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Marquis A. Walker, Executor and Personal Representative of the Estate v. Ilmia Choudhary

March 30, 2012

MARQUIS A. WALKER, EXECUTOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF SABRINA GRIFFIN, DECEASED, PLAINTIFF-APPELLANT,
v.
ILMIA CHOUDHARY, M.D., TARA KIGER, M.D., DOMINIC DIORIO, M.D., FRANK LASALA, M.D., S.J.E.R. PHYSICIANS, P.C., SOUTH JERSEY REGIONAL MEDICAL CENTER, AND SOUTH JERSEY HEALTHCARE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1212-07.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 13, 2011

Before Judges Cuff, Waugh and St. John.

The opinion of the court was delivered by ST. JOHN, J.S.C. (temporarily assigned).

In this medical malpractice and wrongful death action, plaintiff, the executor of decedent's estate, appeals three orders dated August 1, 2008, November 20, 2009, and July 9, 2010, each granting summary judgment to defendants, a doctor, a medical practice group, and a company that owns a hospital, respectively, allegedly responsible for administering care to decedent. Plaintiff contends that one of the doctors sued outside the two-year statute of limitations should be subject to suit under the "relation-back" doctrine, Rule 4:9-3, because she had knowledge of the litigation before the end of the statutory period. Plaintiff also contends that, under the principle of respondeat superior, the medical practice group that employs the doctor and the company that owns the hospital should be subject to suit regardless of whether the action against the alleged tortfeasor doctor is barred by the statute of limitations.

We reverse and remand with instructions for the court to conduct an evidentiary hearing with regard to the doctor's knowledge of the pending litigation and whether she was prejudiced by the delay in naming her as a defendant. We also reverse the summary judgment orders granted in favor of the medical practice group and the company that owns the hospital.

I.

On November 20, 2007, plaintiff Marquis Walker, as executor and personal representative of the estate of Sabrina Griffin (decedent), filed a complaint against Ilmia Choudhary, M.D., Dominic Diorio, M.D., Frank LaSala, M.D., South Jersey Health Systems Emergency Physician Services, P.A. (Physician Services), South Jersey Regional Medical Center (Medical Center), and South Jersey Healthcare (Healthcare). Defendants Choudhary, Diorio and LaSala are doctors employed by defendant Physician Services, the medical practice group engaged to staff the emergency department at the Medical Center. Defendant Healthcare owns the Medical Center.

The complaint alleged wrongful death and medical malpractice by defendants during decedent's treatment at the Medical Center on November 30, 2005, which allegedly resulted in her death on December 5, 2005. All of the above named defendants were served with process on December 5, 2007, which was the last day of the two-year statute of limitations for claims for wrongful death, N.J.S.A. 2A:31-3, and medical malpractice, N.J.S.A. 2A:14-2.

On February 20, 2008, Diorio moved to dismiss the complaint against him based on an Affidavit of Non-Involvement. N.J.S.A. 2A:53A-50. Diorio certified that, while he was an attending physician at the Medical Center on November 30, 2005, he did not administer medical care to decedent. Decedent's medical records indicate Tara Kiger, M.D., who is also employed by Physician Services, was her attending physician on that day.

On February 28, 2008, plaintiff filed a motion to amend the complaint to add Kiger as a defendant. On March 28, 2008, the motion judge entered orders granting Diorio's motion to dismiss the complaint against him and plaintiff's motion to add Kiger as a defendant.

On April 10, 2008, plaintiff filed an amended complaint naming Kiger as a defendant. Kiger answered on June 19, 2008, denying any medical malpractice, while preserving her statute of limitations defense. She subsequently filed a motion for summary judgment, seeking dismissal of the complaint against her, arguing that plaintiff's claims were time-barred. On August 1, 2008, the motion judge heard oral arguments and granted Kiger's motion, dismissing the complaint against her with prejudice.

Following Kiger's dismissal, Physician Services filed a motion for partial summary judgment, seeking dismissal of the claims against it for vicarious liability stemming from Kiger's actions as the alleged tortfeasor, arguing that it could not be liable because Kiger was no longer a defendant in the case. On November 20, 2009, the motion judge granted Physician Services' motion.

On June 9, 2010, plaintiff filed a motion for reconsideration of the summary judgment orders granted in favor of Kiger and Physician Services. Shortly thereafter, the Medical Center and Healthcare cross-moved for partial summary judgment, also seeking dismissal of the claims against them for vicarious liability stemming from Kiger's alleged malpractice. On July 9, 2010, the motion judge denied plaintiff's motion for reconsideration, and granted Medical Center and Healthcare's motion for partial summary judgment.

The parties then filed stipulations dismissing the claims against the remaining individual doctors, Choudhary and LaSala, as well as against the Medical Center.

Plaintiff appeals the summary judgment orders in favor of Kiger, Physician Services, and Healthcare.

II.

"On appeal from an order granting summary judgment, we apply the same standard that governs the analysis by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 189 N.J. 104 (2006). "We therefore must first determine whether, giving the non-moving party the benefit of all reasonable inferences, the movant has demonstrated that there are no genuine issues of material fact." Id. at 230-31 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We next analyze whether the motion judge's application of the law was correct. Id. at 231; see also Prudential, supra, 307 N.J. Super. at 167. In carrying out our review, however, we owe no deference to the interpretation of the motion judge on matters of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A.

We first address the issue of whether the "relation-back" doctrine saves plaintiff's claim against Kiger. R. 4:9-3.

Plaintiff contends that the amended complaint should have been permitted and that the judge should have determined that the claims plaintiff sought to assert against Kiger related back to the original filing date. This position is governed by Rule 4:9-3, which states in full:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the ...


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