SHAWN LABEGA v. HETAL C. JOSHI, M.D. (L-3088-18, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3399-20
A-3400-20
A-3401-20
A-3402-20
SHAWN LABEGA,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
February 1, 2022
HETAL C. JOSHI, M.D., APPELLATE DIVISION
JONATHAN BORJA, PA-C,
MARY V. WHITECAVAGE, RN,
COLLEEN T. MURPHY, RN,
CAROLYN HUDAK, RN,
MIDDLESEX EMERGENCY
PHYSICIANS, P.A., JFK
MEDICAL CENTER, and
HACKENSACK MERIDIAN
HEALTH,
Defendants-Appellants,
and
TEAMHEALTH HOLDINGS,
INC. a/k/a TEAMHEALTH,
Defendant-Respondent.
Argued November 15, 2021 – Decided February 1, 2022
Before Judges Messano, Accurso and Rose.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex
County, Docket No. L-3088-18.
Orlovsky Moody Schaaff Conlon Bedell McGann &
Gabrysiak, attorneys for appellants Mary V.
Whitecavage, RN, Colleen T. Murphy, RN, Carolyn
Hudak, RN, JFK Medical Center and Hackensack
Meridian Health in A-3399-20 (Anthony W.
Liberatore and Michael M. McGann, on the brief).
Jay J. Blumberg argued the cause for appellant
Jonathan Borja, PA-C in A-3400-20 (Blumberg &
Wolk, LLC, attorneys; Jay J. Blumberg, of counsel
and on the brief; Erika L. Mohr, on the brief).
Kenneth M. Brown argued the cause for appellant
Hetal C. Joshi, M.D. in A-3401-20 (Weber Gallagher
Simpson Stapleton Fires & Newby, LLP, attorneys;
Kenneth M. Brown, of counsel and on the brief;
Justyn M. Coddington and Jennifer Suh, on the brief).
Mark A. Petraske argued the cause for appellant
Middlesex Emergency Physicians, PA in A-3402-20
(Dughi, Hewit & Domalewski, attorneys; Mark A.
Petraske, of counsel and on the brief; Ryan A.
Notarangelo, on the brief).
Bruce H. Nagel argued the cause for respondent
Shawn Labega (Nagel Rice, LLP, attorneys; Bruce H.
Nagel and Susan Fetten Connors, of counsel and on
the briefs).
The opinion of the court was delivered by
ACCURSO, J.A.D.
We permitted defendants in this medical malpractice action leave to
appeal the trial court's denial of their motions for partial summary judgment on
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2
plaintiff's claims for breach of contract and hospital policy based on a third -
party beneficiary theory as well as his claims for negligence per se for
defendants' alleged violation of the hospital policies incorporated into those
contracts. Because well-established precedent makes clear neither cause of
action is available to plaintiff in this case as a matter of law, we reverse.
The essential facts are easily summarized. Plaintiff Shawn Labega, then
forty-years-old, went to the Emergency Room at defendant JFK Medical
Center1 in January 2018 complaining of aching pain in his right ankle that had
persisted for several days, although he couldn't recall injuring it. Plaintiff was
triaged by defendant Colleen T. Murphy, RN and assessed and evaluated by
defendants Mary V. Whitecavage, RN and Carolyn Hudak, RN. Whitecavage
noted the nailbeds of two toes on plaintiff's right foot were cyanotic, and the
toes were cool to the touch.
Plaintiff was examined by defendant Jonathan Borja, PA-C, who ordered
pain medication and a muscle relaxer, as well as an x-ray, which showed no
fracture. Borja diagnosed plaintiff with a sprained ankle and discharged him
with an air cast and recommendations for follow-up care. Defendant Hetal C.
Joshi, M.D. was the attending physician in the ER that day, responsible for
1
Defendant JFK Medical Center is also known as Community Hospital
Group, Inc.; it is an affiliate of defendant Hackensack Meridian Health.
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supervising the physician assistants, including Borja. He did not examine
plaintiff but discussed his care with Borja and signed off on the chart the
following day. Both Joshi and Borja had contractual agreements with
defendant North Jersey Emergency Physicians, PA d/b/a Middlesex
Emergency Physicians, PA, the entity JFK contracted with to staff its
emergency department.
Plaintiff returned to the ER five days later, again complaining of pain,
and now cold, in his right foot. A vascular workup revealed a right popliteal
occlusion from thrombus. When doctors were unable to restore blood flow,
plaintiff underwent a below-knee amputation of his right leg.
