| [1] |
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
|
| [2] |
DOCKET No. A-6100-04T2
|
| [3] |
906 A.2d 440, 388 N.J.Super. 42, 2006.NJ.0000284<
http://www.versuslaw.com>
|
| [4] |
August 10, 2006
|
| [5] |
C.W., AS FATHER OF J.W., A MINOR AND IN HIS OWN RIGHT, AND E.Y., AS
MOTHER OF J.W., A MINOR AND IN HER OWN RIGHT.,
PLAINTIFFS-APPELLANTS,
v.
THE COOPER HEALTH SYSTEM, D/B/A COOPER
HOSPITAL/ UNIVERSITY MEDICAL CENTER, EDISON CATALANO, M.D. AND ANTHONY
SHERMAN, M.D. DEFENDANTS-RESPONDENTS, AND DAVID GERBER, M.D., G. HADDAD,
M.D., AND BRUCE B. CUNNINGHAM, M.D., DEFENDANTS.
|
| [6] |
On appeal from Superior Court of New Jersey, Law Division, Camden
County, Docket No. CAM-L-7417-02.
|
| [7] |
Gayle R. Lewis argued the cause for appellants (Ms. Lewis and Matthew
D. Schelkopf, on the brief).
|
| [8] |
Stacey L. Moore, Jr. argued the cause for respondent The Cooper Health
System d/b/a Cooper Hospital/University Medical Center (Parker McCay,
attorneys; Carolyn Sleeper, of counsel; Ms. Moore, on the
brief).
|
| [9] |
Joel B. Korin argued the cause for respondent Edison Catalano, M.D.
(Ballard Spahr Andrews & Ingersoll, attorneys; Mr. Korin and Paul F.
Jenkins, on the brief).
|
| [10] |
Sharon K. Galpern argued the cause for respondent Anthony Sherman,
M.D. (Stahl & DeLaurentis, attorneys; Ms. Galpern, on the
brief).
|
| [11] |
Britcher, Leone & Roth, attorneys for amicus curiae Atla-nj (e.
Drew Britcher and Jessica E. Choper, on the brief).
|
| [12] |
The opinion of the court was delivered by: Fuentes,
J.A.D.
|
| [13] |
RECORD IMPOUNDED
|
| [14] |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE
DIVISION
|
| [15] |
APPROVED FOR PUBLICATION
|
| [16] |
Argued June 6, 2006
|
| [17] |
Before Judges Wefing, Fuentes and Graves.
|
| [18] |
The principal issue raised in this appeal requires us to determine
whether a physician and/or hospital can be held civilly liable in damages
to an individual who contracted the human immunodeficiency virus ("HIV")
from a former patient who was not informed of the results of an HIV test
ordered by the physicians responsible for the patient's care. We now hold
that a health care provider, who orders an HIV test for a patient, has a
duty to take reasonable measures to notify that patient of the results of
the test.
|
| [19] |
This duty is made even more paramount when the test results indicate
that the patient is positive for HIV, because: (1) such a patient may be
in immediate need of medical treatment; and (2) from a public health
perspective, such patient must also be advised on how to prevent the
transmission of the virus to others. A health care provider who violates
this duty becomes civilly liable to not only the patient, but to all
reasonably foreseeable individuals who contract the virus from the HIV
positive patient. Because the Law Division held otherwise, we reverse that
aspect of its ruling.
|
| [20] |
The trial court also dismissed the claims against defendant Dr. Edison
Catalano, the director of Cooper Hospital's pathology department, after
concluding that plaintiffs' expert report amounted to nothing more than a
net opinion. We are in agreement with the trial court in this respect, and
affirm that aspect of its ruling.
|
| [21] |
The legal questions under review here came before the Law Division by
way of summary judgment motions filed by a number of the named defendants
in the action. We will thus set out the pertinent facts from the limited
record developed before the motion judge. Before undertaking to describe
these facts, however, we will, in the interest of clarity, first outline
the procedural history that led to the filing of this
appeal.
|
| [22] |
I.
|
| [23] |
Plaintiffs C.W. and E.Y. filed a verified complaint on behalf of
themselves and their minor daughter J.W. against Cooper Health System
d/b/a Cooper Hospital/University Medical Center ("Cooper Hospital"), and
Anthony Sherman, David Gerber, and Ghada Haddad, physicians employed by
Cooper Hospital who were responsible for C.W.'s medical treatment.
