, Rebecca was seen by her pediatrician, who diagnosed her as having a heart murmur, and he referred the child to a pediatric cardiologist. He otherwise found the baby's condition to be satisfactory. The doctor testified in his deposition that he saw no evidence of sneezing, runny nose, mucus, or an infection that would justify a hospital admission.
However, early in the morning of July 21, 2006, Rebecca awoke, crying. She then commenced to bleed from her nose and, some time thereafter, suffered cardiac arrest. She was taken by ambulance to St. Barnabas, where efforts to revive her were unsuccessful, and she was pronounced dead at 7:40 a.m. A later autopsy revealed the cause of death to have been an enteroviral infection affecting her brain, lungs and heart.
In this action, plaintiffs claim that Dr. Reyman committed medical malpractice in failing to take a complete history from her parents of Rebecca's prior treatment; failing to obtain NICU records; failing to perform blood work, obtain a chest x-ray, and otherwise seek to determine the cause of Rebecca's symptoms; failing to consult with a pediatrician regarding Rebecca's condition; and failing to admit Rebecca to the hospital.
Additionally, plaintiffs make claims against EMA, a doctor-owned professional association of approximately 150 physicians that supplies emergency room doctors, among other things, to approximately eighteen hospitals in New Jersey, including St. Barnabas. At the time of the events at issue, Dr. Reyman was Chair of the Board of EMA. She was assigned to the pediatric emergency room for the 6:00 p.m. to 2:00 a.m. shift on July 19 by another EMA doctor, Dr. Birnbaum. During the relevant time period, EMA employed three physicians who were board certified in pediatric emergency medicine. All were assigned to the St. Barnabas pediatric emergency room and worked various shifts there. The remaining shifts were staffed by physicians who were not certified in pediatric emergency medicine but met the qualifications set forth in State regulations. See N.J.A.C. 8:43G-12.3.
Plaintiffs claim that both EMA and St. Barnabas were negligent in assigning Dr. Reyman to work in the hospital's specially-designated pediatric emergency room. In this regard, they admit that Dr. Reyman was board certified in internal medicine and emergency medicine. The record also reflects that Dr. Reyman had substantial training in pediatrics in her fourth year of medical school; in a subsequent toxicological rotation during her residency at Bellevue Hospital where ingestion of toxic substances by children was frequently encountered; during her two-year training in emergency medicine, one-half of which she testified was devoted to pediatric medicine; as the result of her 20-year emergency room practice; and in connection with her work, since 1995, as a physician for the New Jersey Y camps.*fn2
However, she was not board certified in either pediatrics or pediatric emergency medicine.
Plaintiffs have additionally asserted a claim against St. Barnabas for common-law fraud arising from its marketing of its pediatric emergency room in hospital tours given to prospective parents and through its website. In that connection, Andrew Rabinowitz responded in his deposition, when asked which "source of information held the greatest weight for you in deciding to use St. Barnabas,"
[w]ell, I think they were very - in the tour and in talking to some people - in the tour, and another is, you know, they promoted the fact that they had a Children's Hospital nearby, unconnected to them. They had a, you know, highly ranked, I think was the exact word, highly ranked NICU in case there was an issue, that they had PEDs [pediatric emergency doctors], which was a new term for me, pediatric ER, which I never heard before, PEDs on staff. The breadth of the hospital, you know, as far as, you know, if there were any issues, their expertise in ...