J.D. v. OFFICER KATHLEEN MAGGAULLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

J.D.,

Plaintiff-Appellant,

v.

OFFICER KATHLEEN MAGGAULLI,

CITY OF SUMMIT and/or

SUMMIT POLICE DEPARTMENT,

Defendants,

and

OVERLOOK HOSPITAL,

Defendant-Respondent.

________________________________

July 13, 2015

Submitted March 16, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3824-10.

Forman, Cardonsky & Lawrence, attorneys for appellant (Mark C. G. Lawrence, on the briefs).

Bubb, Grogan & Cocca, LLP, attorneys for respondent (Anthony Cocca, of counsel and on the brief; Katelyn E. Cutinello, on the brief).

PER CURIAM

Plaintiff appeals from an order that dismissed his complaint against defendant Overlook Hospital (Overlook)1 based upon his failure to supply an affidavit of merit (AOM) within 120 days of Overlook's answer pursuant to N.J.S.A. 2A:53A-27. We affirm.

We derive the following facts from plaintiff's certification and the certified hospital records. At approximately 8:30 p.m. on September 24, 2008, plaintiff found his seventeen-year-old daughter, V.D., unconscious and apparently not breathing. He told her friend to call 911. The First Aid Squad was dispatched at 8:48 p.m. 2 V.D. resumed breathing as the paramedics arrived. She was placed in the back of the ambulance for transportation to Overlook. Plaintiff rode in the front passenger seat. He began experiencing chest pains during the ride to Overlook and told the ambulance driver. They arrived at Overlook at 9:24 p.m.

While en route to the hospital, V.D. told the paramedics that her father choked her and she was afraid of him. After they arrived, V.D. was removed from the ambulance first and plaintiff was placed in a separate room where he received medical attention for his chest pains. When he asked for his daughter and later tried to locate her in the hospital, he was told he was not allowed to see her. Plaintiff became "very upset." He stated, "I was thinking of my wife, who had entered [the] hospital in 2000 with what we thought was a cold, and ended up dying from a staph infection." He feared V.D. had died. A police officer told plaintiff he "no longer had custody of [his] daughter," escorted plaintiff to his room in the emergency room and told him if he left the room he would be arrested. Plaintiff stated he was not allowed to leave the room until he was discharged at approximately 4:00 a.m.

The Overlook emergency record states that V.D.'s time of triage was 9:43 p.m. When V.D. was assessed at 9:45, her "chief complaint" was recorded in the emergency record as follows: "As per patient, father tried to choke her. As per patient, father has [history] of physically abusing her."

Under the category, "Domestic Violence," the record states "Signs of abuse present." The nurse's notes at 10:00 state

[PATIENT] EXAMINED AT BED SIDE BY MD. [PATIENT] CLAIMS SHE IS FEARFUL OF HER FATHER AND DOES NOT WISH FOR HIM TO BE PRESENT IN THE ROOM. CHARGE NURSE MADE AWARE. SECURITY UTILIZED. [PATIENT] PLACED [UNDER] OBSERVATION.

The doctor notes state at 10:05 p.m.

I spoke with father who states patient was in her room with a girlfriend and heard a scream. He states he saw his daughter blue and grey on the floor and was shaking and her eyes rolled back and was doing CPR. He is aware of bloodwork and xrays being done and that I am going to call social services.

The emergency record states further that V.D. was seen by a social worker at 1:45 a.m.; a crisis counselor at 3:10 a.m.; and by "DYFS" (Division of Youth and Family Services)3 at 3:40 a.m. The Crisis Database record reported the "presenting problem" as follows

[Patient] presented in the pediatric ER after a loss of consciousness. [Patient] reported that she "blacked out" and then saw her father over her and he reportedly stated "I'm going to kill you." [Patient] initially reported to ER pediatrician Dr. Shah that she thought her father choked her however [patient] admitted to snorting four lines of cocaine intranasally last night at 8 pm (9-24-08) before she lost consciousness.

