Jari Almonte v. Township of Union ( 2024 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2968-22
    JARI ALMONTE and YAHAIRA
    ALMANZAR, individually and
    as parents and natural guardians
    of Jeremy Almonte, an infant,
    Plaintiffs-Appellants,
    v.
    TOWNSHIP OF UNION,
    TOWNSHIP OF UNION FIRE
    DEPARTMENT, and TOWNSHIP
    OF UNION VOLUNTEER
    AMBULANCE SQUAD,
    Defendants,
    and
    ATLANTIC AMBULANCE
    CORPORATION, UNION EMERGENCY
    MEDICAL UNIT, DANIEL PERNELL,
    DENYEL CUSIMANO, R. IUNGERMAN,
    "JOHN" BIEDRZYCKI, NITI SHARMA, M.D.,
    and OVERLOOK MEDICAL CENTER,
    Defendants-Respondents.
    _______________________________________
    Argued October 22, 2024 – Decided November 18, 2024
    Before Judges Smith and Vanek.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Docket No. L-3994-18.
    Hugh M. Turk argued the cause for appellants (Sullivan
    Papain Block McGrath Coffinas & Cannavo, PC,
    attorneys; Hugh M. Turk, on the briefs).
    Lauren E. Aguiar (Skadden, Arps, Slate, Meagher &
    Flom, LLP) of the New York bar, admitted pro hac vice,
    argued the cause for respondents Atlantic Ambulance
    Corporation, David Pernell, improperly pled as Daniel
    Parnell, Denyel Cusimano, and AHS Hospital Corp.
    d/b/a Overlook Medical Center, improperly pled as
    Overlook Medical Center (Connell Foley, LLP, Lauren
    E. Aguiar and Andrew Muscato (Skadden, Arps, Slate,
    Meagher & Flom LLP) attorneys; Jeffrey W. Moryan,
    Susan Kwiatkowski and Lauren E. Aguiar, of counsel
    and on the briefs; Andrew Muscato, on the briefs).
    PER CURIAM
    Plaintiffs, Jari Almonte and Yahaira Almanzar, individually and as
    parents and guardians of Jeremy Almonte, appeal from the motion court's order
    granting defendants' motion for summary judgment. Jeremy was a 21 -month-
    old toddler when he fell while playing and hit his head. After the fall, he began
    seizing and vomiting fluid. He was taken to the hospital by an advanced life
    support (ALS) crew consisting of paramedics.
    A-2968-22
    2
    En route to the hospital, Jeremy had difficulty breathing. After getting
    authorization from their medical command physician to do so, the paramedics
    made three attempts to intubate the child, with the third, partially successful
    attempt taking place in the hospital parking lot. Shortly after the paramedics
    brought Jeremy into the emergency room, he suffered a cardiac arrest.
    Emergency medical personnel revived him, but he suffered serious and
    permanent brain injury.
    Plaintiffs sued several defendants, 1 including the paramedics and their
    employer, claiming that they deviated from their standard of care while treating
    Jeremy, causing his injury. Plaintiffs' main contention was that the paramedics
    improperly decided to keep Jeremy in the ambulance to make an additional
    intubation attempt rather than immediately take him into the emergency room
    where he could receive more sophisticated care.
    After discovery, defendants moved for summary judgment, arguing they
    were immune from civil liability pursuant to N.J.S.A. 26:2K-14, which shields
    1
    Plaintiffs voluntarily dismissed their complaint against defendants Union
    Township and the Union Township Fire Department on March 14, 2019.
    Defendant Union Township Volunteer Ambulance Squad was dismissed from
    the litigation for lack of prosecution on June 7, 2019. Defendant AHS Hospital
    Corp./Overlook Hospital, improperly pled as Overlook Hospital, was granted
    summary judgment by the trial court on April 26, 2023. That order is not on
    appeal before us.
    A-2968-22
    3
    paramedics from damages "as the result of an act or the omission of an act
    committed while in training for or in the rendering of basic and advanced life
    support services in good faith and in accordance with this act."
    The trial court granted defendants' motion and dismissed plaintiffs'
    complaint. Plaintiffs appeal, contending the paramedics: did not provide their
    services in good faith; did not provide advanced life support services; and did
    not provide ALS services in accordance with the Emergency Medical Services
    Act. Finally, they argue defendants were grossly negligent in their care of
    Jeremy. We affirm.
