ARLINE FIELD v. GREGG A. BANNETT, D.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARLINE FIELD and

JAMES FIELD,

Plaintiffs-Appellants,

v.

GREGG A. BANNETT, D.O., BANNETT

EYE CENTERS, P.A., MITCHELL S.

FINEMAN, M.D., JEFFREY GORDON,

M.D., and RANCOCAS ANESTHESIOLOGY,

P.A.,

Defendants,

and

CARL D. REGILLO, M.D., ASSOCIATED

RETINAL SURGEONS, P.A., ERIC CHEN,

M.D., and THOMAS JEFFERSON

UNIVERSITY HOSPITALS, INC.,

Defendants-Respondents.

________________________________________________________________

September 23, 2013

Argued September 10, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6123-08.

Richard A. Asselta argued the cause for appellants (Capizola, Pancari, Lapham & Fralinger, attorneys; Michael D. Capizola, on the briefs).

Sharon K. Galpern argued the cause for respondents Carl D. Regillo, M.D., and Associated Retinal Surgeons, P.A. (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).

PER CURIAM

Plaintiffs Arline and James Field1 filed a medical malpractice complaint against various defendants that proceeded to trial against defendants Carl D. Regillo and his medical practice, Associated Retinal Surgeons, P.A. At the close of their evidence, defendants moved for dismissal pursuant to Rule 4:37-2(b). The motion was granted by the trial court and plaintiffs appeal from that order. We affirm.

Dr. Regillo performed a vitrectomy upon plaintiff after diagnosing her with a macular pucker. He was assisted in the surgery by Eric Chen, M.D., a fellow in a retinal surgery program operated by Retina Diagnostic & Treatment Associates, LLC. The day after surgery, plaintiff was unable to see out of her right eye, other than hand movements. Her visual acuity was reduced to 1 over 200.

A vitrectomy entails three microscopic incisions inside a patient's eye for the purpose of removing the gel inside. Plaintiff's expert, Adam P. Beck, M.D., a board-certified ophthalmologist, testified that anesthesia is necessary for this procedure and the method selected here was a retrobulbar block, which was performed by Dr. Chen. Plaintiff does not challenge the decision to use this form of anesthesia.

Dr. Beck explained that, in a retrobulbar block, the doctor "numb[s] the patient's eye by placing a needle under the globe between the bony piece of the orbit and the eye, the actual eyeball, and . . . insert[s] a needle back and inject[s] fluid, [which] numbs the nerve innervating the eye." Dr. Beck testified to a reasonable degree of medical probability that "the optic nerve in the right eye was struck by the retrobulbar needle during the . . . anesthesia block," and that this caused the loss of vision in plaintiff's right eye. Dr. Beck also testified that Dr. Chen deviated from the applicable standard of care when he struck the optic nerve in administering the retrobulbar block.

Dr. Beck found no fault in the surgery performed by Dr. Regillo. Nonetheless, he found Dr. Regillo responsible for plaintiff's loss of vision because he was the attending surgeon. On cross-examination, he testified as follows:

Q. . . . [T]here was, in your opinion, one deviation from accepted practice which was the way the injection was performed, correct?

A. Correct.

Q. And Doctor Regillo did not perform that injection. Doctor Chen did?

Q. Correct.

Q. And your opinion is that Doctor Chen deviated from accepted practice in the way that he performed the injection?

A. Correct.

Q. Now, Doctor Regillo was the attending surgeon, correct?

A. Correct.

Q. And it's your opinion that, as the attending surgeon, Doctor Regillo is the captain of the ship, and therefore, for that reason, he is responsible for what happened, correct?

A. Correct.

Q. And that's the only basis, in your opinion, for responsibility by Doctor Regillo in this case?

A. Correct.

[(Emphasis added).]

At the end of plaintiff's case, defendant made a motion for dismissal pursuant to Rule 4:37-2(b), which provides that a motion for dismissal may be made "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." The rule states "such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. The trial court found no evidence had been presented to show that there was an employer-employee relationship between Dr. Regillo and Dr. Chen or that Dr. Regillo had control over Dr. Chen's performance of the retrobulbar block. The court reasoned that, under the circumstances, the claim of liability was based upon the "captain of the ship" doctrine, which was expressly disapproved in Sesselman v. Muhlenberg Hosp., 124 N.J. Super. 285, 290 (App. Div. 1973). Therefore, the trial court dismissed plaintiff's case.

In this appeal, plaintiff argues that the trial court erred because there was sufficient evidence for the jury to find that Dr. Chen was an employee of Dr. Regillo and acting under his direction and control. We disagree.

Dr. Regillo testified:

Dr. Chen was not part of my group. He's not in my practice. He's not employed by my practice. No. He's part of a corporation that oversees the retina service of Wills Eye which at the time is made of multiple different private practices, one of which was mine.

Dr. Regillo was then confronted with his deposition testimony, in which he gave a similar response and added, "So indirectly I guess that would be yes [that Dr. Chen was an employee of his]." However, he also testified at his deposition and at trial that he did not "know the complicated corporate structure well enough to know that answer."

The unrefuted evidence is that Dr. Chen was employed by a limited liability corporation, Retina Diagnostic & Treatment Associates, LLC. This corporation consisted of several member practices, including defendant Associated Retinal Surgeons, P.A., the practice in which Dr. Regillo is a member. Because Dr. Chen's employer was a corporation, neither Dr. Regillo, individually, nor his practice can be held personally liable as Dr. Chen's employer. See Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 198 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007). As the court stated in State, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500 (1983), "a corporation is a separate entity from its shareholders . . . [and] a primary reason for incorporation is the insulation of shareholders from the liabilities of the corporate enterprise." This principle of limited liability applies even when the shareholder is another corporation. Verni, supra, 387 N.J. Super. at 198. Plaintiff has presented no legal authority to the contrary.

As the trial court reasoned, in the absence of an employment relationship, plaintiff's claims rest entirely upon a "captain of the ship doctrine," and therefore must fail. See Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994); C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 65-66 (App. Div. 2006); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 34-35 (App. Div. 1998); Sesselman, supra, 124 N.J. Super. at 290. Plaintiff's attempt to cast the claim as one based upon respondeat superior lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 James Field has asserted a per quod claim. Unless otherwise indicated, "plaintiff" refers to Arline Field hereafter.