Plaintiffs also named as defendants Dr. Edison Catalano, the head of
Cooper Hospital's pathology department, and C.W.'s personal physician,
Bruce Cunningham.*fn1
|
| [24] |
The complaint alleged that defendants had breached a duty of care owed
to each of the plaintiffs, by failing to inform C.W. of the results of an
HIV test ordered at the time he was a patient at Cooper Hospital. As a
result, C.W. was not informed of the need to seek timely medical
treatment, and to take precautionary measures to avoid transmitting the
virus to E.Y. and their child.
|
| [25] |
Approximately one year after the joinder of issue, the trial court
granted defendants' motion for summary judgment seeking the dismissal of
E.Y.'s claims as a matter of law. In granting the motion, the court ruled
that defendants did not have a legal duty to inform E.Y. of C.W.'s HIV
status. Shortly thereafter, the court granted defendants the same relief
with respect to the claims raised on behalf of plaintiffs' minor child. We
denied plaintiffs' motion for interlocutory review of these
orders.
|
| [26] |
Defendant Catalano also moved for summary judgment on the ground that
plaintiffs' expert report purporting to describe Catalano's duties as head
of Cooper Hospital's pathology department was inadmissible as a net
opinion. The trial court agreed, finding that plaintiffs had failed to
present evidence showing that Catalano had breached a legally recognized
duty of care. Thereafter, the motion judge denied plaintiffs' motion for
reconsideration.
|
| [27] |
Approximately six months after this round of motions, Dr. David
Gerber, one of C.W.'s treating physicians, entered into a settlement
agreement with plaintiffs disposing of all claims against him. The consent
order memorializing the settlement agreement indicated that, "Dr. David
Gerber only is HEREBY dismissed [from] any and all claims [E.Y.] and
[J.W.] may have against him." Despite this ostensibly clear language, the
order also contained the following provisions:
|
| [28] |
[1.] Neither Dr. Gerber nor Dr. Sherman will be placed on the jury
verdict sheet and their names will also be removed from the
caption;
|
| [29] |
[2.] Remaining Defendant[s] will not argue [that] Dr. Gerber or Dr.
Sherman deviated from accepted standards of care. . . .
|
| [30] |
We note that the language specifically limiting the relief afforded by
the settlement agreement with respect to the claims asserted by E.Y. and
the child to Dr. Gerber "only", cannot, on its face, be reconciled with
these two provisions. We are satisfied, however, that the parties to the
settlement agreement intended that the claims asserted by E.Y. and the
child against Dr. Sherman remained viable.*fn2 Less than a month after the Gerber settlement, Cooper
Hospital entered into a settlement agreement with C.W. that also included
a waiver of the right to appeal the dismissal of C.W.'s claims against Dr.
Catalano.
|
| [31] |
Thus, as this procedural history illustrates, the only claims
remaining are those asserted by E.Y. and the child against defendants
Cooper Hospital, through its employees Dr. Sherman and Dr. Haddad, and Dr.
Catalano individually, in his capacity as head of Cooper Hospital's
pathology department.
|
| [32] |
II.
|
| [33] |
A. C.W.'s Hospitalization
|
| [34] |
On August 5, 1994, twenty-nine-year-old C.W. was admitted into Cooper
Hospital complaining of confusion, changes in mental status, and
progressive lethargy. He was placed in the intensive care unit, where Dr.
Gerber was an attending physician. C.W.'s history of drug use involved
only marijuana, and the result of a hospital-administered drug-screening
test was negative. Dr. Gerber, as well as the interns and residents then
employed by Cooper Hospital, initially suspected that any of the following
could be among the possible causes for C.W.'s condition: encephalopathy
with or without drug use, encephalitis, meningitis, or a psychiatric
episode. These physicians also consulted with an infectious disease
specialist and a neurologist.
|
| [35] |
On August 7, 1994, just two days after C.W.'s admission into Cooper
Hospital, a resident identified as Dr. Altamura wrote an order for an HIV
test. Dr. Gerber countersigned the order, thus indicating his approval.
Given his medical condition, C.W.'s mother signed the required consent
form for the HIV test. The form read, in pertinent part, as
follows:
|
| [36] |
My doctors have told me that I require HIV antibody
testing.
|
| [37] |
I have read and I understand the information provided in the patient
information sheet entitled, "About the HIV Antibody Test." I have had an
opportunity to discuss with [blank space where "Dr. Altamura" was written
in script] information about the HIV antibody test, its benefits, its
risks and any alternative tests. I have had a chance to ask questions and
they have been answered to my satisfaction.
|
| [38] |
I understand that whether my test results are positive or negative, I
will be offered counseling about HIV and the meaning of the results. I
also understand that my medical care will not be prejudiced by my decision
about whether or not to have an HIV antibody test or by the results of the
test. I am aware that confidential and anonymous HIV testing is available
outside of Cooper Hospital/University Medical Center. I may choose not to
be tested at this time.