Plaintiff sued defendant-appellants alleging medical negligence and, as
to Middlesex, JFK and Joshi, vicarious liability for the negligent acts of their
agents or employees. Three months before the end of extended discovery,
plaintiff moved to file a third amended complaint to assert seven new counts
alleging causes of action for breach of contract and negligence per se.
Specifically, plaintiff alleged the terms of express contracts entered into
between JFK and Middlesex, and those between Middlesex and Joshi and
Borja, as well as JFK emergency department policies, procedures, and
protocols, required defendants to comply with specific terms and provisions
governing patient care. Plaintiff further claimed that as a patient of
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defendants, he was an intended third-party beneficiary of those contracts,
policies, protocols and procedures; that defendants breached their express
obligations under their contracts and violated JFK's emergency department
policies, procedures, and protocols, and that those breaches and violations
resulted in his injuries, thereby allowing him to recover damages. Plaintiff
also alleged defendants were liable for negligence per se for violating JFK's
policies, protocols and procedures incorporated into the contracts because
those acts or omissions "violate standards of care of professional practice that
govern and guide patient care at JFK's emergency department."2
2
We summarize the proposed counts as follows:
Count 9: breach of contract against Joshi, for
violating his physician independent contractor
agreement with Middlesex by failing to comply with
JFK's rules, obligations, policies and guidelines
involving the care and treatment of plaintiff, a third-
party beneficiary of the physician agreement;
Count 10: breach of contract against Joshi, for
violating his physician agreement with Middlesex by
failing to ensure that Borja's treatment and care of
plaintiff, a third-party beneficiary of the contract,
complied with all rules, regulations, and policies of
JFK;
Count 11: breach of contract against Borja, for
violating his employment agreement with Middlesex
by failing to comply with JFK's policies, including but
not limited to procedures, regulations, guidelines and
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protocols of JFK's emergency department, in his
treatment and care of plaintiff, a third-party
beneficiary of the employment agreement;
Count 12: breach of contract against JFK and
Middlesex, for violating their professional services
agreement by failing to comply with all applicable
hospital policies, procedures, protocols, and guidelines
governing services provided by physicians in the
emergency department, including but not limited to
the JFK physician assistant policy with respect to the
treatment and care of plaintiff, a third-party
beneficiary of the professional services agreement;
Count 13: liability against JFK for breach of its
emergency department policies and procedures known
as "Emergency Department Triage Assessment,"
"Emergency Department RN Staff Qualifications,"
"Required Education RN," and "Quality Assurance
Policy" through the negligence of persons and entities
involved in the treatment and oversight of treatment of
plaintiff, a third-party beneficiary of the JFK policies;
Count 14: liability of all defendants for negligence
per se for violating JFK's policies, procedures,
protocols and guidelines for patient care in JFK's
emergency department incorporated within the
professional services agreement between Middlesex
and JFK, the physician agreement between Middlesex
and Joshi, and the employment agreement between
Middlesex and Borja "as those acts and/or omissions
violate standards of care of professional practice that
govern and guide patient care at JFK's emergency
department";
Count 15: vicarious liability on the part of JFK,
Middlesex, Joshi, and Borja "for any contractual
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Although defendants had not opposed plaintiff's prior motions to amend
his complaint, all but Middlesex opposed this motion, arguing plaintiff's
breach of contract and negligence per se claims "are not recognized or
appropriate under New Jersey law and, as such, amendment would be futile."
See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (noting futility is
an exception to the rule that motions to amend are to be granted liberally,
because if "the amended claim will nonetheless fail . . . , allowing the
amendment would be a useless endeavor").
The motion judge disagreed. Deeming plaintiff's breach of contract
claim actionable, the judge noted "contractual breaches can be and often are
suggestive, and even clear evidence, of deviations from the standards of care ."
And he noted New Jersey law allows a third-party beneficiary to sue for breach
of contract. N.J.S.A. 2A:15-2; Rieder Cmtys., Inc. v. Twp. of N. Brunswick,
227 N.J. Super. 214, 221-22 (App. Div. 1988) (noting the statute "merely
restates established New Jersey law that third-party beneficiaries may sue upon
a contract made for their benefit without privity of contract").
breaches and negligent acts on the part of" John Doe
defendants.
