JAMES R. JARRELL v. RICHARD A. KAUL, M.D.

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3492-11T1




JAMES R. JARRELL and

SHEILA G. JARRELL, his wife,


Plaintiffs-Respondents/

Cross-Appellants,


v.


RICHARD A. KAUL, M.D.,


Defendant-Appellant/

Cross-Respondent,


and


MARKET STREET SURGICAL CENTER,


Defendant/Cross-Respondent,


and


JOHN T. FORD, SUSSEX COUNTY

TOTAL HEALTH CENTER, INC.,


Defendants.


_______________________________________

March 1, 2013


Argued January 29, 2013 Decided


Before Judges Yannotti, Harris and Hoffman.


On appeal from Superior Court of New Jersey, LawDivision, MorrisCounty, DocketNo. L-2634-07.


Jeffrey B. Randolph argued the cause for appellant/cross-respondent Richard A. Kaul, M.D.


Lewis Stein argued the cause for respondents/cross-appellants James R. Jarrell and Sheila G. Jarrell (Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys; Mr. Stein, on the brief).


Peter E. Rhatican argued the cause for cross-respondent Market Street Surgical Center.


PER CURIAM

In this medical malpractice case, the jury found that defendant Richard A. Kaul, M.D. (Dr. Kaul) deviated from the standard of care when he performed spine surgery upon plaintiff James R. Jarrell (Jarrell), and awarded damages to Jarrell and his wife Sheila G. Jarrell. Dr. Kaul appeals from the denial of his motion for a new trial or, alternatively, for remittitur. Plaintiffs cross-appeal from the dismissal of certain claims against Dr. Kaul and defendant Market Street Surgical Center (MSSC). For the reasons that follow, we affirm on the appeal and cross-appeal.

I.

We briefly summarize the salient facts, drawn from the evidence presented at trial. Jarrell had been experiencing back pain for more than twenty years. In June 2004, after the pain in the back and right leg increased, Jarrell sought treatment at Sussex County Total Health Center (SCTHC). John T. Ford, D.C. (Dr. Ford) provided chiropractic treatment to Jarrell, but he was unable to alleviate Jarrell's back and leg pain. Dr. Ford referred Jarrell to Dr. Kaul, a board-certified anesthesiologist.

Jarrell first saw Dr. Kaul on September 9, 2005. After examining Jarrell and reviewing the results of his MRI, Dr. Kaul determined that Jarrell was suffering from a herniated lumbar disc, lumbar radiculopathy and discogenic back pain. On October 3, 2005, Dr. Kaul performed a discogram and thereafter recommended that Jarrell undergo a lumbar interbody fusion at the L4-L5 and L5-S1 levels of his spine.

Jarrell accepted Dr. Kaul's recommendation. Accordingly, on October 11, 2005, Dr. Kaul performed the surgery upon Jarrell at MSSC. He fused Jarrell's L4, L5 and S1 vertebral bodies using fixation devices that included two mesh cages and pedicle screws. Dr. Kaul testified that he performed the surgery without complications.

Jarrell recalled, however, that when he awoke following the surgery, he felt pain in his left leg, which had never bothered him before. Dr. Kaul acknowledged that Jarrell had complained of back and left-leg pain after the surgery, but Dr. Kaul said such pain was not unusual.

On November 7, 2005, Dr. Kaul evaluated Jarrell. He testified that Jarrell was doing well at that time. Among other things, Dr. Kaul noted improvements in Jarrell's back and leg pain. According to Dr. Kaul, Jarrell performed the heel-to-toe-walking test normally.

On November 29, 2005, Jarrell fell while at work. He maintained that he fell because he could not lift his foot properly. On December 1, 2005, Jarrell fell again at work. He testified that he "just kind of leaned back a little bit and landed on [his] elbows and sunk into the dirt." Because Jarrell had complained of severe left leg pain, Dr. Kaul ordered neurological testing.

Dr. Bruce M. Jacobson (Dr. Jacobson) performed an initial consultation. Dr. Jacobson noted that Jarrell had been complaining of left leg pain down to the foot for six weeks following the surgery, and Jarrell had reported that the pain was gradually worsening. Dr. Jacobson performed a neurological exam and noted that Jarrell was unable to walk on his left heel due to pain in his left foot.