|
| [39] |
My signature below means I have been given all of the information I
desire regarding this blood test and its possible results. The report of
this test will become a part of my permanent hospital record and would be
available to those who are entitled to see my record. I hereby give my
permission to have the HIV antibody test performed on a sample of my
blood. [Emphasis added.]
|
| [40] |
The next day C.W. was awake and sufficiently oriented to answer
questions. Because he was slurring his words, the treating physicians
decided to bring in a neurologist for a consultation. C.W.'s condition had
improved sufficiently, and so he was transferred from the intensive care
unit to a medical floor where Dr. Haddad was one of the interns. As the
physician responsible for the supervision of the interns and residents,
Dr. Sherman became C.W.'s attending physician. This ended Dr. Gerber's
role of overseeing C.W.'s medical care. The transfer notes summarizing
C.W.'s care up to that point indicated that the HIV test results were
pending.
|
| [41] |
On August 10, 1994, three days after C.W.'s mother authorized the
administration of the HIV test, C.W. was discharged from Cooper Hospital.
He was diagnosed with having suffered toxic encephalopathy from marijuana
use. Cooper Hospital's discharge instructions indicated that he was given
the "regular" instructions, as well as informed that he was not to engage
in strenuous exercise. C.W. was directed to report to his personal
physician if he experienced loss of consciousness, severe neck pain,
vomiting, or nausea. The discharge summary notes, which were dictated for
Dr. Sherman's signature, did not mention that an HIV test had been ordered
or that the results of an HIV test were pending.
|
| [42] |
B. The HIV Test
|
| [43] |
During the period in question, Cooper Hospital did not use an on-site
laboratory as part of its pathology department to perform HIV tests for
admitted patients. The pathology department's central receiving laboratory
("CRL") sent test samples to outside laboratories and thereafter was
responsible for receiving the test result reports.
|
| [44] |
Dr. Catalano was the supervisor of the pathology department during all
times relevant to this case. The only evidence of the procedures
established by Cooper Hospital to process a physician's request for HIV
testing came through Dr. Catalano's deposition testimony. Thus, according
to Dr. Catalano, all test reports from outside laboratories would be
marked to his attention, even though they would be processed by the CRL's
non-physician supervisor or her staff. Upon the receipt of a test report,
a staff member would advise the patient's treating physician to contact
the CRL for the results.
|
| [45] |
In order to maintain the confidentiality of HIV test results, CRL
staff did not send doctors ordering the test copies of HIV reports, nor
log the results into any of Cooper Hospital's computer systems. The
established procedure required CRL staff to record the HIV test results in
a notebook maintained exclusively for this purpose.
|
| [46] |
Dr. Catalano did not recall whether the CRL used any "quality
assurance" system to ensure that attending physicians were informed when
test results arrived from outside laboratories. Other than the procedures
previously described, Dr. Catalano also did not recall any written policy
for handling the reports of HIV test results.
|
| [47] |
Dr. Catalano asserted that attending physicians bore the
responsibility of relating HIV test results to their patients, and
explained that the CRL would not relate HIV test results to the patient
unless the attending physician had so requested in writing. Although Dr.
Catalano was aware of the obligation to report positive HIV test results
to the New Jersey Department of Health at the time C.W.'s HIV test was
performed, he assumed that this responsibility fell upon the outside
laboratories that actually performed the tests.
|
| [48] |
C.W.'s HIV test was performed by SmithKline Beecham Clinical
Laboratories ("SmithKline"). In a report dated August 13, 1994, and marked
to Dr. Catalano's attention, it indicated that C.W. had tested positive
for HIV. According to Dr. Catalano, at the time C.W. was discharged from
Cooper Hospital, the only responsibility the CRL staff had upon receipt of
a positive HIV report was to notify the patient's treating physician or
the physician who ordered the test. Remarkably, however, there were no
written procedures in place to make any effort to contact the patient
directly, or to notify the State Department of Health.
|
| [49] |
The record here is undisputed that neither Dr. Sherman nor Dr. Gerber
was notified of C.W.'s positive HIV test results. According to Dr.
Sherman, if he had been given the results of an HIV test that was still
pending upon a patient's discharge, he would have contacted the patient or
the patient's personal physician. Patients who did not name a personal
physician were typically referred to Cooper Hospital's medical
clinic.
|
| [50] |
Victoria Brent, a social worker and psychotherapist at Cooper
Hospital's medical clinic, indicated that if the clinic received a
positive HIV test result for a discharged patient, who was not already
scheduled for a follow-up appointment, she would contact the individual
responsible for HIV patient notification at the Camden County Board of
Health. Brent did not keep records of her calls and did not recall whether
she had called the Board of Health about C.W.'s test
results.
|
| [51] |
C. E.Y.'s Involvement
|
| [52] |
In the fall of 1994, E.Y. and C.W. became sexually involved with one
another. On July 18, 1995, their daughter J.W. was born. According to
E.Y., although she could not state so with certainty, she may have had an
HIV test during her pregnancy, because such testing had become routine at
the time. C.W. and E.Y. lived together until December of
1999.
|
| [53] |
In July of 2000, Dr. Bruce Cunningham, C.W.'s personal physician at
the time, treated him for fatigue, fever, rash, and abdominal complaints.