A-3399-20
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In finding plaintiff had sufficiently pled a cognizable claim of
negligence per se, the judge did not address plaintiff's proposed pleading of the
cause of action, which was premised entirely on his allegation in count
fourteen that defendants' breaches of the "[p]olicies, procedures, protocols and
guidelines for patient care in JFK's emergency department" constituted
"negligence per se as those acts and/or omissions violate standards of care of
professional practice that govern and guide patient care at JFK's emergency
department." Instead, the judge looked to plaintiff's allegation in count eight,
also included in plaintiff's second amended complaint and thus not a new
pleading, alleging Joshi's vicarious liability for Borja's conduct and care of
plaintiff under the Physician Assistant Licensing Act, N.J.S.A. 45:9-27.10 to
-27.28 and its implementing regulations, N.J.A.C. 13:35-2B.1 to -2B.19, and
concluded they could support a cause of action for per se negligence.
In April 2021, defendants moved for partial summary judgment,
collectively seeking dismissal of new counts nine through fifteen of the third
amended complaint. Plaintiff opposed the motions and cross-moved for partial
summary judgment on count eight asserting Joshi's vicarious liability for
Borja's negligence by virtue of the Physician Assistant Licensing Act . The
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judge granted plaintiff's motion for partial summary judgment on liability on
count eight and denied defendants' motions. 3
In explaining his ruling on defendants' motions in an oral opinion, the
judge deemed it "not uncommon in medical malpractice/negligence cases to
permit theories of breach of contract, third party beneficiary, and negligence
per se claims to be asserted where implicated parties were or are required by
contract to abide by hospital policies, procedures and protocols, in addition to
statutory obligations." He found plaintiff's third-party beneficiary claims "a
fact-sensitive disputed issue that . . . should be [left] for the jury," despite the
"'self-serving' language in the agreements that portended to instruct that the
rights and obligations to be performed under those agreements were not
intended to confer any rights upon third parties."
As to plaintiff's negligence per se claims, the judge relied on the findings
he made in granting plaintiff's motion to amend, that "[t]he violation of a
statute or regulation 'may be considered by a jury together with all of the
evidence in determining issues of negligence[,]' and this proposition is
'subsumed by the overriding principle that the [] statutory violation, to be
evidential, must be causally related to the happening of the accident,'" quoting
3
Defendant Joshi did not seek interlocutory review of the liability judgment
on count eight, and it is not a part of this appeal.
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Mattero v. Silverman, 71 N.J. Super. 1, 9 (App. Div. 1961). He concluded that
"[g]enerally speaking, negligence per se can be asserted when there is a causal
relationship between the negligence and the violation of the statute, regulation
or [hospital] policy," and found the evidence here was not "so one-sided" as to
permit defendants to prevail on their motions.
The judge rejected defendants' argument that plaintiff had "wrongfully
conflated the issues of breach of contract, third-party beneficiary and
negligence per se theories and causes of action with that of medical
negligence," finding "if anything has been conflated here, it is [defendants']
claim that these allegations are somehow futile or non-actionable as a matter of
law."
On appeal, defendants reprise their arguments to the trial court that
plaintiff's third-party beneficiary and negligence per se claims are not
actionable as a matter of law. They maintain the court's ruling is not supported
by the facts or established law, and if left intact, will "rewrite the law in this
area," exposing hospitals and healthcare providers to "new and almost
limitless" claims. Plaintiff counters that notwithstanding "the panicked
arguments" of defendants, the court's rulings "are not improper expansions of
existing law," and "are instead common-sense explanations of well-settled law
within the context of a unique and fact-sensitive setting."
A-3399-20
10
We review summary judgment de novo using the same standard that
governs the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard requires the court
to grant summary judgment when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law ." R.
4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).
Because the trial court does not enjoy the advantage in discerning the law it
does in discerning the facts, a reviewing court owes no special deference to the
"trial court's interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
The trial judge proceeded under a misapprehension here. As plaintiff's
counsel necessarily conceded at argument, it is not common "in medical
malpractice/negligence cases to permit theories of breach of contract, third
party beneficiary and negligence per se claims to be asserted where implicated
parties were or are required by contract to abide by hospital policies,
procedures and protocols, in addition to statutory obligations." As our
Supreme Court has explained, "a patient generally has three avenues for relief
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against a physician, namely, '(1) deviation from the standard of care . . .; (2)
lack of informed consent; and (3) battery.'" Liguori v. Elmann, 191 N.J. 527,
548 (2007) (quoting Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J.