    I.
    A.
    On August 18, 2012, Jeremy Almonte, a 21-month-old child, was playing
    at home when he fell on a hardwood floor, hit his head, and began seizing.
    Jeremy's mother immediately called 9-1-1, and an ambulance was dispatched.
    Basic life support (BLS) team members R. Iungerman and John Biedrzycki from
    the Union Township Volunteer Ambulance Corps arrived at the home by 9:00
    p.m. They found Jeremy unresponsive and actively seizing but breathing on his
    own. They began administering oxygen, suctioning fluid from his airway, and
    loaded Jeremy into the ambulance.
    A-2968-22
    4
    Defendants David Pernell and Denyel Cusimano, an ALS team from
    Atlantic Ambulance Corporation, arrived at 9:10 p.m. and took over Jeremy's
    care. Their initial assessment found Jeremy unresponsive with cool extremities
    and labored breathing, actively seizing, and being suctioned by the BLS team as
    he was vomiting large amounts of fluid. Jeremy's jaw was clenched shut.
    Pernell started an IV, and at 9:17 p.m. he contacted the medical command
    physician, Dr. Niti Sharma. Pernell relayed the team's assessment of Jeremy to
    Dr. Sharma, who ordered one milligram of an anticonvulsant for the seizures
    and authorized a second dose if necessary. Pernell also requested authorization
    to intubate in case it became necessary, which Dr. Sharma granted. Pernell
    administered the second one milligram dose of anticonvulsant at 9:19 p.m., and
    the ambulance left for University Hospital at 9:23 p.m. Jeremy's mouth partially
    opened at approximately 9:28 p.m. Cusimano was able to insert an oral airway,
    and the team suctioned large amounts of fluid from Jeremy's oral and nasal
    airways while performing ventilation via a bag-valve mask.
    At 9:29 p.m., the paramedics' notes reflect that Jeremy's respiratory drive
    had decreased.    At 9:30 p.m., Pernell contacted Medical Command and
    requested authorization to intubate. Dr. Sharma authorized intubation via rapid
    A-2968-22
    5
    sequence intubation (RSI), in which certain medications 2 are administered to
    paralyze the patient's facial muscles so the paramedics could complete
    intubation. Pernell administered the RSI medications at 9:34 p.m., and at 9:35
    p.m. Cusimano unsuccessfully attempted to intubate Jeremy. The paramedics
    continued to suction and ventilate the child using the bag valve mask.
    The record shows the ambulance arrived at the hospital at 9:37 p.m.
    Cusimano made a second unsuccessful attempt to intubate Jeremy at 9:38 p.m.
    The paramedics found Jeremy's airway was still "completely full of fluid."
    Pernell testified at his deposition that when they pulled into the parking lot, they
    realized Jeremy still needed intubation, and "the decision was made to stop,
    secure his airway, and then proceed into the emergency room."
    Pernell explained:
    [I]t would have been like . . . we have to reintubate him
    because he's already got medications[,] and his heart
    rate is starting to drop and his oxygen saturation is no
    good. We have to intubate him and it's easier to do it
    now than to move with him without the airway in place
    at all. It would have been reckless to move without it.
    In her deposition, Cusimano echoed Pernell's reasoning, explaining they
    wanted to intubate Jeremy before moving him because:
    2
    The medications which the paramedics administered to Jeremy to perform
    intubation were Etomidate and Succinylcholine.
    A-2968-22
    6
    [B]y the time you get equipment moved over and IV
    bag down and the stretcher out of the ambulance and
    walk down the hall . . . it's a minute and a half, almost
    two minutes before you are transferring care, so that's
    another minute and a half to two minutes with no
    oxygen. [We] would rather take the [forty-five]
    seconds and both of us work on him together,
    suctioning and intubating at the same time and get him
    a good airway.
    At 9:42 p.m., Pernell was successful on the third intubation attempt. In
    her deposition, Cusimano testified that she understood medical command's
    authorization to intubate allowed paramedics to attempt multiple intubations, if
    necessary, without additional authorization for each attempt.        Dr. Sharma
    testified that when she authorized intubation she "was not thinking about how
    many attempts they were going to have."
