Opinion
DOCKET NO. A-3512-12T2 DOCKET NO. A-3536-12T2
09-08-2015
KEITH KULPER and DENISE KULPER, husband and wife, Plaintiffs-Appellants, v. JEANNE SCHWARTZ, M.D.; MORRIS IMAGING ASSOCIATES; BRIAN WALSH, M.D.; and EMERGENCY MEDICAL ASSOCIATES, Defendants, and ATLANTIC HEALTH SYSTEM/MORRISTOWN MEMORIAL HOSPITAL, and ATLANTIC HEALTH SYSTEM (AHS) INSURANCE COMPANY, Defendants-Respondents/Third-Party Plaintiffs, v. JEANNE SCHWARTZ, M.D.; MORRIS IMAGING ASSOCIATES; and BRIAN WALSH, M.D., Third-Party Defendants. KEITH KULPER and DENISE KULPER, husband and wife, Plaintiffs-Respondents, v. JEANNE SCHWARTZ, M.D.; MORRIS IMAGING ASSOCIATES; BRIAN WALSH, M.D.; and EMERGENCY MEDICAL ASSOCIATES, Defendants, and ATLANTIC HEALTH SYSTEM/MORRISTOWN MEMORIAL HOSPITAL, and ATLANTIC HEALTH SYSTEM (AHS) INSURANCE COMPANY, Defendants/Third-Party Plaintiffs-Appellants, v. JEANNE SCHWARTZ, M.D.; and MORRIS IMAGING ASSOCIATES, Third-Party Defendants-Respondents, and BRIAN WALSH, M.D., Third-Party Defendant.
William A. Krais argued the cause for appellants Keith Kulper and Denise Kulper in A-3512-12/respondents in A-3536-12 (Porzio, Bromberg & Newman, attorneys; Mr. Krais, on the briefs). Anthony Cocca argued the cause for respondents AHS Hospital Corporation, Morristown Memorial Hospital Campus and AHS Insurance Co., Ltd. in A-3512-12/appellants in A-3536-12 (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel; Nicholas F. Spindler, Christopher L. Deininger and Kristina C. Ivtindzioski, on the briefs). Craig Combs argued the cause for respondents Jeanne Schwartz, M.D. and Morris Imaging Associates in A-3536-12 (Giblin & Combs, LLC, attorneys; Erica C. Avondoglio, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2181-09. William A. Krais argued the cause for appellants Keith Kulper and Denise Kulper in A-3512-12/respondents in A-3536-12 (Porzio, Bromberg & Newman, attorneys; Mr. Krais, on the briefs). Anthony Cocca argued the cause for respondents AHS Hospital Corporation, Morristown Memorial Hospital Campus and AHS Insurance Co., Ltd. in A-3512-12/appellants in A-3536-12 (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel; Nicholas F. Spindler, Christopher L. Deininger and Kristina C. Ivtindzioski, on the briefs). Craig Combs argued the cause for respondents Jeanne Schwartz, M.D. and Morris Imaging Associates in A-3536-12 (Giblin & Combs, LLC, attorneys; Erica C. Avondoglio, on the brief). PER CURIAM
In this medical malpractice case, we consider the consolidated appeals of plaintiffs Keith and Denise Kulper and defendants AHS Hospital Corp./Morristown Medical Center (AHS) and American Health Systems Insurance Company (AHSIC) (collectively, defendants).
"Kulper" refers to Keith Kulper only, while "plaintiffs" refers to Keith and Denise Kulper collectively.
The jury found Dr. Lee Kuxhaus, a radiology resident at AHS, deviated from accepted standards of medical practice, proximately causing Kulper to lose vision in his left eye, and awarded plaintiffs $2,500,000 in damages. The jury also found that defendants Brian Walsh, M.D., and Jeanne Schwartz, M.D., did not commit malpractice. Because Kuxhaus was an officer on active duty in the United States Air Force (USAF) at the time she provided medical service to Kulper, she was immune from personal liability pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-80 (FTCA), and the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C.A. §§ 2679(b), (d) (Westfall Act). The trial court determined AHS was vicariously liable for her negligence, reduced the judgment to $250,000 pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11 (CIA), and entered judgment against AHS for that amount.