In April of 2002 he referred C.W. to a gastroenterologist who performed an
endoscopy and diagnosed him as suffering from severe candida
esophagitis,*fn3 a known and frequent complication of the acquired
immune deficiency syndrome ("AIDS"). Based on this diagnosis, Dr.
Cunningham ordered an HIV test from a clinical laboratory. The results
indicated that C.W. had developed AIDS.
|
| [54] |
Shortly thereafter, E.Y. was also tested. Her test results revealed
that she was positive for HIV. In her deposition, E.Y. testified that she
had not been sexually involved with any other person following her
separation from C.W. in 1999. The child J.W. tested negative for
HIV.
|
| [55] |
D. Standard of Care Evidence
|
| [56] |
Plaintiffs presented reports and deposition testimony of three
physicians in opposition to defendants' motions for summary judgment. Dr.
Frank Guinn reviewed C.W.'s medical history, including his five-day stay
at Cooper Hospital and issued a report dated March 25, 2003. According to
Dr. Guinn, there was "an absence of instructions and appropriate follow-up
on the discharge of this patient." Although he opined that such a failure
"to communicate the positive HIV results to the patient" was "a
significant deviation from the standard of care," he did not state the
appropriate standard or indicate its source. He believed that the
deviation constituted "very clear" negligence on the part of "Cooper
Hospital, its attending physicians in the ICU and the medical floor, its
consults and employees." He concluded, without any specificity, that
"[f]urther negligence by the defendants caused [E.Y.] to be infected by
[C.W.]."
|
| [57] |
Dr. Kenneth Lewis issued a report dated May 5, 2003. He reviewed
C.W.'s Cooper Hospital records, as well as the records from two other
medical institutions, and the "reporting requirements for providers and
hospitals in New Jersey for HIV disease and AIDS," all of which were
provided by plaintiffs' counsel. Without expressly stating the relevant
standard of care, Dr. Lewis concluded that Cooper Hospital and its
employees had deviated from the standard of care in the following
manner:
|
| [58] |
(1) Cooper Hospital employees Dr. Jose Diaz Jimenez (the physician,
who approved C.W.'s discharge instructions), and the attending nurse(s)
"did not advise [C.W.] to obtain follow up [sic] of his pending HIV
results" and did not schedule a follow- up appointment for him; (2) Dr.
Catalano and the CRL staff failed to ensure that the pending test results
would be provided to C.W.'s attending or treating doctors after his
discharge; and (3) Dr. Sherman, Dr. Gerber, and Dr. Haddad and other
unspecified resident physicians failed "to solicit and act on the results
of [C.W.'s] positive HIV test results when they came [sic] available on
8/13/94."
|
| [59] |
The final expert evidence presented by plaintiffs came from
pathologist Dr. John Shane, the former medical director of both a hospital
laboratory and a commercial laboratory in Pennsylvania. Dr. Shane reviewed
Cooper Hospital's records of C.W.'s hospitalization, as well as the
subsequent medical records of the plaintiffs, and issued a report dated
October 25, 2003. According to Dr. Shane, the "standard practice of
Laboratory Medicine" requires a medical lab to "insure that all
significant laboratory results reach the eyes of the attending physicians
and that patients with significant disease processes diagnosed
definitively by laboratory modalities are promptly identified and brought
to treatment." He thus opined that "[a]nything short of that practice is
substandard." The use of an outside laboratory for the actual testing in
his opinion, did not diminish Cooper Hospital's responsibility to be
informed of the test results, and thereafter notify the
patient.
|
| [60] |
In Dr. Shane's opinion, Cooper Hospital, Dr. Catalano and the CRL
staff, all shared responsibility "to have in place reporting modalities
that will deliver laboratory testing results to the attending physicians
after the patient is discharged." Without describing what procedures
Cooper Hospital and its employees used or should have used, Dr. Shane
opined that the failure to convey the test results "to the attending
clinicians" demonstrated that Cooper Hospital's actions "did not meet
expected standards."
|
| [61] |
Dr. Shane asserted that "[t]he regulations of the Department of
Health; the laws of the state of NJ; the regulations of the Joint
Commission on Accreditation Hospitals [sic]; and the regulations of the
College of American Pathologists" all required C.W.'s attending physicians
to report the positive HIV test results and required Dr. Catalano to
"provide for" such reporting. This assertion, however, is not supported by
even a summary of the alleged laws or regulations that it referenced.*fn4
|
| [62] |
In his deposition Dr. Shane identified the regulations of the College
of American Pathologists as the source for his opinion that the medical
director of a clinical laboratory was responsible for instituting methods
to inform attending physicians of test results that are received after a
patient is discharged. He added, however, that even if such protocols had
been in place, the event under review here would nonetheless be a
deviation from the standard of care. Stated differently, according to Dr.