V.D. also reported and plaintiff admitted to slapping his daughter in the face, causing a bruise, and hitting V.D. with a belt in July 2008 for having unprotected sex. V.D. told Dr. Shah "she would kill herself if she had to go home with her father because 'he is abusive.'"

The emergency record later stated, "As per DYFS, patient can go home with grandparents/family. . . . [Patient] evaluated by psychiatrist and cleared for out[patient] treatment."

Plaintiff's son, a police officer, told him V.D. had claimed he had choked her. Plaintiff was interviewed by DYFS workers at approximately 3:00 a.m. He stated they "asked [him] questions about what had happened in [his] relationship with V.D.. . . . They seemed disturbed about the way [he] had been treated and they told [him] at that time that only DYFS had the power to take away custody of [his] child." After he was discharged, plaintiff received a call from Overlook at approximately 9:00 a.m., advising "that DYFS had cleared [him] of any wrongdoing and that [he] was free to come and pick up [his] daughter."

The allegations against Overlook are contained in one count of the complaint. Count III, which bears the heading, "Intentional/Negligent Infliction and Emotional Distress," states in pertinent part

2. Defendants, Jane Does 1-5, John Does 1-5 (being fictitious names for doctors or other personnel at Defendant, Overlook Hospital) had a duty to Plaintiff to exercise reasonable medical skill and judgment with regard to determining the likelihood that Plaintiff's daughter had been the victim of abuse or other improper acts by Plaintiff.

3. There was insufficient medical and or factual information supplied or available to Defendant's [sic] for the Defendant exercising reasonable medical judgment and or skill to conclude that there was likelihood that Plaintiff's daughter had been the victim of abuse or other improper actions by Plaintiff.

4. In the alternative, Defendant knew or should have realized at an earlier time that medical and or factual information negated any likelihood that Plaintiff's daughter had been the victim or other improper actions.

On December 20, 2010, Overlook filed an answer which included a demand for an AOM, as required by N.J.S.A. 2A:53A-27, which states in pertinent part

In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.

On May 23, 2011, Overlook filed a motion to dismiss the claim against it based upon plaintiff's failure to serve an AOM within 120 days of the filling of its answer. The trial court granted Overlook's motion, dismissing the complaint. In his appeal, plaintiff presents the following arguments

POINT I

THE AFFIDAVIT OF MERIT STATUTE CLEARLY DID NOT APPLY TO PLAINTIFF'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM.

POINT II

PLAINTIFF DID NOT REQUIRE AN AFFIDAVIT OF MERIT BECAUSE THE APPLICABLE STANDARD OF CARE IS DEFINED BY STATUTE RATHER THAN "ACCEPTABLE PROFESSIONAL OR OCCUPATIONAL STANDARDS OR TREATMENT PRACTICES."

POINT III

IN THE ALTERNATIVE, TO THE EXTENT THIS CASE REQUIRES PROOF OF A DEVIATION FROM A PROFESSIONAL STANDARD OF CARE THE DEVIATION INVOLVES NO ISSUES BEYOND THE KEN OF THE AVERAGE JUROR AND PLAINTIFF IS ENTITLED TO RELY ON THE COMMON KNOWLEDGE EXCEPTION.

After reviewing these arguments in light of the record and applicable legal principles, we conclude that the argument raised in Point III lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We are unpersuaded by the remaining arguments.

When reviewing an order granting summary judgment, we apply the same standards that are applied by the trial court. Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plainly, Overlook falls within the definition of "licensed professional" under the AOM statute. See N.J.S.A. 2A:53A-26(j); N.J.S.A. 26:2H-2(a). The determination whether the AOM statute applies here therefore turns on whether the claim here is an "action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation." N.J.S.A. 2A:53A-27.

Plaintiff first argues that the AOM statute does not apply because he asserted a claim for intentional or negligent infliction of emotional distress, rather than a claim for professional negligence. However, "[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry." Couri v. Gardner, 173 N.J. 328, 340 (2002). In making this determination, the court "shall consider the actual substance of those allegations and the related evidence as developed through pertinent discovery, rather than simply accept the label used for them in [the] pleadings." Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562 (App. Div. 2014), leave to appeal granted, 221 N.J. 283 (2015).