The case was removed to federal court and, after a United States District Court judge determined the United States was not vicariously liable for Kuxhaus's negligence, the matter was returned to state court.
In their appeal, plaintiffs argue the trial court erred in denying their request to substitute a Jane Doe defendant for Kuxhaus after the verdict so their recovery would not be subject to the $250,000 CIA limit. Defendants AHS and AHSIC argue the imposition of vicarious liability upon AHS was contrary to law and the facts in this case and challenge various rulings by the trial court. We find no merit in any of the arguments presented on appeal and affirm.
I.
At around 10:00 p.m., on Friday, August 19, 2005, Kulper went to the emergency room at AHS, complaining of a severe headache and double vision. Walsh, an emergency medicine physician, was on duty in the emergency room that night. Walsh telephoned Kulper's personal physician and the two discussed possible causes for Kulper's medical complaints. Thereafter, Walsh ordered a CT scan of Kulper's head to eliminate the possibility that his complaints were the result of bleeding in the brain or a tumor. The CT study was conducted in the early morning hours of Saturday, August 20, 2005.
Kuxhaus, the resident radiologist on duty, was an officer on active duty in the United States Air Force (USAF), working as a medical resident at AHS pursuant to an agreement between the USAF and AHS and an employment contract between Kuxhaus and AHS. Kuxhaus issued her preliminary interpretation of the CT study, concluding there was "left sphenoid and ethmoid sinusitis" and that "there is no bleed and no mass affecting the brain." By "no mass effect," Kuxhaus meant the CT study did not show any distortions of the structures in Kulper's head that would suggest a tumor or growth was present. She faxed her preliminary report to Walsh at around 2:00 a.m.
Upon receiving the report, Walsh was concerned that Kuxhaus's interpretation of the CT results did not comport with the symptoms and complaints presented by Kulper and discussed the matter directly with her. Walsh testified that Kuxhaus told him there was no evidence of a tumor or bleeding in the brain and that Kulper was only suffering from sinusitis. Walsh also testified that Kuxhaus did not recommend an MRI study. Walsh telephoned Kulper's personal physician, telling him that the CT study had revealed only sinusitis.
Kuxhaus and Walsh gave conflicting testimony regarding what followed. The jury's answer to a special interrogatory on the verdict sheet reveals that it accepted Walsh's testimony and rejected Kuxhaus's version of events.
Kulper remained in the emergency room for about three more hours, his headache and double vision improving. He left the emergency room at about 5:00 a.m.
During the early morning hours of August 20, Schwartz reviewed Kulper's CT study with Kuxhaus and observed abnormalities not reported by Kuxhaus. She told Kuxhaus the study results suggested the presence of a tumor and that MRI imaging was necessary. She instructed Kuxhaus to speak with Walsh to tell him about the possibility of a tumor and the need for an MRI.
Although Kuxhaus's account was different, the jury found that Schwartz issued this instruction to Kuxhaus.
At around 9:00 a.m. that morning, Schwartz noticed that the substance of her conversation with Kuxhaus was not in Kuxhaus's report of Kulper's study. Kuxhaus explained she had "pre-dictated" the report before that conversation took place and had not yet amended it. Kuxhaus assured Schwartz she had alerted Walsh to the possible presence of a tumor and the need for an MRI. Schwartz directed Kuxhaus to prepare an addendum to her report to include that information. In her addendum, Kuxhaus wrote she had discussed Kulper's CT study with Walsh, told him the presence of a tumor could not be excluded and that an MRI was necessary.