Shane "[s]omebody ought to [be] responsible."
|
| [63] |
More generally, Dr. Shane based his assessment of Dr. Catalano's duty
on the fact that "[e]very textbook of medicine . . . will say that when an
HIV test is positive you must treat." Thus, on the principle that "[t]he
physician is the captain of the ship in terms of the treatment of that
patient," he or she remains responsible, as "the ultimate caregiver," for
the proper performance of any delegated task. When confronted with a
representation that the so-called "captain of the ship" doctrine was not
the governing standard in New Jersey, Dr. Shane responded that "[c]ommon
sense" compelled his conclusion, because otherwise "the physician has no
responsibility to the patient."
|
| [64] |
III. Standard of Review
|
| [65] |
We review a grant of summary judgment de novo, using the same standard
that applied in the trial court. Turner v. Wong, 363 N.J. Super. 186,
198-99 (App. Div. 2003). That standard is "'whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.'" Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91
L.Ed. 2d 202, 214 (1986)). Summary judgment must be denied if "the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party in consideration of the applicable
evidentiary standard, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving party." Id.
at 523.
|
| [66] |
IV. Duty of Care
|
| [67] |
In Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 398-99 (2006), our
Supreme Court recently reviewed the question of duty of care in the
context of third party liability. The issue in Olivo concerned "whether a
landowner can be liable for injuries allegedly caused from asbestos
exposure experienced by the wife of a worker who had performed welding and
steam fitting tasks that brought him into contact with asbestos on the
landowner's premises." Ibid.
|
| [68] |
Writing for the Court, Justice LaVecchia noted that courts
"traditionally have been reposed with responsibility for determining the
scope of tort liability." Id. at 401. In going about this task, we start
by inquiring whether the imposition of a duty to exercise care to avoid
harm to another comports, under the circumstances, with basic notions of
fairness and is in furtherance of sound public policy. Hopkins v. Fox
& Lazo Realtors, 132 N.J. 426, 439 (1993).
|
| [69] |
Foreseeability is the key to determining whether imposing a duty of
care is fair and reasonable.
|
| [70] |
Foreseeability is significant in the assessment of a duty of care to
another; moreover, it has a dual role in the analysis of tort
responsibility. Generally, our jurisprudence recognizes "foreseeability as
a determinant of a [defendant's] duty of care . . . [as well] as a
determinant of whether a breach of duty is a proximate cause of an
ultimate injury." [Olivo, supra, 186 N.J. at 402 (quoting Clohesy v. Food
Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1997)).]
|
| [71] |
Applying these legal principles to the facts in Olivo, the Court held
that Exxon Mobil had a duty to protect its workers from the known
consequences of exposure to asbestos in the work place. The court further
held, that:
|
| [72] |
[T]o the extent Exxon Mobil owed a duty to workers on its premises for
the foreseeable risk of exposure to friable asbestos and asbestos dust,
similarly, Exxon Mobil owed a duty to spouses handling the workers'
unprotected work clothing based on the foreseeable risk of exposure from
asbestos borne home on contaminated clothing. We agree with the Appellate
Division's assessment of the fairness and justness of imposing on Exxon
Mobil such a duty to plaintiff's wife. [Id. at 404-05 (emphasis
added).]
|
| [73] |
Although the question in Olivo concerned premises liability, the
analytical paradigm used by the Court to determine the duty of care owed
to a third party is equally useful here. As the employer in Olivo owed a
duty of care to its employees to protect them against the known risks of
exposure to asbestos, Cooper Hospital had a duty to notify C.W. of the
results of his HIV test. This diagnostic test was ordered by Cooper
Hospital's staff physicians as part of the medical treatment received by
C.W. while he was a patient at the hospital.
|
| [74] |
The medical significance of the test is self-evident. Even back in
1994, HIV was well known to be an extremely serious medical condition.