On December 2, 2005, Jarrell again visited Dr. Ford for further chiropractic treatment. According to Jarrell, Dr. Ford told him to get on the examination table so that he could "try something." Dr. Ford manipulated Jarrell's spine. Jarrell said that the procedure caused him acute pain but the pain quickly dissipated. Jarrell commented that it felt like Dr. Ford had broken his fusion.

Later that month, Jarrell had follow-up visits with Dr. Kaul, who ordered a CT scan of Jarrell's lumbar spine to determine if there had been any displacement of the fusion implant. At the December 26, 2005 visit, Jarrell said that the pain in his left leg was getting worse. Dr. Kaul reviewed the report of the CT scan and examined Jarrell. Dr. Kaul said the fusion implant was irritating the L4 nerve root on Jarrell's left side. Dr. Kaul recommended further surgery.

On January 9, 2006, Jarrell sought treatment with Alfred Steinberger, M.D. (Dr. Steinberger), a neurosurgeon. Dr. Steinberger performed a physical examination, which indicated that Jarrell had a very painful gait, favoring his left side. Dr. Steinberger said Jarrell was unable to walk on his left heel. According to Dr. Steinberger, the neurological exam showed that Jarrell had a "profound weakness" of the muscles that elevate the foot and toes.

Dr. Steinberger also found that the implant material was pinching Jarrell's nerve. He thought the pedicle screws at L5 and S1 had been misplaced. Dr. Steinberger recommended surgery to address these issues. Jarrell agreed. On January 31, 2006, Dr. Steinberger and another physician performed a decompression and fusion. They removed the previously-placed fusion material.

After the surgery, Jarrell reported that he felt much better. The intensity of the pain and its duration had improved markedly, and Jarrell was able to cut back on the pain medication he had been taking. However, Jarrell still had the left foot drop, which Dr. Steinberger described as a condition caused by an injury to the L4-L5 nerve that affects an individual's ability to elevate the foot and lift the toes.

On September 19, 2007, Jarrell and his wife filed their complaint in the Law Division, naming Dr. Kaul, Ford, SCTHC and MSSC as defendants. Jarrell asserted a claim against Dr. Kaul for medical malpractice, alleging that he departed from the applicable standard of care in his choice of procedure and the medical devices used in the surgery. Jarrell alleged that Dr. Kaul misrepresented his qualifications and training, and wrongfully obtained his consent for the surgery.

In addition, Jarrell claimed that SCTHC negligently engaged Dr. Ford to provide services he was not qualified to perform. He further claimed that Dr. Ford knew or should have known of the limitations on Dr. Kaul's qualifications to practice spine surgery, and was negligent in failing to provide services and qualifications in accordance with the standard of care. Jarrell also claimed that MSSC negligently and unreasonably facilitated Dr. Kaul's performance of spine surgery, notwithstanding his lack of qualifications for such procedures.

Jarrell's wife asserted a claim against Dr. Kaul, Dr. Ford, MSSC and SCTHC. She alleged that, as a result of the negligence of these defendants, she sustained a loss of her husband's companionship, consortium and services.

Thereafter, plaintiffs filed an amended complaint. They alleged that, at the time he performed the surgery upon Jarrell, Dr. Kaul did not have medical malpractice insurance or a letter of credit, as required by statute. Plaintiffs claimed that Dr. Kaul intentionally withheld this information from Jarrell. Plaintiffs alleged that Dr. Kaul's actions constituted deceit, misrepresentation and outrageous conduct. Plaintiffs also claimed that, as result, Dr. Kaul's performance of the surgery was non-consensual and constituted a battery.

On January 23, 2012, plaintiffs dismissed their claims against Dr. Ford and SCTHC.

In September 2010, plaintiffs filed a motion for summary judgment on the issue of Dr. Kaul's alleged negligence, based on his failure to maintain medical malpractice coverage for the performance of spine surgery and his failure to post a letter of credit. Plaintiffs therefore argued that Dr. Kaul had knowingly and intentionally practiced spine surgery without satisfying the conditions for licensure in New Jersey.