Kulper returned to AHS's emergency room that evening at about 10:00 p.m., complaining of a severe headache and impaired vision. He lost the vision in his left eye while he was in the emergency room. An MRI study performed the next day revealed the presence of a large but benign pituitary tumor that was pressing on his left optic nerve. Later corrective surgery did not improve his vision, and Kulper is permanently blind in his left eye. Plaintiffs' expert testified at trial that, if Kulper had corrective surgery prior to losing his vision, he would have likely retained the sight in his left eye.
On August 23, 2005, Walsh received a copy of Kuxhaus's report and addendum concerning Kulper. Walsh complained to Schwartz that the report was not accurate and needed to be changed. Thereafter, he wrote an addendum to his own report, detailing his version of what had occurred.
II.
The contractual relationships of the parties can be summarized as follows.
Schwartz chaired the Department of Radiology at AHS. The department operated under an "Exclusive Contract for Radiology Services" (Radiology Contract), pursuant to which Schwartz agreed to provide all radiological services to AHS through her practice group, MIA. Under the terms of the Radiology Contract, Schwartz was authorized to hire or fire attending radiologists within the department, and AHS had the right to approve or disapprove her hiring selections. The Radiology Contract did not specifically address whether Schwartz had any authority to hire or fire residents within the residency program.
According to Schwartz, the Radiology Contract was largely separate from the residency program. The Radiology Contract's chief involvement with the residency program was Schwartz's agreement to perform teaching responsibilities and services for medical house staff and to provide administrative services for the Radiology Department, which would necessarily entail the scheduling of work time and the review of staff performances for residents.
On May 16, 2002, the USAF and AHS entered into a "Medical Residency/Fellowship Agreement (No Cost)" (Fellowship Agreement), providing for the training of Kuxhaus in AHS's residency program during the period from July 1, 2002, to June 30, 2006. The agreement provided that Kuxhaus was and remained a USAF officer, who would be paid by the USAF during her residency and would not receive a salary from AHS. Kuxhaus was not precluded from receiving from AHS "benefits other than salary that are incidental to the education/training" that was the subject of the Fellowship Agreement.
The Fellowship Agreement also provided:
The institution[, AHS,] agrees that the resident/fellow [Kuxhaus] is an Air Force Officer training under authority of lawful orders issued by the Air Force. Accordingly, while performing such training, the resident/fellow is acting with the scope of his/her employment with the Air Force under Federal Law. The provisions of 28 United States Code, section 2679, will immunize the resident/fellow from individual tort liability. It is understood that the United States will protect the liability of the resident/fellow only, and the United States may, in its representation of the resident/fellow, assert any defense available under State and Federal law. Although the resident/fellow is an Air Force Officer, for purposes of liability[,] the resident/fellow is a servant of the institution. This is because the resident/fellow will be performing duties under the exclusive control and for the primary benefit of the institution. Therefore, the institution agrees to provide, at its own expense, professional liability
insurance in an amount that will satisfy all foreseen or reasonably foreseeable claims made against the resident/fellow, as well as to provide legal representation to the resident/fellow. The institution will notify the Air Force of the extent and nature of any applicable malpractice insurance and whether such includes the resident/fellow.
[(Emphasis added).]
AHS also entered into a Resident Staff Agreement (Resident Agreement), with Kuxhaus for each of the four years of her residency, which provided that: (1) AHS appointed Kuxhaus "to its Resident Staff" in the radiology residency program; (2) in addition to her USAF salary, AHS would pay Kuxhaus a stipend of $2600 because she was a fourth-year resident who had been elevated to the position of chief resident; (3) AHS would provide health and disability insurance to Kuxhaus, as well as paid holidays and other employee benefits; (4) AHS would provide malpractice insurance to Kuxhaus and a legal defense for any legal actions brought as a result of her "service on the Hospital's Resident Staff"; (5) Kuxhaus would serve on AHS's resident staff and perform the customary duties and obligations associated with such service in the residency program; and (6) Kuxhaus would participate in the educational activities of the residency program and would adhere to the policies, practices, procedures, rules, and regulations set out by the medical staff and AHS.