Although a patient who tested positive for HIV at that time had limited
treatment options, his chances of arresting or at least delaying the
development of full blown AIDS depended upon the immediate commencement of
an aggressive treatment campaign. From a public health perspective, a
person who tested positive for HIV also needed to be told how to prevent
transmitting the virus to others. By incorporating these concerns into its
HIV test consent form, Cooper Hospital articulated the appropriate
standard of care.
|
| [75] |
Cooper Hospital's duty to notify C.W. of the results of his HIV test
did not end upon his discharge. As noted by plaintiffs' expert, Dr. Lewis,
the medical professionals responsible for preparing C.W.'s discharge
summary and instructions should have clearly and conspicuously indicated
that the test results were pending. C.W. should have been advised to
contact a hospital representative for a follow-up appointment to discuss
the results of the test. Alternatively, given the seriousness of what was
at stake, Cooper Hospital should have made some effort to contact C.W.
directly.*fn5
|
| [76] |
The next step in the analysis requires us to determine whether Cooper
Hospital's duty of care extended to E.Y. as well. As C.W.'s sexual
partner, we conclude that Cooper Hospital owed E.Y. the same duty of care
the employer in Olivo owed to its employee's wife. As in Olivo, the
question here turns on foreseeability.
|
| [77] |
It is entirely foreseeable that C.W., a twenty-nine-year-old
individual, was, or would likely be sexually active. Indeed, a central
part of Cooper Hospital's responsibility involved advising C.W. on the
steps he needed to take to avoid transmitting the virus to another person.
Under these circumstances, E.Y., as C.W.'s sexual partner, falls within
the scope of foreseeable individuals who would be harmed by Cooper
Hospital's failure to inform C.W. of his HIV positive
status.
|
| [78] |
The Appellate Division of California reached the same conclusion in
Reisner v. Regents of Univ. of Cal., 31 Cal. App. 4th 1195, 1200-04 (Cal.
App. 1995). The plaintiff in Reisner was the boyfriend of a teenage girl
who had been infected with HIV when she received a transfusion of tainted
blood. The physician who supervised the transfusion failed to notify the
teenager and her family. Id. at 1197-98. The boyfriend became infected
after having had sexual relations with the girl. The appellate court
reversed the trial court's dismissal of the boyfriend's negligence suit
against the girl's doctor, holding that:
|
| [79] |
[W]hen "a physician treats a patient who has been exposed to or who
has contracted a communicable and/or contagious disease, it is imperative
that the physician give his or her patient the proper advice about
preventing the spread of the disease. Communicable diseases are so named
because they are readily spread from person to person. Physicians are the
first line of defense against the spread of communicable diseases, because
physicians know what measures must be taken to prevent the infection of
others. The patient must be advised to take certain sanitary measures, or
to remain quarantined for a period of time, or to practice sexual
abstinence or what is commonly referred to as 'safe sex.' []Such
precautions are taken not to protect the health of the patient, whose
well-being has already been compromised, rather such precautions are taken
to safeguard the health of others. Thus, the duty of a physician in such
circumstances extends to those 'within the foreseeable orbit of risk of
harm' . . . . If a third person is in that class of persons whose health
is likely to be threatened by the patient, and if erroneous advice is
given to that patient to the ultimate detriment of the third person, the
third person has a cause of action against the physician, because the
physician should recognize that the services rendered to the patient are
necessary for the protection of the third person." [Id. at 1202 (quoting
DiMarco v. Lynch Homes-Chester County, Inc., 583 A.2d 422, 424-25 (Pa.
1990)).]
|
| [80] |
Here, defendants successfully argued before the trial court that even
if they had known the identity of C.W.'s sexual partner, they were legally
precluded from advising her of his HIV status by the AIDS Assistance Act,
N.J.S.A. 26:5C-1 to -24. This argument misses the point.
|
| [81] |
The question is not whether defendants have a duty to notify E.Y.
directly of C.W.'s HIV test results. The duty of care to a third party
such as E.Y. requires the health care provider to take all reasonable
measures to notify the patient of the results of his HIV test, and
thereafter counsel the infected patient on how to avoid the transmission
of the virus. Once this is done, it is up to that individual to act
responsibly in his own conduct. Thus, the harm to E.Y. flows from C.W.'s
ignorance of his own health status, not from Cooper Hospital's failure to
notify E.Y. of C.W.'s medical condition.
|
| [82] |
The imposition of this duty of care upon health care providers also
promotes sound public policy. As the Legislature declared more than
twenty-two years ago: "[t]he effective identification, diagnosis, care and
treatment of persons who have contracted [HIV and] . . . 'AIDS,' is of
paramount public importance." N.J.S.A. 26:5C-2a. HIV and AIDS is not just
a personal tragedy, but a burgeoning public health crisis, because
"[p]eople who have already been infected might not be aware of their
exposure and may unknowingly infect hundreds more individuals." N.J.S.A.