Dr. Kaul opposed the motion. He argued that he was in substantial compliance with the applicable statutory requirements, and plaintiffs' claim of lack of informed consent required expert testimony. Dr. Kaul further argued that the New Jersey courts have not recognized a cause of action for alleged violations of the statutory requirement for medical malpractice insurance or a letter of credit.

In a decision placed on the record on January 6, 2011, the motion judge stated that the evidence indicated that Dr. Kaul was not insured under a traditional medical malpractice policy for the performance of spine surgery. The judge noted, however, that Dr. Kaul claimed he had sufficient liquid assets to cover any judgments that may be entered against him.

According to the judge, Dr. Kaul had informed the Board of Medical Examiners (Board) of his "self-insured status." The judge stated that there was insufficient evidence to show that the Board had imposed any limits on Dr. Kaul's license to practice medicine. The judge concluded that plaintiffs were not entitled to summary judgment and entered an order denying plaintiff's motion.

On January 26, 2011, plaintiffs filed a motion for reconsideration. They argued that the evidence showed that Dr. Kaul was not insured and failed to comply with the statutory requirements for licensure. They maintained that Dr. Kaul had an obligation to advise Jarrell that he did not have medical malpractice insurance.

Plaintiffs therefore argued that the court should grant summary judgment in their favor on their claims against Dr. Kaul for deceit, misrepresentation and battery. Dr. Kaul opposed the motion. He argued that plaintiffs failed to meet the requirements for reconsideration. The motion judge agreed with Dr. Kaul and entered an order dated March 7, 2011, denying the motion.

On December 19, 2011, plaintiffs filed a motion in limine, seeking summary judgment on the claims against Dr. Kaul based on his failure to maintain medical malpractice insurance for spine surgery or a letter of credit. On January 5, 2012, Dr. Kaul opposed plaintiffs' motion and filed a cross-motion seeking summary judgment on those claims. MSSC later sought dismissal of the claims against it.

The trial court dismissed plaintiffs' claims against Dr. Kaul for deceit, misrepresentation, lack of informed consent and battery based on Dr. Kaul's failure to maintain medical malpractice insurance for spine surgery or a letter of credit. The court also dismissed plaintiff's claims against MSSC, noting that plaintiffs did not have an expert witness who could testify that MSSC breached its standard of care by allowing Dr. Kaul to perform spine surgery without medical malpractice insurance or a letter of credit.

Plaintiffs' remaining claims were tried before a jury, which found that, in performing the fusion surgery upon Jarrell, Dr. Kaul had deviated from the applicable standard of care. The jury awarded Jarrell $500,000 for pain, suffering, disability and the loss of the enjoyment of life. The jury also awarded Jarrell's spouse $250,000 on her claim.

The court entered a judgment dated February 2, 2012, in accordance with the jury's verdict. The court added prejudgment interest to the amounts awarded. In addition, with the parties' consent, the court awarded Jarrell $187,890.84 for medical expenses.

On February 6, 2012, Dr. Kaul filed a motion for a new trial or, alternatively, for remittitur. Plaintiffs opposed the motion. The court considered the motion on March 7, 2011, and placed its decision on the record. The court said that the evidence against Dr. Kaul was overwhelming and the amounts awarded by the jury were reasonable. The court entered an order dated March 7, 2012, denying Dr. Kaul's motion.

Dr. Kaul appeals from the judgment entered on February 2, 2012, and the order denying his motion for a new trial or remittitur. Plaintiffs thereafter filed a cross-appeal. They challenge the dismissal of their claims against Dr. Kaul based on his failure to maintain medical malpractice insurance for spine surgery or a letter of credit. They also challenge the dismissal of their claims against MSSC.

II.

We turn first to Dr. Kaul's argument that the trial court erred by denying his motion for a new trial. He contends the court made certain erroneous rulings that warrant reversal of the final judgment.

A. Dr. Steinberger's Testimony on Causation.

Dr. Kaul argues the trial court erred by permitting Dr. Steinberger to testify that he was required to perform surgery on Jarrell because Dr. Kaul had performed the initial surgical procedure incorrectly. Dr. Kaul contends this testimony "tainted the jury" and resulted in a miscarriage of justice.