AHS asserts that, "[s]ince the Resident Staff Agreement is not contained within the record, both parties' arguments regarding this document should be disregarded." AHS is mistaken. On October 31, 2012, the Resident Agreement was included in Schwartz's opposition to AHS's cross-motion for a directed verdict. Inclusion in the record at that time was appropriate because the agency issue involving Kuxhaus, Schwartz and AHS had been explicitly reserved for post-trial resolution.
Additionally, the Resident Agreement provided that Kuxhaus would "receive general direction from, and shall generally be answerable to," the relevant residency program director (Schwartz headed AHS's radiology residency program during this period). While the Resident Agreement provided that the program director (Schwartz) had sole judgment in determining Kuxhaus's academic advancement, it also provided only AHS with the explicit authority to terminate Kuxhaus's employment.
III.
Some of the procedural history is pertinent to the issues presented. Initially, plaintiffs filed a complaint in Superior Court alleging medical malpractice against Kuxhaus, Schwartz, Walsh, AHS, and Alliance Imaging Center of Morristown. They later amended the complaint to include MIA as a defendant, and, after learning that Kuxhaus was an officer in the USAF, filed a notice of claim under the FTCA with the USAF.
28 U.S.C.A. § 2679 (d)(1) states:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim
arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
The United States filed a scope-of-employment certification pursuant to this provision, asserting Kuxhaus was a USAF officer acting within the scope of her employment at the time of the incident involving Kulper and removed the state court action to federal court. Plaintiffs' complaint was dismissed without prejudice while the USAF conducted an administrative review of the claim, and all defendants waived any statute of limitations defense regarding the refiling of a complaint.
After the administrative review was completed, the United States moved for summary judgment, arguing that it could not be held to be vicariously liable for Kuxhaus's negligence because it was only her "general employer" under the borrowed-servant doctrine and not her "special employer." The district court judge agreed. In a written decision, he found the USAF did not exercise the requisite direct, broad, and "on spot" control over Kuxhaus that identified a special employer who could be liable under the doctrine. Accordingly, he entered an order that same day, granting summary judgment to the United States and dismissing plaintiffs' remaining state-law claims because there was no pending federal question. Plaintiffs then filed a new complaint in the New Jersey Superior Court against AHS, Schwartz, MIA, Walsh, and Emergency Medical Associates, seeking damages for physical injuries allegedly suffered by Kulper through medical malpractice.
The matter proceeded to trial in Superior Court. Following the verdict for plaintiffs, the trial court determined that AHS was vicariously liable for Kuxhaus's negligence. The court reduced the jury's damages award to plaintiffs from $2,500,000 to $250,000 pursuant to the CIA, and entered judgment against AHS for that amount. Plaintiffs asked that judgment be entered against a "Jane Doe" radiologist, rather than Kuxhaus. The trial court denied plaintiffs' request.
Plaintiffs later filed a complaint against AHS and AHSIC under a different docket number, seeking insurance coverage For Kuxhaus's negligence under a third-party beneficiary theory. The complaint was dismissed without prejudice pending this appeal.
IV.
We first address plaintiffs' appeal. Plaintiffs observe that the $250,000 limit on recovery imposed by the CIA applies to hospitals and not to a physician employed by the hospital. N.J.S.A. 2A:53A-7(a), (b), -8. They argue that, if a radiology resident who did not enjoy personal immunity from liability had been on duty the night Kulper went to the emergency room, the $250,000 limit on recovery would not have applied and a judgment against that resident would have been fully satisfied through the hospital's insurance coverage. Contending it was merely a matter of "pure chance" that Kuxhaus was on duty at the time Kulper went to the emergency room, they argue the trial court should have permitted them to amend their complaint to substitute a Jane Doe defendant in place of Kuxhaus and enter judgment against Jane Doe for the $2.5 million verdict to avert an injustice. We disagree.