26:5C-2f.
|
| [83] |
We thus hold that the duty of care of Cooper Hospital and its staff
physicians extended to plaintiff E.Y., because she is within the class of
reasonably foreseeable individuals whose health is likely to be threatened
by the patient's ignorance of his own health status. Stated differently, a
third person has a cause of action against a health care provider if the
services rendered to the patient are necessary for the protection of the
third person.
|
| [84] |
V. Insufficiency of Expert's Opinion
|
| [85] |
Appellants argue that as supervisor of the CRL, Dr. Catalano had a
duty to ensure that the physician responsible for C.W.'s treatment
received the results of his HIV test. It is undisputed that Dr. Catalano
cannot show that C.W.'s test results were in fact delivered or otherwise
made known to any of C.W.'s doctors. Plaintiffs further argue that
"regulations" required Dr. Catalano to report C.W.'s positive test results
to the State Department of Health and Senior Services, which presumably
would have informed C.W. Thus, according to plaintiffs, the motion judge
erred when he determined that plaintiffs' expert report amounted to a net
opinion, not supported by competent authority. We disagree.
|
| [86] |
The reporting requirements for HIV and AIDS are set forth in N.J.A.C.
8:57-2.2. Subsection (a) of this regulation promulgated by the Department
of Health and Senior Services provides that:
|
| [87] |
Every physician attending a person found to be infected with HIV, or
ordering a test resulting in the diagnosis of HIV, shall, within 24 hours
of receipt of a laboratory report indicating such a condition, or within
24 hours of making a diagnosis of HIV infection or AIDS, report in writing
such condition directly to the Department of Health and Senior Services on
forms supplied by the Department of Health and Senior Services.*fn6 [Emphasis added.]
|
| [88] |
In addition, "[e]very clinical laboratory" must report to the
Department of Health and Senior Services after completing "a quantitative
PCR (viral load) test, regardless of test result," or any other HIV test
that returns a positive result. N.J.A.C. 8:57-2.2(c). If a physician "is
aware that" a hospital "is reporting [such a] person as being infected
with HIV" or that the person "has previously been reported to the
Department . . . as being infected with HIV," then the physician is
relieved from the responsibility of making an additional report. N.J.A.C.
8:57-2.2(a). The same is true for a hospital. N.J.A.C. 8:57-2.2(b).
Clinical laboratories are not exempted from this reporting requirement,
regardless of whether some other health professional has already done
so.
|
| [89] |
It must be emphasized, however, that a physician or hospital can rely
on a clinical laboratory's report only if the report had been made on some
"previous" occasion. Here, the clinical laboratory's (SmithKline)
reporting obligation was contemporaneous with the reporting obligation of
Cooper Hospital and the treating doctors. As such, Cooper Hospital and the
treating doctors remained legally obligated to report C.W.'s positive HIV
test results to the Department of Health. N.J.A.C. 8:57-2.2(a),
(b).
|
| [90] |
This regulatory scheme is not relevant to determining Dr. Catalano's
duty of care as a director of Cooper Hospital's pathology department. Dr.
Catalano was not one of C.W.'s "attending" physicians. He was not involved
in the decision to order an HIV test for the purpose of diagnosing C.W.'s
medical condition and he was not the supervisor of SmithKline, the
laboratory that actually performed C.W.'s HIV test to "completion." The
trial court therefore correctly ruled that the regulation did not require
Dr. Catalano to report C.W.'s test results to the Department of
Health.
|
| [91] |
Relying on Dr. Shane's report and his deposition testimony, plaintiffs
also argue that Dr. Catalano had a common law duty to report C.W.'s HIV
test results. The evidence presented by plaintiffs does not support this
argument. Expert opinions are admitted at the trial court's discretion.
State v. Summers, 176 N.J. 306, 312 (2003); B.F. Goodrich Co. v. Oldmans
Twp., 323 N.J. Super. 550, 551 (App. Div. 1999). Experts may opine on the
basis of their "knowledge, skill, experience, training, or education,"
N.J.R.E. 702, but they may not give a "net opinion," which is an opinion
that is unsupported by factual evidence and is thus inadmissible. In re
Yaccarino, 117 N.J. 175, 196 (1989); Buckelew v. Grossbard, 87 N.J. 512,
524 (1981).
|
| [92] |
An expert must give "the why and wherefore of his expert opinion, not
just a mere conclusion." Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540
(App. Div.), certif. denied, 145 N.J. 374 (1996). Experts in negligence
cases must establish the actual existence of a standard of care, and may
not simply declare their personal preferences or the conduct they wish to
encourage as being the standard. Fernandez v. Baruch, 52 N.J. 127, 131
(1968); Taylor v. DeLosso, 319 N.J. Super. 174, 179-80 (App. Div. 1999);
Crespo v. McCartin, 244 N.J. Super. 413, 422-23 (App. Div.
