VICTORIA QUALANTONE v. NEWTON MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VICTORIA QUALANTONE,

Plaintiff-Appellant,

v.

NEWTON MEDICAL CENTER

ATLANTIC HEALTH SYSTEM, INC.,

Defendant-Respondent,

and

DR. GERALYN PONZIO,

Defendant.

__________________________________

December 9, 2016

Argued October 11, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-680-14.

Victoria Qualantone, appellant, argued the cause pro se.

Katelyn E. Cutinello argued the cause for respondent (Bubb, Grogan & Cocca, LLP, attorneys; Anthony Cocca, of counsel; Richard W. Carlson, on the brief).

PER CURIAM

Plaintiff Victoria Qualantone appeals from the Law Division's April 13, 2015 order1 dismissing her complaint against defendants Newton Medical Center Atlantic Health System, Inc. (Newton) and Dr. Geralyn Ponzio. Plaintiff filed her action alleging negligent infliction of emotional distress arising from defendants' roles in prohibiting her from being able to visit with her late boyfriend as he lay dying in Newton's hospital. The Law Division dismissed her complaint pursuant to Rule 4:6-2(e) for failure to state a claim. On appeal, she argues her complaint should be reinstated and she should be allowed to amend it to include a claim for negligence and violations of federal hospital visitation regulations, 42 C.F.R. 482.13 (2016). We disagree and affirm.

The salient facts alleged in plaintiff's complaint can be summarized as follows. Plaintiff's live-in boyfriend was admitted to Newton's hospital. At that time, he was estranged from his wife for eight years and had very little contact with his adult children. He not only lived with plaintiff but was also dependent upon her for support, was a beneficiary of her life insurance policy and was soon to be covered by her health insurance policy as well.

Soon after his admission to the hospital, plaintiff's boyfriend died from liver failure. Prior to his death, at the request of his estranged family, plaintiff was asked to remain out of his hospital room when the family was present. On the day he died, plaintiff was told by a security guard to leave the hospital after plaintiff and one of her boyfriend's children got into an argument outside of the intensive care unit.

Plaintiff filed suit against the hospital and decedent's doctor alleging negligent infliction of emotional distress. She claimed the hospital violated federal regulations and other polices relating to patients' visitation rights and that by "[v]iolating internal policies and professional standards requiring reasonable patient access and communication with the support person" and barring her from her boyfriend's bedside, defendants caused her to suffer emotional distress.

In lieu of filing an answer to the complaint, defendants filed a motion to dismiss pursuant to Rule 4:6-2(e). The motion judge granted defendants' application, entered an order on April 13, 2015, dismissing the complaint with prejudice and issued a written statement of reasons in which he stated

[a]lthough the circumstances surrounding the death of [p]laintiff's boyfriend are unfortunate, they do not give rise to [p]laintiff's claim for negligent infliction of emotional distress. Turning to the elements set forth in Portee v. Jaffee, 84 [N.J.] 88, 101 (1980), a plaintiff must prove (1) the death or serious injury of another caused by defendant's negligence; (2) a marital or intimate familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting in severe emotional distress.

Plaintiff has failed to establish elements one [through three].

Despite the court dismissing her complaint with prejudice, plaintiff filed a motion on May 15, 2015, seeking permission to amend her pleading. In her motion, which was not supported by a proposed amended complaint,2 plaintiff argued she was "seeking [to pursue] meritorious claims which affect the public interest. Many people in similar circumstances will be affected by the outcome of this case. Furthermore, I am seeking an attorney to take this case." The court denied the motion and issued an order on June 12, 2015, attaching a copy of its statement of reasons from its order granting defendants' earlier motion to dismiss.

Before the court entered the June order, plaintiff filed this appeal from the court's April 13, 2015 order only. She did not seek appellate review of the June 12, 2015 order.

On appeal she argues that defendants "violated 42 C.F.R. 482.13; the court abused its discretion; [and,] summary judgment was inappropriate." Defendants respond by asserting that plaintiff's arguments on appeal were not raised in the Law Division and therefore should not be considered or, if they are, the federal regulation plaintiff cites to does not give rise to a private cause of action; she failed to allege the elements necessary to prove the negligent infliction of emotional distress; and the court did not abuse its discretion. Also, to the extent plaintiff argued she was entitled to pursue discovery, it should not be permitted because of her inability to set forth a viable cause of action. Plaintiff replies by reiterating her argument about the applicability of the federal regulation, her need for discovery, and why we should grant her leave to amend her complaint.