"The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know the defendant's identity." Caravaggio v. D'Agostini, 166 N.J. 237, 244 n.1 (2001); Gallagher v. Burdette-Tomlin Medical Hosp., 318 N.J. Super. 485, 492 (App. Div. 1999). Although Rule 4:26-4 permits the filing of pleadings against a fictitious party, it states unequivocally, "No final judgment shall be entered against a person designated by a fictitious name."
Citing Samuel v. Doe, 309 N.J. Super. 406 (App. Div. 1998), aff'd as modified, 158 N.J. 134 (1999), and an unpublished Law Division case, plaintiffs argue the courts have relaxed Rule 4:26-4 to avert an injustice in cases where a plaintiff's ability to obtain "full compensation" would be frustrated. Their reliance on these cases is misplaced.
Samuel presented facts which we described as "unique." Id. at 411. The plaintiff was injured in a one-car accident involving her father's automobile. Her version of events was that she permitted a young man she met earlier that evening to drive her father's car and was too intoxicated to recall who he was. Id. at 408. Because the vehicle in question was insured, uninsured motorist benefits were not available to her. Under the terms of her father's automobile insurance policy, bodily injury coverage was available if the collision was caused by a permissive driver. Although the unidentified driver was given permission to drive the insured vehicle, the carrier argued that, since the plaintiff could not obtain a judgment against an unidentified driver, Rule 4:26-4, bodily injury coverage was not available to her.
The tortfeasor could not be identified in the unpublished decision as well.
We found a relaxation of Rule 4:26-4 appropriate but noted our holding was a "narrow one." Id. at 412. We explained:
It is not at all unusual that a party is injured in an automobile accident through the negligence of an unidentified person. The victims in such accidents do not fall through the cracks without a remedy because the tortfeasor is unidentified. In most such instances, the UM coverage will apply. The difference here is that the unidentified tortfeasor was driving the same vehicle occupied by the injured party and owned by her father.
[Ibid.]
The issue presented to the Supreme Court was procedural:
Taking the case as we find it--a case that is predicated upon there being coverage for an unidentified driver under the bodily injury provisions of the policy--the question is how to determine if there was in fact such an unidentified permissive driver of the car and whether that person's negligence caused plaintiff's injuries. There should be a way out of the procedural muddle.
[Samuel, supra, 158 N.J. at 140.]
The Court found support for a route through the muddle in the legislative policy underlying the "comprehensive statutory system" governing automobile insurance which is "designed to have financially responsible persons available to meet the claims of persons wrongfully injured in automobile accidents" and provide "an adequate safety net for individuals hurt in such cases . . . ." Id. at 140-41 (citations and internal quotation marks omitted). The Court concluded, "we are certain that the Legislature would intend that Samuel land somewhere in that safety net." Id. at 141.
Still, the lack of any remedy beyond personal injury protection (PIP) benefits was not sufficient to relax Rule 4:26-4's prohibition. The Court approved a two-step proceeding to determine whether the injured plaintiff could recover under the bodily injury provision of the policy. The first step was to determine whether the plaintiff could establish the core factual requirement for coverage, "that there was another person who was operating the automobile with her permission at the time of the accident." Id. at 142. The Court instructed, "[e]very effort should be made to identify that person." Ibid. The plaintiff would be permitted to proceed with her claim — against the insurance company as the real party in interest — if she could establish that a permitted driver who she could not identify was operating the car. The Court observed, "Technically, a judgment is not required to make such a claim. Once it is established that there was a 'covered person' who was operating the car, the insurance company is contractually required to provide indemnity for that person's fault." Ibid. In the event the plaintiff could not establish the existence of a covered, albeit unidentified, person, the Court stated, the carrier would be granted summary judgment and the plaintiff's recovery would be limited to PIP benefits. Id. at 143-44.