537, 545 (2002)).
Breach of contract claims in a medical malpractice context are rare,
limited as they are to cases involving a "special agreement" with a physician.
See Perna v. Pirozzi, 92 N.J. 446, 465 n.4 (1983). The Court in Perna
instructed "[w]here the essence of a cause of action is an allegation of the
failure to provide medical care or to provide that care properly, a plaintiff
should couch the cause as malpractice." Ibid. That is, of course, the essence
of the claim here — that defendants failed to treat, or to treat properly,
plaintiff's injured right ankle. It is only when "a doctor has made a special
agreement to perform medical services" that "in an appropriate case, an action
might also be for breach of contract." Ibid. See Murphy v. Implicito, 392 N.J.
Super. 245, 264-69 (App. Div. 2007) (holding breach of contract could lie for
alleged breach of surgeon's agreement to perform the plaintiff's spinal fusion
surgery without use of cadaver bone).
Plaintiff's claim is not predicated on any "special agreement" with the
hospital or health care providers he encountered in the emergency room at
JFK. Instead, plaintiff asserts he is a third-party beneficiary of several policies
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JFK has put in place to govern patient care in its emergency department and
the contracts JFK has with Middlesex to staff the hospital's emergency
department and Middlesex's contracts with Joshi and Borja, all of which
require adherence to those policies. Plaintiff has not provided us with any
authority in this State supporting a third-party beneficiary theory in a medical
malpractice context, and we are aware of none.
Moreover, even were we convinced a third-party beneficiary theory
made sense in the context of a medical malpractice action, which we are not,
plaintiff did not establish the claim on the summary judgment record. As the
Court explained in Broadway Maintenance Corp. v. Rutgers, State University,
90 N.J. 253, 259 (1982), "[t]he principle that determines the existence of
a third party beneficiary status focuses on whether the parties to the contract
intended others to benefit from the existence of the contract, or whether the
benefit so derived arises merely as an unintended incident of the agreement."
In other words, "the real test is whether the contracting parties intended
that a third party should receive a benefit which might be enforced in the
courts." Ibid. (quoting Bor. of Brooklawn v. Brooklawn Hous. Corp., 124
N.J.L. 73, 77 (E. & A. 1940)). Although that common law principle has long
been codified by statute, see N.J.S.A. 2A:15-2, neither the common law nor
the statute goes "so far as to permit a suit upon contract to be maintained by
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persons with whom the defendant never meant to enter into contractual
relations." Brooklawn, 124 N.J.L. at 76 (quoting Styles v. F. R. Long Co., 70
N.J.L. 301, 305 (E. & A. 1904)). "If there is no intent to recognize the third
party's right to contract performance, 'then the third person is only an
incidental beneficiary, having no contractual standing.'" Ross v. Lowitz, 222
N.J. 494, 513 (2015) (quoting Broadway Maint., 90 N.J. at 259).
Divining the intent of a contract is ordinarily a question of law, Bosshard
v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001),
making "[c]ases involving contract interpretations . . . particularly suited to
disposition by summary judgment," CSFB 2001-CP-4 Princeton Park Corp.
Ctr., LLC v. SB Rental I, LLC, 410 N.J. Super. 114, 119 (App. Div. 2009).
"Absent ambiguity, the intention of the parties is to be ascertained by the
language of the contract." Id. at 120. "If the language is plain and capable of
legal construction, the language alone must determine the agreement's force
and effect." Ibid. (quoting FDIC v. Prince George Corp., 58 F.3d 1041, 1046
(4th Cir.1995)).
Here, a review of the unambiguous language of the three contracts,
provided as part of a confidential appendix, reveals no expressed intent on the
part of the parties to those contracts, JFK, Middlesex, Joshi and Borja, to
permit a patient such as plaintiff to sue to enforce the contracts' terms.
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Underscoring that point, plaintiff has not directed us to any language in the
contracts — beyond that obligating defendants to supply emergency services
consistent with JFK's policies, State law and applicable national standards —
supporting his third-party beneficiary claim. 4 See Broadway Maint., 90 N.J. at
262 (noting language in a multi-prime construction contract binding each
contractor "to pay the damages of a fellow prime contractor is strong evidence
that the injured prime contractor is an intended beneficiary who may enforce
that promise").