    Pernell testified that they stayed in the ambulance getting ready to move
    Jeremy until 9:45 p.m. At roughly 9:45, Jeremy's heartrate dropped, and the
    paramedics began chest compressions. While Jeremy was transferred to the care
    of the hospital, he suffered a cardiac arrest for nine minutes during which he had
    no oxygen circulation, resulting in severe anoxic brain damage secondary to the
    cardio-pulmonary arrest. Jeremy was reintubated after he entered the hospital
    because there were "questions with position of the ET tube."
    A-2968-22
    7
    The parties each retained experts. Plaintiffs' expert, Dr. Kevin Brown
    M.D., a physician who was board certified in emergency medicine, identified
    several deviations from the standard of care for ALS paramedics. They included
    but were not limited to the paramedics':        decision to keep Jeremy in the
    ambulance to make second and third intubation attempts rather than bringing
    him into the hospital immediately; failure to contact Dr. Sharma to update her
    on Jeremy's second failed intubation and his deteriorating condition; and the
    paramedics' failure to address Jeremy's unstable heart rhythm, bradycardia, and
    pulseless electrical activity by giving him timely and proper medications. Dr.
    Brown wrote the "failure to immediately bring Jeremy inside the [emergency
    room] deprived [him] of sophisticated medical care that was at most a few
    hundred feet away." Dr. Brown also opined the paramedics did not maintain
    sufficient contact with medical command, and that they should have called to
    report Jeremy's condition after 9:37 as he began to deteriorate.
    Defendants' expert, Dr. Peter C. Benson, was a physician with double-
    board certification in emergency medicine and emergency medical services. He
    stated that:
    based on Jeremy's extremely critical condition it would
    be reasonable to attempt to stabilize him before
    removing him from the ambulance as he is so critical
    A-2968-22
    8
    that moving him out of the ambulance might cause him
    to further decompensate.
    This concept is increasingly being taught in EMS
    courses, and [it] recognizes that moving an extremely
    critical patient from the ambulance into the Emergency
    Department is enough to result in cardiac arrest and
    death.
    As a result of this concept, it is not uncommon for EMS
    crews to arrive to a hospital and continue attending to
    the patient in the ambulance bay for 5-10 minutes while
    they attempt to further stabilize or "optimize” the
    patient.
    Defendants also submitted the expert report of Michael D'Ambrosio, DO,
    a physician double-board certified in emergency medicine and neurology &
    vascular neurology. Dr. D'Ambrosio did not agree "that the paramedics deviated
    from the [standard of care] at any time in any of their actions."
    B.
    Plaintiffs filed their complaint on November 21, 2018, naming as
    defendants: the Township of Union; the Township of Union Fire Department;
    the Township of Union Volunteer Ambulance Squad; Atlantic Ambulance
    Corp.; the Union Emergency Medical Unit, and several "John Does" and "ABC
    Companies." The complaint alleged Jeremy suffered permanent brain damage
    due to negligent, careless, reckless, willful, and wanton conduct by defendants.
    A-2968-22
    9
    On March 14, 2019, plaintiffs dismissed their claims without prejudice against
    the Union, the Union Township Fire Dept., and the Union Township Volunteer
    Ambulance Squad.
    Defendant Atlantic Ambulance answered on April 1, 2019. After being
    granted leave, plaintiffs filed an amended complaint on March 11, 2020, adding
    as defendants: the BLS team (R. Iungerman and “John” Biedrzycki); the ALS
    team (David Pernell and Denyel Cusimano); Niti Sharma, M.D. the medical
    command physician on duty on the night in question; and her employer,
    AHS/Overlook Hospital.      In their answers, defendants Pernell, Cusimano,
    Atlantic Ambulance, and AHS/Overlook each raised affirmative defenses,
    including "all statutory immunities" that may be applicable.
    On February 24, 2022, the parties stipulated to the dismissal of Union
    Emergency, Robyn Iungerman, John Biedrzycki, and Niti Sharma, M.D. as
    defendants. The remaining defendants were paramedics Pernell and Cusimano,
    their employer Atlantic Ambulance, and AHS/Overlook Hospital.
    After discovery, plaintiffs moved to strike the immunity defense.