In this case, there is no comprehensive statutory scheme that provides additional policy considerations to be taken into account in our review of plaintiffs' argument. Moreover, we cannot ignore the fact that, unlike the plaintiff in Samuel, plaintiffs had a remedy against an identified tortfeasor, which they pursued. Therefore, the relaxation of Rule 4:26-4 would require the court's complicity in adopting a fiction for the sole purpose of enhancing plaintiffs' recovery. The fact that the available remedy yields less of a recovery because the CIA applies does not place plaintiffs in a position that demands judicial intervention and relaxation of the rule. In any given case, facts may exist that will limit the potential recovery of an injured plaintiff. In addition to statutory limitations, the recovery a plaintiff realizes may be limited by contractual agreement or factors such as minimal insurance coverage or the fact an uninsured tortfeasor is judgment-proof. If we accepted plaintiffs' argument that the application of the CIA provided an adequate basis to fabricate a fictional basis for recovery, Rule 1:1-2 would properly be regarded as a tool to nullify well-established statutory and contractual limitations on recovery.
Plaintiffs also argue the rule should be relaxed so that hospitals will not be motivated "to populate their residency programs with military doctors" and because they are being unfairly penalized by the happenstance that it was Kuxhaus, rather than another AHS radiologist, who misinterpreted Kulper's CT study. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
V.
Defendants first argue that both direct and vicarious liability claims against AHS were barred as a matter of federal law. This argument, which rests upon a misinterpretation of the law, lacks merit and requires only the following limited discussion. R. 2:11-3(e)(1)(E).
The FTCA provides the exclusive remedy for civil actions against the United States, 28 U.S.C.A. § 2679(a), for personal injury
caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
[28 U.S.C.A. § 1346(b)(1).]
Defendants contend that use of the term "exclusive remedy" in the statute means that plaintiffs' only possible claim to recover damages for Kuxhaus's negligence was against the United States and that no other claim arising out of the same subject matter, particularly a vicarious liability claim against AHS, was viable. They argue that, because the action against the United States was dismissed, plaintiffs were foreclosed altogether from the recovery of damages from any source. Defendants are wrong.
The FTCA was amended in response to the United States Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), to "legislate standards defining the scope of federal employee immunity." Aversa v. United States, 99 F.3d 1200, 1207 (1st Cir. 1996). As amended, the FTCA states it provides the exclusive remedy the injured party has "against the employee whose act or omission gave rise to the claim." 28 U.S.C.A. § 2679 (b)(1) (emphasis added). The statute's purpose is to protect the federal employee — and only the federal employee — with absolute immunity.
Contrary to defendants' interpretation, the FTCA does not preclude an injured party's action against any other party based upon the negligence of a federal employee. There is also nothing in the statutory language that limits an injured party to whatever remedy exists against the United States. The very reason that the complaint was dismissed against the United States was that AHS, and not the United States, exercised control over Kuxhaus as her special employer. AHS must therefore bear liability for her negligence.
Defendants also contend that Kuxhaus should not have appeared on the verdict sheet for purposes of the allocation of negligence because she was immune from personal liability. However, Kuxhaus's immunity did not bar consideration of her negligence for the purpose of allocating liability. See Town of Kearny v. Brandt, 214 N.J. 76, 83 (2013) (holding "when the claims against a defendant are dismissed on statute of repose grounds, fault may be apportioned to the dismissed defendant under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law"); Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 305-11 (App. Div. 2001) (holding it was necessary, after claims against defendant physicians had been dismissed for failure to comply with the affidavit of merit statute, for their names to be included on the verdict sheet so the jury could determine the percentage of their negligence, if any).
VI.
After the verdict was rendered, defendants filed a motion for judgment notwithstanding the verdict (JNOV) on the ground that Kuxhaus was exclusively a "borrowed servant" of Schwartz. In Points II, III and IV of their brief, they advance arguments premised on the notion that Schwartz and Kuxhaus had a special employer/borrowed servant relationship. Defendants argue the trial court erred in denying their JNOV motion because (1) the proofs failed to show AHS was Kuxhaus's special employer and (2) the proofs showed Schwartz and MIA were Kuxhaus's special employer. In the alternative, defendants argue that the evidence was sufficient to submit the question whether Kuxhaus was the borrowed servant of Schwartz and MIA to the jury. They argue further that the trial court erred in instructing the jury, over their objection, that any negligence allocated to Kuxhaus would be imputed to AHS. These arguments lack merit.