There is no question but that the contracts obligated Middlesex, Joshi
and Borja to render services in accordance with JFK's applicable bylaws,
4
For example, plaintiff alleges he was harmed by Middlesex's breach of its
contractual obligation to
cause physicians to make complete and appropriate
medical record entries concerning any and all
professional services rendered to any patient within
the most stringent of those time limits imposed by
law, the JFK Medical/Dental Staff Bylaws, the JFK
Medical/Dental Staff's Rules and Regulations, or any
JFK Policy of which the physician has received prior
written notice, as the same may from time to time be
in effect.
Although one can easily grasp that timely chart entries promote better patient
care, plaintiff does not explain what it is about that language — or any
language in the agreement — that evidences an intent by JFK and Middlesex to
permit a patient to sue to enforce Middlesex's obligation to require physicians
to make timely chart entries.
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policies, rules and requests. That those policies are intended to — and likely
do — promote patient care is also not to be doubted. But that only establishes
patients of JFK as incidental beneficiaries; it is not enough to make those
patients, including plaintiff, intended third-party beneficiaries of the contracts
with the right to sue to enforce them. See Brooklawn, 124 N.J.L. at 76 ("'It is
not enough that the plaintiff may be benefited by the performance of the
contract. He can only maintain the action when the contract is made for
him.'") (quoting Styles, 70 N.J.L. at 305); Styles v. F. R. Long Co., 67 N.J.L.
413, 414-21 (Sup. Ct. 1902) (holding the plaintiff injured on a poorly lighted
footbridge could not sue the construction company for breach of its contract
with the county to maintain a bridge for the accommodation of pedestrians
with sufficient light so as to make it reasonably safe for public travel because
action for breach of the contract "is not extended to third parties who ,
indirectly and incidentally, would be advantaged by its performance"). What
is missing is any indication the contracting parties intended a patient treated in
JFK's emergency room would have the right to sue to enforce those obligations
imposed by the contracts.
None of the agreements purports to confer any rights on any third party.
Each explicitly identifies its intended beneficiaries by stating it binds and
inures to the benefit of the parties, their respective successors and any
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permitted assigns, with Middlesex's agreement with Joshi further stating the
agreement "is intended solely for the benefit of the parties" and that "[a]ll
other parties, named or unnamed, shall have no rights or remedies . . . except
as expressly otherwise agreed by the parties." Middlesex's agreement with
Borja goes even further. Under the heading "No Third Party Beneficiaries,"
the agreement states: "[n]othing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns."
There is simply nothing in these contracts to suggest the contracting
parties intended to create third-party rights in anyone; and clear language in
Middlesex's agreements with Joshi and Borja expressly negates any intent to
do so. See Broadway Maint., 90 N.J. at 260 (acknowledging the parties to a
contract are free to "expressly negate any legally enforceable right in a third
party"). While plaintiff and the trial court dismissed the language
"portend[ing] to instruct that the rights and obligations to be performed under
those agreements were not intended to confer any rights upon third parties " as
"self-serving," that is hardly an indictment considering the contracting parties
clearly intended agreements designed to serve only their own interests and n o
one else's. As the Court in Brooklawn explained, it is the contracting parties,
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who are, after all, "the persons who agree upon the promises, the covenants,
the guarantees; they are the persons who create the rights and obligations
which flow from the contract." 124 N.J.L. at 76-77. It is their intent, clearly
expressed in the language of the agreement — whether self-serving or not —
that controls.
Plaintiff's new claim on appeal, inspired by comments of the trial judge,
that Middlesex's agreement with Borja expressly eschewing any third-party
rights in the contract "arguably violated public policy" is without sufficient
merit to warrant discussion in a written opinion. 5 See R. 2:11-3(e)(1)(E).
Although our courts will not enforce a contract that is unlawful or violates
public policy, Vasquez v. Glassboro Serv. Ass'n Inc., 83 N.J. 86, 98-99 (1980),
there is nothing unlawful in contracting parties drafting an agreement so as to
negate any legally enforceable rights in third-parties, Broadway Maint., 90
N.J. at 260, and plaintiff has not identified any public policy that would be
violated by Middlesex's contract with Borja. Accordingly, we will not
consider the claim further.
5
In rejecting defendants' arguments on plaintiff's third-party beneficiary
claim, the judge remarked "[i]t would be almost tantamount to . . . being
unconscionable to find that patients treated in a hospital setting were not the
beneficiaries of agreements that are entered into by a hospital and its
healthcare providers." The judge said "[t]hat would seem to violate public
policy as a general proposition," although making clear he did not "find that as
a matter of law."