We review de novo an order dismissing plaintiff's complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e), applying the same legal standard as the trial court. See NL Indus., Inc. v. State, 442 N.J. Super. 403, 404 (App. Div. 2015). That standard requires a court to deny the motion if, giving plaintiff the benefit of all allegations and all favorable inferences, a cause of action has been alleged in the complaint. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The court must treat all factual allegations as true and must carefully examine those allegations "to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "Nonetheless, . . . the essential facts supporting plaintiff's cause of action must be presented in order for the claim to survive; conclusory allegations are insufficient in that regard," Scheidt v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012), as are assertions that "essential facts that the court may find lacking can be dredged up in discovery." Printing Mart, supra, 116 N.J. at 768; see also Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div.), certif. denied, 176 N.J. 278 (2003). After a thorough examination, should the court determine that such allegations fail to state a claim upon which relief can be granted, the court must dismiss the claim. Printing Mart, supra, 116 N.J. at 746. Dismissal is appropriate only if, after proper consideration of the complaint and referenced documents, there remains "no basis for relief and discovery would not provide one." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

We conclude from our review of plaintiff's complaint she failed to state a cause of action for negligent infliction of emotional distress. A plaintiff can generally maintain an independent tort for negligent infliction of emotional distress in only two types of cases. A plaintiff can "demonstrate that the defendant's negligent conduct placed plaintiff in reasonable fear of immediate personal injury, which gave rise to emotional distress that resulted in a substantial bodily injury or sickness," Jablonowska v. Suther, 195 N.J. 91, 104 (2008). In addition, a plaintiff can state a cause of action by alleging that

(1) the defendant's negligence caused the death of, or serious physical injury to, another; (2) the plaintiff shared a marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress.

[Id. at 103 (citing Portee, supra, 84 N.J. at 97).]

Plaintiff did not allege that defendants' negligent conduct placed her in fear of immediate injury, nor did it allege the elements necessary to establish a Portee claim for emotional distress arising from harm to another. It is undisputed that defendants' negligence did not cause plaintiff's boyfriend's death, nor did plaintiff allege that her emotional distress was the result of observing his death or injury.

Accordingly, plaintiff failed to establish a prima facie case of negligent infliction of emotional distress and her complaint was properly dismissed with prejudice, as no further amendment could give rise to her alleging facts that would establish her claim. Prime Accounting Dep't v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (alterations in original) (quoting Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)) ("[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. . . . [T]here is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.").

We find no merit to plaintiff's argument that 42 C.F.R. 482.13 established her entitlement to pursue her original complaint. Alleging a violation of the regulation does not give rise to a cause of action for infliction of emotional distress or, for that matter, any private cause of action.3

Finally, to the extent plaintiff argues she is entitled to assert by amendment new claims not encompassed by the pleading considered by the motion judge before entering his April 13, 2015 order, we choose to withhold our review as her contention is not properly before us. Plaintiff did not appeal from the June 12, 2015 order addressing her post-dismissal motion to amend, seePressler & Verniero, Current N.J. Court Rules, comment 6.1 on R.2:5-1 (2016) ("[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review."), or seek leave to amend in response to defendants' earlier motion to dismiss.4 See Selective Ins. Co. of Am. v. Rothman, 208 N.J.580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J.229, 234 (1973)) ("[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.").

Affirmed.

1 The order was dated April 13, 2015 but filed on April 15, 2015.

2 See R. 4:9-1.

3 The regulation states in pertinent part

(h) Standard: Patient visitation rights. A hospital must have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital may need to place on such rights and the reasons for the clinical restriction or limitation. A hospital must meet the following requirements

(1) Inform each patient (or support person, where appropriate) of his or her visitation rights, including any clinical restriction or limitation on such rights, when he or she is informed of his or her other rights under this section.

(2) Inform each patient (or support person, where appropriate) of the right, subject to his or her consent, to receive the visitors whom he or she designates, including, but not limited to, a spouse, a domestic partner (including a same-sex domestic partner), another family member, or a friend, and his or her right to withdraw or deny such consent at any time.

(3) Not restrict, limit, or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.

[42 C.F.R. 482.13]

42 C.F.R. 482.13 is one of a number of regulations that set forth requirements necessary for a hospital to participate in Medicare and contains a patient's visitation rights. It does not provide for a private right of action stemming from a hospital's lack of compliance. Ibid.; see also Hinojosa v. Perez, 214 F. Supp. 2d 703, 705 (S.D. Tex. 2002)(finding that Medicare regulations do not "reference a private right of action to enforce these requirements"); Brogdon v. Nat'l Healthcare Corp., 103 F. Supp. 2d 1322, 1331-32 (N.D. Ga 2000) ("The great majority of courts have determined that the Medicare and Medicaid Acts [(the Acts)] do not authorize private causes of action against nursing homes . . . " because "[t]hese courts found nothing in the text or legislative history of [the Acts] . . . to suggest that Congress intended to create a private cause of action.").

4 The motion judge's April 13, 2015 statement of reasons alludes to plaintiff seeking to amend her complaint to assert a claim for negligence, but there is no evidence in the record that plaintiff had filed a cross-motion prior to her post-dismissal motion to amend.