As we stated previously, after the surgery, Jarrell sought treatment from Dr. Steinberger. Dr. Steinberger's examination revealed that Jarrell had a painful gait, favoring his left leg, as well as a very significant left-foot drop. Dr. Steinberger reviewed the radiological reports and found that the fusion material was pinching a nerve. He also found that the pedicle screws used in the fusion were misplaced. Dr. Steinberger and another physician performed surgery to address these conditions.

Dr. Steinberger testified that Jarrell's foot drop, leg pain and leg weakness were the result of the surgery that Dr. Kaul performed. He said Dr. Kaul performed the initial procedure because Jarrell had back pain, but after the surgery, Jarrell had a left-foot drop, as well as pain, weakness and numbness in his left leg. Dr. Steinberger testified "something" happened during the first surgery which caused these conditions.

Dr. Kaul argues that the trial court erred by allowing Dr. Steinberger to testify on causation because plaintiffs never produced an expert report with "a complete statement" of the doctor's testimony. Instead, plaintiffs' attorney provided a brief summary of Dr. Steinberger's anticipated testimony.

In support of these contentions, Dr. Kaul relies upon Rule 4:10-2(d)(1), which allows a party to request in interrogatories that another party identify any person the party intends to call as an expert witness. The rule also states that the interrogatories may require the production of the expert's report. Ibid. Dr. Kaul also relies upon Rule 4:17-4(e), which states that, if an interrogatory requests production of the report of an expert witness, the report must contain, among other things, "a complete statement of that person's opinions and the basis therefor[.]"

We are convinced there is no merit in this contention. Dr. Steinberger was Jarrell's treating doctor, and he was called as a fact witness, not an expert witness. Plaintiffs presented expert testimony on Dr. Kaul's deviation from the standard of care for spine surgery from Dr. Richard Hodosh (Dr. Hodosh). Therefore, plaintiffs were not required by Rule 4:10-2(d)(1) or Rule 4:17-4(e) to provide an expert report with a complete statement of Dr. Steinberger's opinions and the bases therefor. Moreover, it is well established that a treating doctor may testify as a fact witness and, in doing so, may discuss his diagnosis and treatment, including his opinion as to the cause of the patient's disorder. Stigliano v. Connaught Laboratories, 140 N.J. 305, 314 (1995).

B. Comments by Plaintiffs' Attorney and Expert Testimony.


Dr. Kaul contends that the trial court erred by permitting plaintiffs' attorney to comment in his opening statement that the Federal Drug Administration had not approved the implant material that Dr. Kaul used in the surgery. He further argues that the court erred by permitting Dr. Hodosh to testify that Dr. Kaul was not qualified to perform spine surgery.

Dr. Kaul asserts that the issues regarding the implant material and Dr. Kaul's qualifications to perform spine surgery were not issues submitted to the jury. He contends that the jury may have been confused by counsel's statement and Dr. Hodosh's testimony.

We note, however, that Dr. Kaul's counsel did not object to the comment by plaintiff's attorney or Dr. Hodosh's testimony. We are convinced that the court's failure sua sponte to strike the comment about the implant material or Dr. Hodosh's testimony regarding Dr. Kaul's qualifications was not an error clearly capable of producing an unjust result. R. 2:10-2.

Dr. Kaul additionally contends that, during a side bar with the court, plaintiffs' attorney stated that the Board had previously suspended Dr. Kaul's license to practice medicine. The court had ruled that evidence regarding Dr. Kaul's prior disciplinary history could not be admitted. Dr. Kaul asserts that plaintiff's attorney made the comment "in a stage whisper which was clear enough for the jury to hear." Dr. Kaul contends the remark tainted the jury.

Dr. Kaul's attorney did not raise this issue during the trial. In his post-trial affidavit, Dr. Kaul stated that he was on the witness stand at the time and heard plaintiffs' counsel make the remark. While Dr. Kaul may have heard the remark, there is nothing in the record indicating that any member of the jury actually heard the comment.

C. Failure to Charge on Intervening or Superseding Cause.

Dr. Kaul further argues that the trial court erred by denying his application for a jury instruction on intervening or superseding cause. Dr. Kaul contends that the charge was required in this case because, after the first surgery, Jarrell fell twice at work and underwent a chiropractic procedure that purportedly caused the injuries to Jarrell's back, left leg and left-foot drop.