    Defendants Pernell, Cusimano, and Atlantic Ambulance cross-moved for
    summary judgement on the grounds of paramedic immunity under N.J.S.A.
    26:2K-14 and 29. The court granted defendants' motion for summary judgment,
    A-2968-22
    10
    making findings.3 Citing Frields v. St. Joseph's Hosp. & Med. Ctr., 
    305 N.J. Super. 244
     (App. Div. 1997), the court found the paramedics were entitled to
    immunity under N.J.S.A. 26:2K-14 because "there are no facts considered in the
    light most favorable to [p]laintiffs that would support the argument that in
    attending to Jeremy's emergency needs, the paramedics acted in anything but
    good faith." The court found summary judgment appropriate when the actions
    of the paramedics were either "objectively reasonable" or performed with
    subjective good faith. The court stated, "even if reasonable minds could differ
    as to whether the actions taken by the paramedics were objectively reasonable,
    the court finds that the record establishes that the actions were undoubtedly
    performed with subjective good faith and that is enough to afford the paramedics
    immunity." The court also found the paramedics acted in accordance with the
    statute.
    On appeal, plaintiffs argue that the paramedics:        failed to provide
    advanced life support services; failed to provide advanced life support services
    in good faith; and failed to provide advanced life support services in accordance
    3
    Defendant AHS Hospital Corp./Overlook Hospital, improperly pled as
    Overlook Hospital, was granted summary judgment in its favor by the trial court
    on April 26, 2023. That order is not on appeal before us.
    A-2968-22
    11
    with the statute.   Finally, plaintiffs allege defendants were not entitled to
    immunity because the paramedics' actions were grossly negligent.
    II.
    A.
    We review a trial court's summary judgment order de novo, applying the
    same standard used by the trial court. Samolyk v. Berthe, 
    251 N.J. 73
    , 78 (2022).
    Rule 4:46-2(c) provides that a motion for summary judgment must be granted
    "if 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." The court must "consider whether the competent
    evidential materials presented, when viewed in the light most favorable to the
    non-moving party, are sufficient to permit a rational factfinder to resolve the
    alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
    Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995).
    B.
    We review matters of statutory interpretation de novo.         Moschella v.
    Hackensack Meridian Jersey Shore Univ. Med. Ctr., 
    258 N.J. 110
    , 125 (2024).
    Our ultimate "task in statutory interpretation is to determine and effectuate the
    A-2968-22
    12
    Legislature's intent."   Bosland v. Warnock Dodge, Inc., 
    197 N.J. 543
    , 553
    (2009). Courts "look first to the plain language of the statute, seeking further
    guidance only to the extent that the Legislature's intent cannot be derived from
    the words that it has chosen." McGovern v. Rutgers, 
    211 N.J. 94
    , 108 (2012)
    (quoting Bosland, 
    197 N.J. at 553
    ). "The Legislature's intent is the paramount
    goal when interpreting a statute and, generally, the best indicator of that intent
    is the statutory language." DiProspero v. Penn, 
    183 N.J. 477
    , 492 (2005) (citing
    Frugis v. Bracigliano, 
    177 N.J. 250
    , 280 (2003)).         Thus, any analysis to
    determine legislative intent begins with the statute's plain language. Id. at 493.
    III.
    For the first time on appeal, plaintiffs contend the paramedics were not
    providing advanced life support services. They contend "the [paramedics']
    decision . . . to postpone Jeremy’s delivery to the ER [and] intubate first . . .
    occurred prior to the performance of [advanced life support] service in
    question." (emphasis added). Plaintiffs submit N.J.S.A. 26:2K-14 must be
    interpreted narrowly, and "immunity is granted only for negligence while
    performing an ALS service." (emphasis added).
    A-2968-22
    13
    "[A]ppellate courts will decline to consider questions or issues not
    properly presented to the trial court . . . 'unless the questions so raised on appeal
    go to the jurisdiction of the trial court or concern matters of great public
    interest.'" Fuhrman v. Mailander, 
    466 N.J. Super. 572
    , 596 (App. Div. 2021)
    (alteration and omission in original). Jurisdiction is not at issue, however we
    conclude that defining the scope of immunity under N.J.S.A. 26:2K-14 is a
    matter of public interest which warrants discussion here.