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Because the terms of the contracts are clear and unambiguous and offer
no support for plaintiff's claim that he was an intended third-party beneficiary
of the three agreements on which he sued, and there is nothing in the policies
themselves to support his novel theory that he could sue the hospital for its
alleged violation of its own policies as an intended third-party beneficiary, the
court erred as a matter of law in finding the agreements ambiguous and
denying defendants summary judgment dismissing counts nine through
thirteen, as well as count fifteen (alleging defendants' vicarious liability for
any contractual breaches or policy violations) of the third amended complaint.
If breach of contract claims in medical malpractice actions are rare,
negligence per se claims are virtually non-existent. But see Di Giovanni v.
Pessel, 104 N.J. Super. 550, 563 (App. Div. 1969) (violation of statutory
standard of conduct mandating physician who certifies a person's insanity for
purpose of involuntary commitment do so only on the basis of a personal
examination is proof of deviation and negligence), aff'd in part and rev'd in
part on other grounds, 55 N.J. 188 (1970).
Negligence per se is not often invoked in New Jersey generally because
its application is so narrow. Braitman v. Overlook Terrace Corp., 68 N.J. 368,
385 (1975) (noting "[i]n this State the violation of a statutory duty of care is
not conclusive on the issue of negligence in a civil action"). As the Court
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explained in Eaton v. Eaton, "[o]rdinarily, the determination that a party has
violated 'a statutory duty of care is not conclusive on the issue of negligence, it
is a circumstance which the jury should consider in assessing liability.'" 6 119
N.J. 628, 642 (1990) (quoting Waterson v. Gen. Motors Corp., 111 N.J. 238,
263 (1988)). The reason for our rule is that "statutes rarely define a standard
of conduct in the language of common-law negligence. Hence, proof of a bare
violation of a statutory duty ordinarily is not the same as proof of negligence."
Ibid.Thus, the only occasion for application of negligence per se in New
Jersey is in "the exceptional situation," Horbal v. McNeil, 66 N.J. 99, 105 n.1
(1974), where a statute specifically incorporates a common law standard of
care, as, for example, N.J.S.A. 39:4-97, the careless driving statute, which by
its "plain language . . . prohibits negligent driving." Eaton, 119 N.J. at 643.
"Proof of the violation of the statute" in that circumstance, "is proof of
6
The Restatement (Second) of Torts § 288B (1965) counts New Jersey among
the "small minority of the courts [that] have held that the violation of either a
statute or an ordinance is at most evidence of negligence, for the jury," citing
Evers v. Davis, 86 N.J.L. 196, 205 (E. & A. 1914) (holding the operation of
the "statute, in fine, is that the defendant's duty toward the plaintiff as affected
by such statute takes the place of what would have been his common-law duty
if such statute had not been enacted, leaving the action of negligence in other
respects unaffected"). The Third Restatement notes only "[a]bout a dozen
states conclude that violation of a statute is only some evidence of
negligence," including New Jersey. Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 14 Reporters' Note, comment c (2010).
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negligence itself." Ibid.; Torres v. Pabon, 225 N.J. 167, 187 (2016) (noting a
driver's conduct contravening a common law standard incorporated into the
motor vehicle code "is negligence and a jury should be so instructed") (quoting
Dolson v. Anastasio, 55 N.J. 2, 10 (1969)). As the Court reasoned in Eaton,
"[i]t would be inconsistent to find" a defendant had violated the careless
driving statute, "but that she had not been negligent."7 119 N.J. at 643.
That is not to say a factfinder must ignore a party's violation of a statute.
As we noted over sixty years ago, the general rule in this State is that "the
violation of a statute, while not negligence Per se, is evidence which may be
considered by a jury together with all of the evidence in determining issues of
negligence or contributory negligence." Mattero, 71 N.J. Super. at 9 (emphasis
added). We added the necessary caveat, however, that "this rule is subsumed
by the overriding principle that the statutory violation, to be evidential, must
be causally related to the happening of the accident, since a permissible
inference of causality is indispensable to its relevancy." Ibid.7
The Third Restatement suggests "the doctrine of negligence per se is largely
superfluous in ascertaining the actor's liability" in statutes "that duplicate the
common law," leading some courts to allow parties to argue negligence per se;
but others to more frequently reject the doctrine, "recognizing its redundancy
and appreciating that it does not serve its typical function of simplifying or
providing structure to the rendering of negligence determinations."