Here, plaintiffs requested the following instruction, which was based on the model jury instructions:

In this case, Dr. Kaul claims that plaintiff's alleged injury was caused by an independent intervening cause and, therefore that Dr. Kaul was not a contributing factor to the alleged injury. In this case, Dr. Kaul alleges that two slip and fall accidents at work and a traumatic chiropractic manipulation by Dr. John Ford, D.C., are independent intervening causes of Plaintiff's alleged injuries.


An intervening cause is the act of an independent agency that destroys the causal connection between the defendant's negligence and the alleged injury. To be an intervening cause the independent act must be the immediate and sole cause of the injury. The intervening cause must be one that so completely supersedes the operation of Dr. Kaul's negligence that you find that the intervening event caused the alleged injury without Dr. Kaul's negligence contributing to it in any material way. In that case liability will not be established because Dr. Kaul's negligence is not a proximate cause of the alleged injury.


However, Dr. Kaul would not be relieved from liability for his negligence by the intervention of acts of third persons, if those acts were reasonably foreseeable. By that I mean, that the causal connection between Dr. Kaul's negligence and the alleged injury is not broken if the intervening cause is one that might, in the natural and ordinary course of things, be anticipated as not entirely improbable. Where the intervention of third parties is reasonably foreseeable, then there still may be a causal connection between the defendant's negligence and the alleged injury. The fact that there were intervening causes that were foreseeable or that were normal incidents of the risk created does not relieve the defendant of liability.


You must determine whether the alleged intervening cause was an intervening cause that destroyed the substantial causal connection between the defendant's negligent actions [or omissions] and the alleged injury. If it did, then Dr. Kaul's negligence was not a proximate cause of the alleged injury.


At trial, Dr. Hodosh testified that Dr. Kaul deviated from the standard of care by performing fusion surgery. He explained that Jarrell's MRI and CT scan indicated that he had a herniated disc above the levels of the spine where Dr. Kaul performed the surgery. Dr. Hodosh said there was no indication the right-leg pain that Jarrell complained about before the first surgery was due to any problem at the L4-L5 or L5-S1 levels of the spine, where Dr. Kaul performed the procedure.

Dr. Hodosh further testified there had been "a breach of the medial aspect" of the pedicle screw at the L4 level of the spine. He stated that, if the screw breached or pierced the medial aspect of the pedicle or if it had been directed inappropriately, "it could come through and go through one of the nerve roots." In addition, the fusion material may have migrated out of the disc space and was pushing on the nerve root. Dr. Hodosh said the misplacement of the screw or the migrated fusion material, or both, caused Jarrell's left-leg pain.

Dr. Hodosh additionally testified that Dr. Kaul deviated from the standard of care by failing to address Jarrell's left-foot drop earlier. Dr. Hodosh said that the weakness in Jarrell's left foot indicated that he was likely suffering from a foot drop. He stated that if this condition had been evaluated and treated promptly, Jarrell would have had a better chance of recovery.

Dr. Kaul presented testimony from Dr. David Basch (Dr. Basch), who is board certified in orthopedics and spine surgery. Dr. Basch testified that Dr. Kaul did not deviate from the standard of care in his treatment of Jarrell. He stated that it was appropriate for Dr. Kaul to perform the fusion surgery at L4-L5 and L5-S1. Dr. Basch attributed Jarrell's left-leg pain and left-foot drop to his "significant" post-operative falls and the chiropractic manipulation. Dr. Basch also found no fault with Dr. Kaul's follow-up care.

We are convinced that the trial court did not err by refusing to charge the jury on intervening or superseding case. Although Dr. Basch attributed Jarrell's injuries to the post-operative falls and the chiropractic procedure, he provided no medical explanation for that opinion. Thus, the evidence was insufficient to support a finding that Jarrell's falls or Dr. Ford's chiropractic treatment "completely supersede[d]" Dr. Kaul's negligence. The evidence also was insufficient to establish that Dr. Kaul's treatment did not contribute to Jarrell's condition "in any material way."