1990).
|
| [93] |
Here, the trial court correctly found that Dr. Shane's report amounted
to nothing more than a net opinion. As discussed above, the report
erroneously stated that the statutes and regulations gave Dr. Catalano and
the CRL a duty to report C.W.'s positive test results to the Department of
Health. It further stated that the "regulations" of certain professional
bodies imposed a similar duty, but failed to relate their actual language
or demonstrate that they were mandatory.
|
| [94] |
Dr. Shane declared the practices of the two laboratories where he had
worked to represent "[t]he standard practice of Laboratory Medicine," with
no indication of how and why those laboratories developed their practices.
See Taylor, supra, 319 N.J. Super. at 179-80 (unexplained statement that
"accepted practice" required particular actions was merely expert's
"personal" standard and thus "equivalent to a net opinion"); accord Kaplan
v. Skoloff, 339 N.J. Super. 97, 103 (App. Div. 2001). He also failed to
give a basis for making a hospital's pathology department or its
supervisor separately liable from the hospital for the same negligent
acts.
|
| [95] |
Dr. Shane's deposition testimony also failed to elucidate the basis
for his conclusion that Dr. Catalano breached a recognized duty of care.
His implication that Dr. Catalano had a duty to "treat" C.W.'s HIV
infection, based only on his observation that "[e]very textbook of
medicine . . . will say that when an HIV test is positive you must treat,"
is a quintessential net opinion. Such a broad unsupported statement
provides no explanation as to how pathology department personnel become
vested with a duty to provide actual medical treatment to a patient who is
under the care of attending physicians.
|
| [96] |
Indeed, this assertion is inconsistent with Dr. Shane's description of
his own duties when he supervised a hospital laboratory. In this capacity,
Dr. Shane testified that he did not "treat" patients beyond ensuring that
their attending physicians received their test results.
|
| [97] |
Finally, Dr. Shane's invocation of the doctrine of "the captain of the
ship," a concept that makes a physician vicariously liable for the
negligence of others who were involved in caring for the same patient, but
were not under the doctor's control or supervision, has been expressly
rejected in New Jersey by Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J.
335, 346 (1994); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20,
34-35 (App. Div. 1998); Johnson v. Mountainside Hosp., 239 N.J. Super.
312, 322 (App. Div.), certif. denied, 122 N.J. 188 (1990); Sesselman v.
Muhlenberg Hosp., 124 N.J. Super. 285, 290 (App. Div. 1973). We now
reaffirm our rejection of this doctrine as incompatible with our State's
tort jurisprudence.
|
| [98] |
VI. Conclusion and Recapitulation
|
| [99] |
The trial court's judgment dismissing plaintiff E.Y.'s complaint
against Cooper Hospital and the attending physicians of C.W. is reversed.
The court's order dismissing plaintiff's complaint against Dr. Edison
Catalano is affirmed. The matter is remanded for trial.
|
| [100] |
We turn now to the claim of J.W., the daughter of C.W. and E.Y., born
approximately one year after her father's discharge from Cooper Hospital.
The nature of her claim is not clearly delineated before us. Clearly, she
can have no present claim herself for she fortunately was born without the
HIV virus. To the extent that she is asserting a claim that she is at an
increased risk for becoming HIV positive in light of her parents'
condition, we reject that claim. Those cases which have permitted a
recovery based upon an increased risk of harm are, in our judgment,
distinguishable, because they involve the existence of an underlying
condition. J.W. does not have such an underlying condition.
|
| [101] |
The order under review is affirmed in part and reversed in part and
the matter is remanded for further proceedings. We do not retain
jurisdiction.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [102] |
*fn1 Cunningham is not a party to this appeal, and the
record does not indicate that he participated in the proceedings before
the trial court.
|
| [103] |
*fn2 Dr. Sherman himself implicitly acknowledges this in
the "Statement of Procedural History" included in his brief filed in this
appeal.
|
| [104] |
*fn3 Candida esophagitis is a fungal or yeast infection of
the esophagus. Stedman's Medical Dictionary, 237, 537 (25th ed.
1990).
|
| [105] |
*fn4 N.J.S.A. 26:5C-6 requires that "all diagnosed cases of
HIV infection shall be reported to the department [of health] along with
the identifying information for the person diagnosed."
|
| [106] |
*fn5 We note, as a matter of common experience, that in the
process of admitting and discharging patients, hospitals routinely acquire
a great deal of personal information from patients, including place of
residence, telephone number, name and location of employer, etc. Although
most of this information is gathered to assist the hospital's billing
department, it can certainly be made available to serve a medical
need.
|
| [107] |
*fn6 The regulation contained the same language during the
relevant time period. It was amended in 2003 to broaden reporting
requirements by including insurers as entities that require HIV testing as
part of an underwriting process. N.J.A.C.
8:57-2.2(b).
|