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Demetria Garry As Guardian Ad Litem For Jaziyah Garry, A Minor, and Demetria Garry, Individually v. University of Medicine and Dentistry of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 6, 2011

DEMETRIA GARRY AS GUARDIAN AD LITEM FOR JAZIYAH GARRY, A MINOR, AND DEMETRIA GARRY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL,
UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES, DEFENDANTS-RESPONDENTS, AND NEWARK BETH ISRAEL HOSPITAL, DEFENDANT, AND UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL, UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES, THIRD-PARTY PLAINTIFFS,
v.
ELENA KOSHKARELLA, R.N., AND LOVING CARE AGENCY, INC., THIRD-PARTY DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5854-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 13, 2011

Before Judges Fuentes, Gilroy and Nugent.

Plaintiff, Jaziyah Garry, a minor by her Guardian ad Litem Demetria Garry, and Demetria Garry, individually, appeal from the January 8, 2010 order that granted summary judgment to defendants University of Medicine and Dentistry of New Jersey (UMDNJ), University Hospital, and University Hospital Emergency Medical Services (collectively, the University Hospital defendants).*fn1 We affirm.

Viewed most favorably for plaintiffs, the motion record reveals the following. Jaziyah, born in August 2005, resided at home with Demetria in Newark. The child suffered from a congenital condition that required her to be maintained via a home ventilator with oxygen, a suction machine, and a feeding tube device in place. Demetria received in-home assistance in caring for her daughter from private-duty nurses through the Loving Care Agency, Inc. Elena Koshkarella, R.N., is a private duty nurse employed by the agency.

On June 2, 2007, Demetria requested emergency medical services for her daughter from the UMDNJ. The UMDNJ's ambulance and mobile intensive care unit (MICU) paramedics responded to the Garry home to transfer the child to Newark Beth Israel Medical Center.*fn2 The paramedics first exited the home, followed by Demetria who carried her daughter. Koshkarella next exited the home carrying the oxygen tank and ventilator equipment. Once outside the home, Demetria handed her daughter to one of the paramedics to place the child on a stretcher and then into the ambulance. Koshkarella handed the oxygen tank to another paramedic who placed the oxygen tank and ventilator onto the stretcher. Demetria and Koshkarella then entered the ambulance and accompanied the child to Newark Beth Israel Medical Center. En route to the hospital, the paramedics heard the oxygen tank hiss. Because the tank contained liquid oxygen and had been placed on or near the child's leg, Jaziyah suffered second-degree burns to her thigh and buttocks.

On July 27, 2009, plaintiffs filed an amended complaint against the University Hospital defendants and Newark Beth Israel Medical Center.*fn3 Plaintiffs asserted negligence against the University Hospital defendants for, among other things, failing to properly secure the oxygen tank during transport. Demetria also asserted a claim for emotional distress against the University Hospital defendants pursuant to Portee v. Jaffee, 84 N.J. 88 (1980). Lastly, plaintiffs asserted negligence against Newark Beth Israel Medical Center for failing to properly treat*fn4 Jaziyah.

On October 30, 2009, the University Hospital defendants filed a motion for summary judgment asserting qualified immunity pursuant to N.J.S.A. 26:2K-14. Plaintiffs opposed the motion asserting that they had not commenced discovery in the action, and that there was an issue of material fact as to whom placed the oxygen tank on or near the child's leg. On January 8, 2010, Judge Claude Coleman granted the motion determining that future discovery would not change the undisputed facts. The judge concluded that the paramedics had rendered advance life support services during transport in good faith and, therefore, were entitled to qualified immunity, pursuant to N.J.S.A. 26:2K-14. The court entered a memorializing order the same day.*fn5

On appeal, plaintiffs argue that the trial court erroneously: 1) granted summary judgment to the University Hospital defendants because there were material facts in dispute; 2) granted summary judgment before the close of discovery; and 3) concluded that the University Hospital defendants were entitled to immunity.

A trial court will grant summary judgment to the moving party "if 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

In Point I of plaintiffs' brief, they argue that the trial court erroneously granted the motion for summary judgment, contending that there were material issues of fact in dispute as to whom had placed Jaziyah on the stretcher and who bore responsibility for reviewing the status of the oxygen equipment during transport to the hospital. Plaintiffs contend that contrary to the aforementioned facts, the University Hospital defendants had averred in their moving papers that Demetria had placed her daughter on the stretcher and had checked the placement of the oxygen tank while en route to Newark Beth Israel Medical Center. We disagree that such averments raise genuine issues of material fact requiring denial of the motion.

The University Hospital defendants conceded at oral argument that, for the purpose of the motion, the court should deem the facts as stated earlier in this opinion as true. The trial court did. Accordingly, no dispute of material fact existed requiring the denial of the motion.

Plaintiffs argue next that the trial court erroneously granted the motion prematurely as they had not yet commenced discovery. The trial court disagreed, determining that further discovery would not change the material facts cited. Because plaintiffs have failed to show how additional discovery would have affected the outcome of the motion, we concur. Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003). Simply stated, where "[a] party [opposes] summary judgment on the ground that more discovery is needed[,] [he or she] must specify what further discovery is required, rather than simply [assert] a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Here, plaintiffs not only failed to satisfy that obligation, but also candidly acknowledged that they had not served any discovery on the University Hospital defendants as of the time of the motion.

Lastly, plaintiffs argue that the trial court improperly granted summary judgment to the University Hospital defendants under the statute. Not so.

N.J.S.A. 26:2K-14 is one of several statutes that provides qualified immunity to individuals providing medical assistance to others. Frields v. St. Joseph's Hosp. &. Med. Ctr., 305 N.J. Super. 244, 247 (App. Div. 1997). That statute provides good faith immunity to MICU paramedics when providing "advanced life support services" to third parties:

No mobile intensive care paramedic, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, first aid, ambulance or rescue squad, or officers and members of a rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of advanced life support services in good faith and in accordance with this act. [N.J.S.A. 26:2K-14.]

The term "advanced life support services" is defined in the Act as meaning:

[A]n advanced level of pre-hospital, inter-hospital, and emergency service care which includes basic life support functions, cardiac monitoring, cardiac defibrillation, telemetered electrocardiography, administration of anti-arrhythmic agents, intravenous therapy, administration of specific medications, drugs and solutions, use of adjunctive ventilation devices, trauma care and other techniques and procedures authorized in writing by the commissioner[.] [N.J.S.A. 26:2K-7a.]

Although plaintiffs acknowledged at the time of oral argument that the paramedics' actions in administering oxygen to Jaziyah during transport fell within the definition of advanced life support services under the statute, plaintiffs maintain that the University Hospital defendants had failed to establish that such services were provided in "good faith" as that term is used in the statute. The trial judge disagreed, and so do we.

Good faith has been defined as honesty of purpose and integrity of conduct without knowledge, either actual or sufficient to demand inquiry, that the conduct is wrong. The issue of whether a person acted in good faith is often a question of fact which should be decided at a plenary hearing. Summary judgment, however, is appropriate when the employee demonstrates that his/her actions were objectively reasonable or that [he] performed them with subjective good faith. This test recognizes that even a person who acted negligently is entitled to a qualified immunity, if he acted in an objectively reasonable manner. [Frields, supra, 305 N.J. Super. at 248 (internal quotations and citations omitted).]

We have considered plaintiffs' last argument against the aforementioned legal principles and conclude, as in Frields, that although plaintiffs may have stated a claim for paramedic negligence, that negligence does not strip the paramedics of their statutory immunity. Ibid. Accordingly, we affirm.

Affirmed.


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