III.

We next consider Dr. Kaul's contention that the trial court erred by refusing to order a remittitur. Dr. Kaul contends that the jury's damage awards are excessive. We disagree.

The trial court's authority to remit a jury's damage award springs from the court's authority to grant a new trial. Ming Yu He v. Miller, 207 N.J. 230, 248 (2011) (citing R. 4:49-1). "That power may be exercised when 'having given due regard to the opportunity for the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49-1).

Remittitur is "a special device through which the court addresses the jury's excessive award of damages." Ibid. Remittitur is an alternative to a new trial. "It is a device through which a plaintiff consents to a reduced award instead of facing the new trial on damages that defendant demands." Ibid. (citing Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 492 (2001)).

The court's authority to grant a new trial or order a remittitur due to an excessive jury award is "'limited.'" Id. at 249 (quoting Carey v. Lovett, 132 N.J. 44, 66 (1993)). "The trial court should not disturb the jury's award unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Ibid. (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)).

In determining whether to grant a remittitur, the court begins with the assumption that the verdict is correct and all evidence must be viewed in the light most favorable to plaintiff. Ibid. The purpose of remittitur "is not to bring a generous, but manifestly supportable, verdict down into a range more to the liking of the trial or appellate court." Rather, remittitur "is a device to which a court may resort to reduce a verdict that is 'shocking' and award in its place 'the highest figure that could be supported by the evidence.'" Ibid. (quoting Fertile, supra, 169 N.J. at 500).

In reviewing a trial court's order granting or denying remittitur, we apply the same standard that is applied by the trial court. Id. at 255. We must afford "'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles[.]" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). The trial court "'sees and hears the witnesses and the attorneys, and [has] a first-hand opportunity to assess their believability and their effect on the jury.'" Id. at 254 (quoting Jastram, supra, 197 N.J. at 230).

Dr. Kaul asserts that the "only injuries" that Jarrell alleged he sustained as a result of the initial surgery was "a foot drop" and damage to the nerve roots in his spine. Dr. Kaul says that Jarrell is able to "ambulate with the use of a brace" and can perform "most, if not all" of his daily activities. Dr. Kaul contends that a $500,000 verdict for such injuries is "shocking and out of proportion to the evidence produced" at trial. Dr. Kaul also argues that the $250,000 awarded to Jarrell's wife on her claim is excessive.

The trial court found that the jury's awards to Jarrell and his wife are "quite reasonable." The court noted that the evidence of Dr. Kaul's negligence was "overwhelming." The court observed that Dr. Hodosh had testified that there was no justification for the operation. The court also pointed out that the evidence of Jarrell's nerve injuries was clear and the limitations that Jarrell described are "substantial." The record supports the court's findings.

Here, plaintiffs presented evidence showing that, while Jarrell had a pre-existing problem with back pain, he sustained new and significant injuries as a result of Dr. Kaul's surgery. Jarrell had to undergo corrective surgery and rehabilitation. He has a permanent limp and must wear a brace in order to walk. Furthermore, Jarrell testified that he has chronic pain and he will be required to take pain medication indefinitely. In addition, Jarrell is unable to engage in some of the recreational activities that he used to enjoy. This evidence also indicates that Jarrell's wife sustained a loss of her husband's companionship, consortium and services.

Dr. Kaul maintains, however, that the awards are excessive when compared with damage awards in certain other cases. Dr. Kaul provides brief descriptions of the injuries involved and the amounts awarded in those matters. A trial court may consider comparable verdicts in determining whether a jury's award is so "wide of the mark" as to shock the judicial conscience. He, supra, 207 N.J. at 258.

We are nevertheless satisfied that the information as to those other verdicts is insufficient to override the trial court's considered judgment that the awards in this case were "quite reasonable." The judge's determination was based on the evidence presented at the trial of this matter, the judge's "feel of the case" and his judicial experience.

Accordingly, we affirm the denial of Dr. Kaul's motion for a new trial or remittitur.

IV.