Couri identified three elements relevant to an analysis of whether the AOM statute applied to a claim

(1) whether the action is for "damages for personal injuries, wrongful death or property damage" (nature of injury); (2) whether the action is for "malpractice or negligence" (cause of action); and (3) whether the "care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint [] fell outside acceptable professional or occupational standards or treatment practices" (standard of care).

[Couri, supra, 173 N.J. at 334 (quoting N.J.S.A. 2A:53A-27).]

In this case, the complaint demands damages for plaintiff's "mental and emotional distress," satisfying the first of these elements. The complaint asserts defendant "had a duty to Plaintiff to exercise reasonable medical skill and judgment." The complaint also alleges a breach of that duty, stating "[t]here was insufficient medical and or factual information . . . for the Defendant exercising reasonable medical judgment and or skill to conclude that there was a likelihood" plaintiff's daughter had been the victim of abuse. Therefore, despite the name given to the cause of action, the claim rests upon allegations of a duty to exercise "reasonable medical skill and judgment" and a breach of that duty that precluded the exercise of reasonable medical judgment. Because these are indisputably elements of a professional negligence action, see Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626 (1999); Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J. Super. 343, 347-48 (App. Div. 2001); the second Couri element is satisfied.

Finally, we turn to the third element. In Couri, the Court advised,

[I]f the underlying factual allegations of the claim require proof of a deviation from the professional standard of care for that specific profession . . . an affidavit of merit shall be mandatory for that claim, unless either the statutory, N.J.S.A. 2A:53A-28, or common knowledge exceptions apply.

[Couri, supra, 173 N.J. at 341.]

Plaintiff argues that the applicable standard of care is not provided by the medical profession but, rather, defined by N.J.S.A. 9:6-8.16, which provides

Any physician examining or treating any child, or the director or his designate of any hospital or similar institution to which any child has been brought for care or treatment, is empowered to take the said child into protective custody when the child has suffered serious physical injury or injuries, and the most probable inference from the medical and factual information supplied, is that the said injury or injuries were inflicted upon the child by another person by other than accidental means, and the person suspected of inflicting, or permitting to be inflicted, the said injury upon the child, is a person into whose custody the child would normally be returned.

[Emphasis added.]

Significantly, this statute defines the standard in which "[a]ny physician" may act. The criteria for taking a child into protective custody require the exercise of medical judgment as to whether the child has suffered serious physical injury and what "the most probable inference" is "from the medical and factual information supplied." It could be argued that, under certain circumstances, the determination whether a child has suffered serious physical injury could be made by laypersons. However, a determination as to what is "the most probable inference from the medical and factual information supplied" plainly requires the exercise of professional judgment. Therefore, it is evident that the reasonableness of defendant's conduct must be measured by acceptable professional standards.

Moreover, even if the statute defined the standard to be applied in this case, that fact alone does not preclude the characterization of this action as a medical malpractice action. In L.A. v. N.J. Div. of Youth & Family Servs., 217 N.J. 311, (2014), the allegation against physician defendants was that they failed to report abuse as required by N.J.S.A. 9:6-8.10, which imposes an obligation on "[a]ny person" to report abuse when there is "reasonable cause to believe a child has been subjected to child abuse." Although the statute's application was not limited to physicians, the parties agreed it provided the requisite standard of care for a medical malpractice claim, only disagreeing as to how the standard should be interpreted and applied to physicians. Id. at 323-24. The Court did not disagree.

We conclude the cause of action here satisfied all three Couri factors and that, therefore, an AOM was required to support plaintiff's cause of action. Summary judgment was properly granted to defendant.

Affirmed.

1 Plaintiff's claims against the other defendants were dismissed pursuant to a settlement.

2 The times in the record are occasionally entered in military time. We have changed the times for consistency.

3 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, which included the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. July 2, 2012.