Restatement (Third) of Torts: Liab. for Phys. & Emot. Harm § 14 cmt. e.
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When the judge granted plaintiff's motion to add the negligence per se
claim in count fourteen of the third amended complaint, he quoted our
language in Mattero, but left out the critical portion emphasized above.8 That
omission led the judge to conclude, erroneously, that "[g]enerally, negligence
'per se' can be asserted when there is an alleged causal relationship between
the negligence and the violation of a statute or regulation." That is an
incorrect statement of our law. Negligence per se in New Jersey is limited to
the exceptional situation in which the Legislature has incorporated a common
law standard of care into a statute. In the usual case, violation of a statute is
only evidence of negligence, and only if the statutory violation was "causally
8
In finding plaintiff had sufficiently pled a cognizable claim for negligence
per se, the judge wrote:
The violation of a statute or regulation 'may be
considered by a jury together with all of the evidence
in determining issues of negligence[,]' and this
proposition is 'subsumed by the overriding principle
that the . . . statutory violation, to be evidential, must
be causally related to the happening of the accident[.]'
Mattero v. Silverman, 71 N.J. Super. 1, 9 (App. Div.
1961), certif. denied, 36 N.J. 305 (1962). Generally,
negligence 'per se' can be asserted when there is an
alleged causal relationship between the negligence and
the violation of a statute or regulation.
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related to the happening of the accident."9 Ibid. From this, it's plain the
judge's conclusion that plaintiff Labega could plead a cause of action for
negligence per se based on "an alleged causal relationship between the
negligence and the violation of a statute or regulation" was clear error.10
9
If the statutory violation did not cause or contribute to the happening of the
accident, it is irrelevant and should be excluded from the evidence. Mattero,
71 N.J. Super. at 9 (explaining "the trial judge, being the exclusive arbiter of
the relevancy of evidence, must initially determine in the particular
circumstances of the case whether or not a jury could reasonably infer that the
[statutory violation] caused or contributed to the happening of the accident").
In Mattero, we reversed a no cause verdict based on the trial judge's error in
admitting evidence that the plaintiff was illegally driving on a learner's permit
at the time of the accident, finding that evidence "irrelevant to the issue of
proximate cause and inadmissible." Id. at 10.
10
Confusion in attempting to apply the doctrine of negligence per se is
apparently not uncommon. See Robert F. Blomquist, The Trouble with
Negligence Per Se, 61 S.C. L. Rev. 221, 260 (2009) (observing "many
American courts continue to struggle with negligence per se principles"). One
commentator, recommending the doctrine be abandoned based on its "shaky
theoretical foundations" and "difficult and unnecessary problems of
implementation, miring courts and litigants in an increasingly complex,
muddled, and ultimately useless doctrinal morass," argues "[a]n approach
simply permitting the fact-finder to assess the defendant's violation of statute
as one factor in determining negligence" — as our courts do — "would lead to
better outcomes in cases and more efficient use of court resources." Barry L.
Johnson, Why Negligence Per Se Should Be Abandoned, 20 N.Y.U. J. Legis.
& Pub. Pol'y 247, 249 (2017). See Alloway v. Bradlees, Inc., 157 N.J. 221,
228, 235-36 (1999) (Justice Handler explaining in a workplace safety action
that "while it is feasible to make liability turn on the violation of an OSHA
regulation, a sounder approach accords the violation relevance, but not
dispositive weight," particularly as "the common law provides ample remedial
relief that is flexible and adaptive of changing circumstances.").
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There was, of course, a second, and perhaps even more fundamental
error, which also emanated from the judge's grant of the motion to amend. As
we noted, when the judge allowed plaintiff to add the negligence per se claim
in count fourteen of the third amended complaint, he mistakenly analyzed the
allegations contained in count eight of plaintiff's second amended complaint
alleging Joshi's vicarious liability for Borja's care of plaintiff under the
Physician Assistant Licensing Act, N.J.S.A. 45:9-27.10 to -27.28 and its
implementing regulations. Plaintiff's negligence per se claim in count
fourteen, however, is not premised on defendants' violation of a statute or
regulation but, instead, on defendants' breaches of the "[p]olicies, procedures,
protocols and guidelines for patient care in JFK's emergency department,"
which plaintiff alleges "violate standards of care of professional practice that
govern and guide patient care at JFK's emergency department." On the
summary judgment motion, the judge extended his error by finding plaintiff
had established a prima facie cause of action for negligence per se based on
defendants' alleged breach of hospital policy. Not so.