We turn to plaintiffs' cross-appeal. Plaintiffs argue that the trial court erred by dismissing their claims against Dr. Kaul for deceit, misrepresentation, lack of informed consent and battery based on his alleged failure to maintain medical malpractice insurance for spine surgery or a letter of credit. Plaintiffs contend that Dr. Kaul was not insured to perform spine surgery and because he failed to disclose this fact, he did not have Jarrell's informed consent for the surgery. For these reasons, plaintiffs contend they are entitled to pursue claims against Dr. Kaul for deceit, misrepresentation, lack of informed consent and battery, and seek punitive damages.

N.J.S.A. 45:9-19.17(a) provides that physicians who maintain a professional medical practice in this state and have responsibility for patient care must maintain medical malpractice liability insurance in the amount of $1,000,000 per occurrence and $3,000,000 per policy, or a letter of credit for at least $500,000 in the event insurance coverage is not available. In addition, N.J.S.A. 45:9-19.17(b) provides that a physician who violates this statutory requirement is subject to disciplinary action and civil penalties imposed by the Board pursuant to N.J.S.A. 45:1-21 to -22 and N.J.S.A. 45:1-25.

We are convinced the trial court correctly determined that N.J.S.A. 45:9-19.17(b) does not provide a private cause of action for a patient whose physician has not maintained the malpractice insurance or letter of credit required by N.J.S.A. 45:9-19.17(a). The court's determination was in accord with Basil v. Wolf, 193 N.J. 38 (2007).

In Basil, a worker was injured in a workplace accident. Id. at 43. The worker later died from a condition his Estate alleged should have been identified and investigated when he was evaluated for purposes of insurer-authorized treatment. Id. at 43-44. The Estate brought suit against the worker's compensation carrier, as well as the physician who performed the medical examinations. Id. at 44.

Among other things, the Estate claimed that the insurer was vicariously liable because it had hired an incompetent physician to perform the examinations. Id. at 67. The Estate argued that the doctor was incompetent because he failed to maintain medical malpractice insurance. Id. at 70.

The Court noted that, when the carrier retained the doctor, it was not clear whether the doctor was maintaining "a professional practice with responsibility for patient care," as provided in N.J.S.A. 45:9-19.17(b). Id. at 71. The Court said that the statutory obligation to maintain medical malpractice insurance did not become clear until the Board issued implementing regulations. Id. at 72. The Court observed that, "[a]t most, the statute informed licensees that a physician in violation of the statute could be subject to disciplinary action, . . . but no form of direct action against a physician was authorized." Ibid. (emphasis added).

Although Basil did not involve a direct action against a physician based on an alleged violation of N.J.S.A. 45:9-19.17(a), the Court's interpretation of N.J.S.A. 45:9-19.17(b) was essential to its analysis as to whether the carrier could be vicariously liable for the physician's alleged negligence. As the Court pointed out, the Board may take disciplinary action and impose civil penalties if a physician does not maintain medical malpractice insurance or a letter of credit, but N.J.S.A. 45:9-19.17(b) does not recognize a direct action against the non-complying physician.

Plaintiffs also argue that the trial court erred by dismissing their claims against MSSC. Here, plaintiffs alleged that MSSC negligently and unreasonably facilitated Dr. Kaul's performance of the spine surgery, notwithstanding his lack of qualifications and failure to comply with N.J.S.A. 45:9-19.17(a).

The trial court found that plaintiffs' claims failed because Dr. Kaul was not an employee of MSSC, and there was insufficient evidence to support a claim against MSSC under a theory of vicarious liability. The court pointed out that plaintiffs had not presented any expert witness to testify that MSSC deviated from medical standards by allowing Dr. Kaul to practice on its premises. The court additionally stated that MSSC could not be liable because it allegedly allowed Dr. Kaul to practice despite his alleged failure to comply with N.J.S.A. 45:9-19.17(a).

Plaintiffs do not challenge the court's determination that their negligence claim against MSSC failed for lack of expert testimony. They nevertheless contend that MSSC may be liable because it provided its facilities for use by a physician who allegedly had not complied with N.J.S.A. 45:9-19.17(a). We are convinced, however, for the reasons previously stated, that N.J.S.A. 45:9-19.17(b) does not permit a patient to bring a direct action against a surgical center that allows a physician to use its facilities under these circumstances.

Affirmed on the appeal and the cross-appeal.