As is clear from the Fellowship Agreement, Kuxhaus remained a USAF officer throughout her residency with AHS, making the United States her "general employer." Applying our Supreme Court's decision in Galvao v. G.R. Robert Construction Company, 179 N.J. 462 (2004), the federal district court determined AHS was Kuxhaus's "special employer," and, because Kuxhaus was AHS's "borrowed servant," the United States was not liable for her negligence. The court did not decide the question whether Schwartz was a "special employer" because that was "immaterial to the issue before the federal district court.
In Galvao, the Supreme Court adopted a two-part test for determining whether a "general employer . . . may be held vicariously liable for the alleged negligence of its special employee loaned to a special employer." Id. at 472. "The threshold inquiry is whether the general employer controlled the special employee. . . . in the fundamental respondeat superior sense . . . ." Ibid. An employer's control can be shown by "evidence of direct or 'on-spot' control 'over the means by which the task is accomplished,'" as well as by "the 'method of payment[,] who furnishes the equipment, and [the] right of termination.'" Ibid. (quoting Wright v. State, 169 N.J. 422, 437 (2001)). If the general employer exercised such control, the next question is "whether the special employee furthered the business of the general employer." Ibid.
The Fellowship Agreement explicitly provided that Kuxhaus "will be performing duties under the exclusive control and for the primary benefit of the institution," and therefore, "for purposes of liability[,] [Kuxhaus] is a servant of [AHS]." The Resident Agreement was, in effect, an employment agreement between AHS and Kuxhaus. It provided that Kuxhaus would serve on AHS's resident staff and perform the customary duties and obligations associated with such service in the residency program. AHS agreed to pay her a $2600 stipend for her work, give her paid holidays and other employee benefits and provide malpractice insurance for her. Although the Resident Agreement stated Kuxhaus would "receive general direction from, and shall generally be answerable to, the relevant Program Director," only AHS had the right to terminate Kuxhaus's employment.
In reviewing the denial of the JNOV motion, we are required to view the evidence in the light most favorable to plaintiffs. Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 556 (2010). The documentary evidence alone provides ample support for a verdict that results in the attribution of Kuxhaus's negligence to AHS. In those agreements, AHS acknowledged in writing its status as the employer who exercised control over Kuxhaus, assumed responsibility for her negligence and retained the right to terminate her employment. The evidence cited by defendants shows no more than this: Schwartz supervised Kuxhaus's activities, and both of them worked toward a common goal that benefited AHS, providing radiology services for the hospital's patients. Moreover, plaintiffs' expert acknowledged that Schwartz acted within the accepted standards of medical care in instructing Kuxhaus to call Walsh with the information about the imaging study and also, in trusting Kuxhaus to do so. See Stumper v. Kimel, 108 N.J. Super. 209, 213 (App. Div.), certif. den., 55 N.J. 589 (1970) (holding "a surgeon rendering post-operative care to a patient is not liable for the negligence of a hospital-employed resident physician, when the orders given . . . [are] the accepted medical [and hospital] standard of practice."). Defendants' argument that Schwartz should step into the shoes of AHS as special employer fails as a matter of law and lacks sufficient support in the evidence, even to create an issue that required resolution by the jury. We therefore conclude the JNOV motion was properly denied and that the trial judge did not err in the instructions challenged on appeal.
The fact that Kuxhaus moonlighted as a paid independent contractor for MIA does not alter this analysis, as the service that is the subject of this lawsuit was performed at the hospital for a patient of the hospital's emergency room.
In Point V, defendants raise additional arguments of alleged reversible error by the trial court. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION