July 23, 2010
PHYLLIS RABINOWITZ, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF REBECCA RABINOWITZ, AND ANDREW RABINOWITZ, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
LYNN D. REYMAN, M.D., SAINT BARNABAS MEDICAL CENTER, CONSTANTINO KINTIROGLOU, M.D., DEFENDANTS, AND EMERGENCY MEDICAL ASSOCIATES, DEFENDANT-APPELLANT.
PHYLLIS RABINOWITZ, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF REBECCA RABINOWITZ, AND ANDREW RABINOWITZ, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
LYNN D. REYMAN, M.D., EMERGENCY MEDICAL ASSOCIATES, CONSTANTINO KINTIROGLOU, M.D., DEFENDANTS, AND SAINT BARNABAS MEDICAL CENTER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 17, 2010
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.
Dr. Belfer opined:
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 being able to take care of kids, you know, any issue that they may have if there was a problem. So their breadth of ability to care for newborns.
Although Andrew could only state he "may" have visited the St. Barnabas Medical Center website prior to Rebecca's birth, plaintiffs also rely in their claims of fraud on the following representations made on that website:
Department of Emergency Services
Facts & Figures
Staffed by a rotating team of 15 full time board-certified physicians including pediatric emergency medicine specialists, emergency and critical care nurses and other health care professionals.
Department of Emergency Services
Pediatric Emergency Services
While emergency departments always treat children, only a few in the region have developed specialized areas just for kids with physicians who are all specialists in pediatric emergency medicine. Saint Barnabas has taken a true leadership role in addressing the special emergency care needs of children by providing specialized medical staff in a convenient, child-oriented environment specially designed and equipped for medical emergencies, minor illnesses, and pediatric trauma.*fn3
After reviewing this evidence and relevant case law, the motion judge declined to grant summary judgment on plaintiffs' negligent staffing and fraud claims. In that regard, the judge recognized that, with the exception of the punitive damages aspect of the fraud claim, the damages that plaintiffs claimed to have resulted from the medical malpractice were identical to those that could be awarded as the result of plaintiffs' claims of negligent staffing and fraud.
Turning to the negligent staffing and fraud issues, the judge recognized that there was no support for a claim that the staffing on the night in question was below any standard required by the Health Care Facilities Planning Act, N.J.S.A. 26:2H-1 to -126 or the regulations promulgated pursuant to that Act. After considering the reports of plaintiffs' experts, which the judge characterized as "terse," the judge concluded: "I don't find this is a case involving the failure of any standard of care. It's just a failure in meeting what was allegedly advertise[d]." He continued:
What's before the court is that do you allow a common law negligence claim or a common law fraud claim if - and I say it is a factual issue as to whether their advertising can be reasonably interpreted to mean actually in the emergency room a pediatrician or . . . a pediatric emergency medicine board certified specialist . . . and whether or not Dr. Reyman can fall into that category or whether or not, you know, it was intentional.
The judge then concluded that sufficient, albeit disputed, facts had been presented to permit the conclusion that St. Barnabas had set staffing standards that had not been met by EMA, thereby subjecting each to a claim for negligent staffing. Additionally, the judge found sufficient facts to exist to support a claim against St. Barnabas for fraud arising from its advertising and marketing. Because the judge recognized a cause of action for fraud, he also preserved plaintiffs' claim for punitive damages against the hospital, but limited such damages to the claims of fraud.
On appeal, defendants St. Barnabas and EMA contend that the motion judge erred in denying summary judgment in their favor on the negligent staffing and fraud issues.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining the existence of a material issue of fact, the judge should determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 213 (1986)). In other words, if "the evidence 'is so one-sided that one party must prevail as a matter of law,' Liberty Lobby, supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214, the trial court should not hesitate to grant summary judgment." Ibid. We employ the same standards when reviewing cases in which summary judgment has either been granted or denied. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review questions of law pursuant to a de novo standard. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
St. Barnabas argues as a matter of law that plaintiffs cannot maintain a claim of common-law fraud against it. We decide this issue as a matter of law and fact.
A misrepresentation amounting to actual legal fraud consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment. The elements of scienter, that is, knowledge of the falsity and an intention to obtain an undue advantage therefrom are not essential if plaintiff seeks to prove that a misrepresentation constituted only equitable fraud. [Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624-25 (1981) (internal citations omitted).]
In this matter, plaintiffs have pled both legal and equitable fraud. However, they have not sought equitable relief. Since that is the only relief available in an action alleging equitable fraud, that cause of action must fail as a matter of law. Id. at 625; Foont-Freedenfeld Corp. v. Electro-Protective Corp., 126 N.J. Super. 254, 257 (App. Div. 1973), aff'd, 64 N.J. 197 (1974).
In order to prevail on a claim of legal fraud, plaintiffs must satisfy each element of the cause of action by clear and convincing evidence. Stoecker v. Echevarria, 408 N.J. Super. 597, 617 (App. Div.), certif. denied, 200 N.J. 549 (2009); Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). Our review of the record before the motion judge satisfies us that plaintiffs are unable to meet this burden.
The record reveals that the website maintained by St. Barnabas contained two statements of relevance to the issue of fraud. A description of the hospital's Department of Emergency Services indicated that it is "[s]taffed by a rotating team of 15 full time board-certified physicians including pediatric emergency medicine specialists." Further, a description of its Pediatric Emergency Services indicated that it was staffed "with physicians who are all specialists in pediatric emergency medicine." The term "specialists" has a defined legal meaning in New Jersey:
[I]t is settled beyond question that "one who holds himself out as a specialist must employ not merely the skill of a general practitioner, but also that special degree of skill normally possessed by the average physician who devotes special study and attention to the particular organ or disease or injury involved, having regard to the present state of scientific knowledge." Carbone v. Warburton, 22 N.J. Super. 5, 9 (App. Div. 1952), approvingly quoted by our Supreme Court in Carbone v. Warburton, supra, (11 N.J.  at page 426 [(1953)]. [Crego v. Carp, 295 N.J. Super. 565, 576 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).]
Significantly, the website does not state that all pediatric emergency medicine specialists are board certified in that discipline, and it cannot reasonably be interpreted as suggesting that fact.
Moreover, we note that an element of a cause of action for fraud is knowledge of the falsity of the statement by the utterer. While plaintiffs may regard Dr. Reyman's qualifications as below those of a specialist, there is absolutely no evidence of such knowledge or belief by St. Barnabas in this case. Indeed, it has been the hospital's consistent position that Dr. Reyman possesses the specialized knowledge required of her for service as a pediatric emergency physician. The discovery produced in this matter discloses no evidence to the contrary on the issue of knowledge of falsity.
Further, in order to prevail on a claim of fraud arising from the statements contained on St. Barnabas' website, plaintiffs must demonstrate, by clear and convincing evidence, that they relied on the statements to their detriment.
Clear and convincing evidence . . . "produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established"[; it is] evidence "so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction without hesitancy, of the precise facts in issue." [In re Subryan, 187 N.J. 139, 144 (2006) (quoting In re Seaman, 133 N.J. 67, 74 (1993)).]
Because, as we previously noted, Andrew Rabinowitz could not remember with any certainly whether he had visited the St. Barnabas website prior to Rebecca's birth, and no evidence of reliance has been produced with respect to Phyllis Rabinowitz, plaintiffs cannot prevail on their claim of fraud insofar as it is premised on the website's content.
Andrew Rabinowitz has testified that he was primarily influenced by statements made during the course of the tour provided of the St. Barnabas facilities. In that connection, he alleged that St. Barnabas had represented that it had pediatric emergency doctors on staff and that it operated a pediatric emergency room. This testimony, likewise is insufficient to meet plaintiffs' burden of proving fraud, since it provides no evidence of a fraudulent statement and no evidence that any statements were uttered with knowledge of their falsity. As a result, we find that the motion judge was mistaken in his determinations to deny summary judgment in favor of St. Barnabas on plaintiffs' claims of fraud and to preserve plaintiffs' punitive damage claim.
Having reached this conclusion on the basis of traditional tort principles, we do not address the further issue of whether prior decisions in medical malpractice actions, dismissing claims of fraud against physicians and holding that they are subsumed within causes of action based on lack of informed consent, apply to non-physician defendants such as a hospital or a staffing service employing the allegedly malpracticing physician. See Liguori v. Elmann, 191 N.J. 527, 548-49 (2007), Howard v. Univ. of Med. and Dentistry of N.J., 172 N.J. 537, 552-54 (2002) and Starozytnyk v. Reich, 377 N.J. Super. 111, 123-27 (App. Div. 2005). We nonetheless note the comment of the Supreme Court in Howard that: we are not convinced that our common law should be extended to allow a novel fraud or deceit-based cause of action in this doctor-patient context that regularly would admit of the possibility of punitive damages, and that would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting. [Howard, supra, 172 N.J. 553-54.]
We find the Court's concerns to have substantial relevance in the present, similar context.
Both St. Barnabas and EMA argue that the motion judge erred in denying summary judgment in their favor on plaintiffs' negligent staffing claims. They are joined in that position by amicus ACEP. They argue that the Health Care Facilities Planning Act and its implementing regulations establish the proper standard of care, which was not breached in this case. They point to the fact that provisions governing licensing standards found at N.J.A.C. 8:43G-12.3(b) and (c), setting forth emergency department staff qualifications, provide:
(b) Each physician practicing in the emergency department . . . shall meet at least one of the following qualifications:
1. Board certification in emergency medicine;
2. Successful completion of an approved residency program in emergency medicine, family medicine, general internal medicine, general surgery, or general pediatrics; or
3. Three years of full-time clinical experience in emergency medicine within the past five years.
(c) Each physician practicing in the emergency department . . . shall attain provider status in Advanced Cardiac Life Support and either Advanced Pediatric Life Support or Pediatric Advanced Life Support within 12 months of initial assignment, and shall continuously maintain this status thereafter. Physicians who are board certified in emergency medicine shall be exempt from this requirement.
St. Barnabas and EMA note, without contradiction, that Dr. Reyman meets all three of these alternative qualifications.
The regulations further provide in N.J.A.C. 8:43G-12.5:
(a) At all times at least one licensed physician who meets at least one of the qualifications in N.J.A.C. 8:43G-12.3(b) shall be present in the emergency department to attend to all emergencies.
(b) There shall be a physician specialist on call to the emergency department for each major clinical service provided by the hospital, including a physician who is credentialed by the hospital to care for children and who is either board certified in pediatrics or has attained provider status in Advanced Pediatric Life support or Pediatric Advanced Life Support.
Plaintiffs do not claim noncompliance with this regulation. There is no separate licensing standard for facilities designated as pediatric emergency rooms.
Plaintiffs argue that a regulatory licensing standard may provide evidence relevant to a tort standard, but that the two are not necessarily the same. In the present case, they claim that St. Barnabas and EMA must be judged in accordance with a higher standard because they held themselves out as establishing a specialized pediatric emergency facility, staffed with appropriate personnel, which plaintiffs define as consisting either of a pediatrician or a pediatric emergency doctor. As the result of defendants' failure to do so, they argue, "plaintiffs suffered the very harm that could have been avoided had SBMC lived up to its promises to have a properly staffed Pediatric Emergency Department."
The difficulty that we have with plaintiffs' argument is that plaintiffs have failed to establish a standard of care that was breached either by St. Barnabas or EMA. In a medical malpractice context, the Supreme Court has stated:
Traditionally, courts measure a doctor's duty in a medical malpractice action by an objective standard of care. With rare exception, expert testimony is needed to establish the standard of care. See Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985) ("[I]n the ordinary medical malpractice case, 'the standard of practice to which [the defendant-practitioner] failed to adhere must be established by expert testimony . . . .'") (citation omitted); Schueler v. Strelinger, 43 N.J. 330, 345 (1964) (holding that with rare exceptions, evidence of deviation from accepted medical standards must be provided by expert testimony).
Expert testimony is necessary to establish the standard of care in a medical malpractice action for several reasons. "Ordinarily a jury of laymen cannot be allowed to speculate as to whether the procedure followed by a treating physician conformed to the required professional standards." Schueler, supra, 43 N.J. at 345. See also Walck v. Johns-Manville Products Corp., 56 N.J. 533, 562 (1970) ("ordinarily, a court cannot be permitted to speculate as to whether the diagnosis and procedure followed by a treating physician conformed to the required professional standards."). In most cases, without expert testimony, it would expect too much of jurors to ask them to set the standard by which to measure a medical doctor's conduct.
As we have explained, jurors generally lack the "'requisite knowledge, technical training, and background to be able to determine the applicable standard without the assistance of an expert.'" Rosenberg, supra, 99 N.J. at 325 (quoting Sanzari, supra, 34 N.J. at 134-35). [Morlino v. Med. Ctr. of Ocean County, 152 N.J. 563, 578-79 (1998).]
We find the requirement that an expert establish the standard of care to be equally applicable in the present negligent staffing context, since the staffing appropriate to a pediatric emergency room is a complex medical matter beyond the ken of an average juror.
In this case, plaintiffs place reliance on their experts Drs. Paynter and Belfer. However, our review of their reports satisfies us that neither has set forth a standard that is generally accepted in the hospital or staffing community. Cf. Velazquez v. Portadin, 163 N.J. 677, 686 (2000) ("the physician will be held negligent if his or her action 'represent[s] a departure from the requirements of accepted medical practice[.]'" (quoting Schueler v. Strelinger, 43 N.J. 330, 345 (1964)); Jones v. Stess, 111 N.J. Super. 283, 287 (App. Div. 1970) (requiring conformance with the standard recognized in the field in which defendant was engaged); Terhune v. Margaret Hague Maternity Hosp., 63 N.J. Super. 106, 111 (App. Div. 1960) (plaintiff is required to establish that defendant's performance fell below the standard established and recognized by the medical profession).
In this regard, Dr. Paynter states that "SBMC proclaimed to the public that their Pediatric Emergency Department (PED) was staffed with physicians who were all specialists in pediatric emergency medicine." He then concludes that "SBMC failed to meet its own staffing standards and therefore deviated from the standard of care." In reaching this conclusion, Dr. Paynter asserts that only a pediatric emergency doctor or pediatrician would meet this standard. However, he offers no evidence that this conclusion is anything other than the doctor's personal opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
Dr. Befler's conclusions are specifically stated to constitute his own views. He states: "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." We find this statement insufficient to establish a standard of care with respect to the staffing of pediatric emergency rooms or a deviation from that standard.
Accordingly, we reverse the denial of summary judgment to St. Barnabas and EMA on plaintiffs' negligent staffing claim. Our reliance on established principles with respect to the standard of care in a medical context renders consideration of the remaining arguments of defendants and amicus curiae unnecessary.
To summarize our decision in this matter, we reverse the denial of summary judgment to St. Barnabas on plaintiffs' claim of fraud, and we reverse the denial of summary judgment to St. Barnabas and EMA on plaintiffs' negligent staffing claims.
Reversed and remanded for trial.