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Nancy S. Monk, General Administratrix and Administratrix Ad v. Joseph J. O'connell

October 11, 2012

NANCY S. MONK, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DR. SCOTT MONK, DECEASED, AND NANCY S. MONK, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
JOSEPH J. O'CONNELL, D.O.; ED CYBOLSKY, R.N.; MARK MACKAVANAGH, R.N.; VIRTUA/WEST JERSEY HOSPITAL, DEFENDANTS, AND EMERGENCY PHYSICIAN ASSOCIATES, P.A., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6279-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 18, 2012

Before Judges Axelrad and Ostrer.

Dr. Scott Monk sought emergency medical care at Virtua/West Jersey Hospital (Virtua) on September 1, 2006. He was attended by Dr. Joseph O'Connell who was working at Virtua under a contract between Virtua and Emergency Physician Associates, Inc. (EPA). Dr. Monk died later that day as a result of a massive dose of narcotic pain killers that suppressed his respiratory system. Dr. Monk's widow, Nancy Monk, as administrator of Dr. Monk's estate, and individually, sued EPA asserting it was vicariously liable for Dr. O'Connell's alleged negligence.*fn1

The trial court granted EPA's motion for summary judgment, and denied plaintiff's cross-motion for partial summary judgment. The court concluded Dr. O'Connell was an independent contractor and not EPA's employee, and consequently, EPA was not vicariously liable for his actions. We reverse.

I.

Dr. Monk went to Virtua's emergency room on September 1, 2006 complaining of pain from renal colic. Dr. O'Connell was the only physician on duty in the emergency room. Over the course of less than two hours, Dr. Monk received three twomilligram doses of Dilaudid, a potent narcotic pain medication. According to plaintiff's expert, this was roughly six to nine times the recommended maximum dose. Just over an hour after he received the last Dilaudid dose, Dr. Monk was discovered with no pulse and later died.

EPA is in the business of recruiting emergency room physicians and placing them at New Jersey hospitals. In 2001, EPA entered into a contract with Dr. O'Connell for him to perform professional emergency physician services at Virtua. EPA also entered into a contract with Virtua to place doctors like Dr. O'Connell in Virtua's emergency department. The parties do not dispute that these contracts define the respective relationships of the parties.

We review first the contract between EPA and Dr. O'Connell. The contract provided that Dr. O'Connell would provide medical care "in a manner which [he] shall exclusively determine but within the guidelines of good medical practices." EPA agreed it "shall neither have nor exercise any control or direction over the methods by which [O'Connell] agrees to perform his said work" so long as he acts in accordance with currently approved practices. He was to comply with "all general rules and regulations established by the Hospital."

EPA was empowered to terminate the agreement immediately for cause, or without cause upon thirty days' written notice. Although "cause" is not expressly defined, we presume it included Dr. O'Connell's failure to perform medical services in a competent manner. EPA could terminate the contract if Dr. O'Connell competed with EPA or interfered with any EPA contractual relationship, if EPA's contract with the hospital became null and void, if EPA were dissolved, or if O'Connell were disabled for more than thirty days. Dr. O'Connell retained the right to terminate the agreement at the end of an existing one-year term or on ninety days' notice.

The contract specified a price EPA would pay Dr. O'Connell for each clinical hour worked, to be paid at least once per month. Dr. O'Connell said he also received bonuses, above his hourly salary, based on the number of patients seen and the intensity of care, as determined by EPA. The contract required Dr. O'Connell to maintain prescribed levels of malpractice insurance, but Dr. O'Connell testified that EPA paid the premium.

The contract restrained Dr. O'Connell from competition. Although Dr. O'Connell was not prohibited from practicing medicine outside the contract, he was prohibited from treating anyone in the Virtua Emergency Department as a private patient. Dr. O'Connell was required to remit to EPA anything of value he received as a result of his services as an emergency physician at Virtua. During his contract, and for two years thereafter, Dr. O'Connell could not perform emergency department services at any hospital that had contracted with EPA in the preceding year.

The contract was denominated an "Independent Contractor's Agreement" and stated it did not create an employee relationship. EPA would not withhold taxes and Dr. O'Connell agreed he would have no claim for sick leave, vacation pay, retirement benefits, worker's compensation, or disability and unemployment insurance benefits.

We turn next to EPA's professional service agreement with Virtua. Under the agreement, EPA staffed Virtua's emergency room. Virtua agreed that, with limited exceptions, EPA would be the exclusive source of emergency room physicians as well as emergency department professional supervisory and teaching services. EPA assumed responsibility for provision of professional services "through EPA Provided Physicians." The clause entitled "Services Provided by EPA" stated:

A. EPA, through EPA Provided Physicians, shall assume the responsibility for the professional services rendered in the Departments and shall render such services in a professional, competent, effective and efficient manner consistent with accepted standards of the medical profession[] and the local medical community.

B. EPA, through EPA Provided Physicians, shall render professional physician services which are usually and customarily rendered in the Departments, including without limitation: (1) the prompt evaluation and treatment of acute medical needs of every patient who presents to the Department for medical care, except those patients requesting treatment by their personal physicians who do not need immediate medical treatment and (2) ...


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