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Rowena Balmaceda and Romeo Balmaceda, As Co-Administrators For the v. Marco A. Pelosi

September 25, 2012

ROWENA BALMACEDA AND ROMEO BALMACEDA, AS CO-ADMINISTRATORS FOR THE ESTATE OF RONAMAE BALMACEDA AND ON BEHALF OF THE HEIRS OF RONAMAE BALMACEDA, PLAINTIFFS-RESPONDENTS,
v.
MARCO A. PELOSI, III, M.D., MARCO PELOSI, M.D., P.A., D/B/A PELOSI WOMEN'S MEDICAL CENTER AND MYRON S. SOLED, M.D., DEFENDANTS, AND AHMAD KHALILI, M.D., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6535-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2012

Before Judges Yannotti and Hoffman.

By leave granted, defendant Ahmad Khalili, M.D. appeals the trial court's orders denying his motion to dismiss and motion for reconsideration related to plaintiffs' complaint alleging that defendant committed malpractice in his capacity as a hospital administrator. Finding no abuse of discretion by the trial court, we affirm.

I.

On November 30, 2010, plaintiffs, Rowena Balmaceda and Romeo Balmaceda, as co-administrators of the Estate of Ronamae Balmaceda, filed a medical malpractice complaint against various defendants, including Dr. Khalili, claiming that the death of their daughter, Ronamae, on January 6, 2010 was a result of substandard medical care at the time of her birth.

Ronamae was delivered on August 6, 1999 at Bayonne Medical Center by her mother's attending obstetrician, defendant Marco Pelosi, III, M.D. Plaintiffs claim Dr. Pelosi improperly performed a Caesarian section to deliver Ronamae by utilizing a vacuum extractor device to pull the infant's head out of the Caesarean incision. According to plaintiffs, the procedure was not required to ensure a safe delivery, was not recommended by the product manufacturer and was not in accordance with the standard of care. As a result of her traumatic birth, plaintiffs claim Ronamae suffered severe and permanent neurological injuries, which eventually caused her death.

Dr. Khalili was sued in his capacity as Chairman of the Obstetrics and Gynecology Department at Bayonne Hospital. Plaintiffs allege Dr. Khalili was negligent by failing to establish proper protocols and procedures for the appropriate use of a vacuum extractor.

Plaintiffs had filed a previous complaint naming Dr. Khalili as a defendant on April 17, 2009, wherein plaintiffs alleged he negligently treated Ronamae and her mother. The prior complaint made no mention of any claims against Dr. Khalili in his administrative capacity as department chairman. The dismissal of this prior complaint forms the basis of Dr. Khalili's appeal.

On June 21, 2010, Dr. Khalili filed an answer to plaintiffs' 2009 complaint. In the answer, he denied that "any injury or damage which plaintiffs may have suffered was the result of the act or acts of a third person or persons over whom" the defendant had control. Relevant to the instant appeal, Dr. Khalili claimed that he was "entitled to a dismissal pursuant to N.J.S.A. 2A:53A-40."

N.J.S.A. 2A:53A-40 provides in relevant part:

a. A health care provider named as a defendant in a medical malpractice action may cause the action against that provider to be dismissed upon the filing of an affidavit of noninvolvement with the court.

The affidavit of noninvolvement shall set forth, with particularity, the facts that demonstrate that the provider was misidentified or otherwise not involved, individually or through its servants or employees, in the care and treatment of the claimant, and was not obligated, either individually or through its servants or employees, to provide for the care and treatment of the claimant, and could not have caused the ...


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