Plaintiff has not cited any case to support his claimed cause of action
that defendants' breaches of JFK's "policies, procedures, protocols and
guidelines" could constitute negligence per se in this State, and we are
confident none exists. Even the more liberal application of negligence per se
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represented by the Restatement is limited to violation of statutes or other
governmental enactments; negligence per se has no applicability to a violation
of a standard issued by a private, non-governmental entity such as JFK. See
Restatement (Second) of Torts, § 288B (1965) ("The unexcused violation of a
legislative enactment or an administrative regulation which is adopted by the
court as defining the standard of conduct of a reasonable man, is negligence in
itself.") (emphasis added).11
In addition, this is a medical malpractice action. Except in the rare case
in which the standard of care is common knowledge, Sanzari v. Rosenfeld, 34
N.J. 128, 141-42 (1961), a plaintiff attempting to prove medical malpractice
"'must present expert testimony establishing (1) the applicable standard of
care; (2) a deviation from that standard of care; and (3) that the deviation
proximately caused the injury.'" Nicholas v. Mynster, 213 N.J. 463, 478
11
The Third Restatement defines negligence per se similarly: "An actor is
negligent if, without excuse, the actor violates a statute that is designed to
protect against the type of accident the actor's conduct causes, and if the
accident victim is within the class of persons the statute is designed to
protect." Restatement (Third) of Torts: Liab. for Phys. & Emot. Harm § 14
(emphasis added). Although a comment to that section states it "equally
applies to regulations adopted by state administrative bodies, ordinances
adopted by local councils, and federal statutes as well as regulations
promulgated by federal agencies," id. at § 14 comment a, a comment to section
13, makes clear an actor's compliance with "a standard issued by a private
organization . . . does not call into play the rules relating to violation of and
compliance with public enactments, set forth in §§ 14- 16," i.e., those sections
treating negligence per se, id. at § 13, comment e.
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(2013) (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)). Permitting a
factfinder to treat a health care provider's violation of hospital policy as a per
se breach of the standard of care runs counter to the entire thrust of our case
law in this area.12 See Morlino v. Med. Ctr. of Ocean Cty., 152 N.J. 563, 579-
82 (1998) (holding warnings in drug package insert and the Physicians' Desk
Reference, "[a]lthough admissible along with expert testimony on the issue of
the standard of care, . . . are not conclusive evidence of the standard of care or
accepted practice in using the drug" and thus "do not, as a matter of law,
establish the standard of care or negligence"); Cast Art Indus., LLC v. KPMG
LLP, 416 N.J. Super. 76, 106 (App. Div. 2010) (holding in an accounting
malpractice action that "[a] defendant's 'internal policies — standing alone —
cannot demonstrate the applicable standard of care'") (quoting Briggs v. Wash.
Metro. Area Transit Auth., 481 F.3d 839, 848 (D.C. Cir. 2007)), rev'd on other
grounds, 209 N.J. 208 (2012); Johnson v. Mountainside Hosp., 239 N.J. Super.
312, 324 (App. Div. 1990) (finding no error in court's refusal to allow hospital
bylaw or accreditation standard to serve as standard of care for physician
12
Plaintiff's counsel made clear at oral argument that he was asking us to
extend the common law to allow him to prove malpractice based on the
violation of hospital policy incorporated into the hospital's agreements with the
third-party practices staffing the hospital's departments and those practices'
agreements with the health care providers working in the hospital, without an
expert. We decline to do so.
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without "foundation evidence" it represented legal standard for determining
whether the defendant doctors committed malpractice).
Because defendants' alleged violation of hospital policy is not
negligence per se as a matter of law, the judge erred in denying their motions
for partial summary judgment on count fourteen of the third amended
complaint. On remand, plaintiff will be limited to proving negligence in
accordance with the Court's controlling precedents of Nicholas and Morlino.
We reverse the trial court's June 1, 2021 orders denying partial summary
judgment to defendants on counts nine through fifteen of the third amended
complaint and remand for entry of orders granting partial summary judgment
to defendants on those counts. We do not retain jurisdiction.
Reversed and remanded.
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