    We consider the language of the statute.         N.J.S.A. 26:2K-14 of the
    Emergency Medical Services Act (the Act)4 confers qualified immunity to
    certain classes of people who provide medical assistance to others. Frields, 
    305 N.J. Super. at 247
    . It states:
    No emergency medical technician, mobile intensive
    care paramedic, licensed physician, hospital or its
    board of trustees, officers and members of the medical
    staff, registered nurse, advanced practice nurse,
    physician assistant, or other employees of the hospital,
    first aid, ambulance or rescue squad, licensed
    emergency medical services agency, or officers and
    members of a first aid, ambulance or rescue squad shall
    be liable for any civil damages as the result of an act or
    the omission of an act committed while in training for
    or in the rendering of basic and advanced life support
    services in good faith and in accordance with this act.
    [N.J.S.A. 26:2K-14 (emphasis added).]
    4
    N.J.S.A. 26:2K-1 to -74.
    A-2968-22
    14
    The Act defines the term "advanced life support services" as "an advanced level
    of emergency medical care, including specialty care transport, which includes
    basic life support functions and the use of procedures, medications, and
    equipment . . . paramedics . . . ." N.J.S.A. 26:2K-7(a).
    We are unpersuaded by plaintiffs' attempt to isolate the decision to
    intubate from the act of intubation and argue that the decision itself falls outside
    the purview of the statute. Dr. Sharma, the medical command doctor, gave
    defendant paramedics authorization to intubate. After obtaining authorization,
    the paramedics' decision to intubate led directly to their act of intubation. We
    can safely say that the paramedics' act cannot exist without a corresponding
    decision in this context. We conclude that the paramedics' decision to intubate
    falls squarely within the meaning of "rendering . . . advanced life support
    services." N.J.S.A. 26:2K-14. We find no error here.
    We next consider plaintiffs' argument that the paramedics did not provide
    their services "in good faith," and that we should evaluate their actions using an
    objective standard.
    "'Good faith' has been defined as 'honesty of purpose and integrity of
    conduct without knowledge, either actual or sufficient to demand inquiry, that
    the conduct is wrong.'" Frields, 
    305 N.J. Super. at 248
    . "Summary judgment .
    A-2968-22
    15
    . . is appropriate when the employee demonstrates that [their] actions 'were
    objectively reasonable or that [he] performed them with subjective good faith.'"
    
    Ibid.
     (quoting Canico v. Hurtado, 
    144 N.J. 361
    , 365 (1996)).
    The trial court, applying Frields to the record, found the paramedics met
    their burden by showing they acted with subjective good faith pursuant to
    N.J.S.A. 26:2K-14.
    We agree with Judge Alan G. Lesnewich's cogent and thorough analysis
    on the question, and we find it helpful to quote from Judge Lesnewich's
    statement of reasons:
    [Frields] clearly recognizes that even a mobile
    intensive care paramedic who acted negligently is
    entitled to qualified immunity, if he acted with
    subjective good faith or in a reasonably objective
    manner. Protection under the statute does not require
    flawless action. Nor does error deprive paramedics of
    immunity. Frields, 
    305 N.J. Super. at 248
     (citation
    omitted). In this case there are no facts in the record
    that suggest that paramedics did not perform with good
    faith when treating Jeremy and transporting him to the
    hospital.
    Finding that the paramedics acted in good faith, the trial court did not
    reach the issue of whether their actions were objectively reasonable.
    Plaintiffs argue subjective good faith should not be the standard. They
    contend that Frields and Murray v. Plainfield Rescue Squad, 418 N.J. Super 574
    A-2968-22
    16
    (App. Div. 2011), rev'd on other grounds, 
    210 N.J. 581
     (2012), which
    rearticulated the dual subjective/objective standard for immunity, 5 were wrongly
    decided. Plaintiffs urge us to "review the law pertaining to 'good faith' and bar
    the use of subjective good faith as a basis for paramedic immunity under
    N.J.S.A. 26:2K-14 and 29."
    Frields adopted the objective/subjective standard from Canico. Canico
    considered whether a police officer was acting in good faith and therefore
    entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:3-3.
    
    144 N.J. at 362
    . Murray then adopted the interpretation used in Frields, adding
    "we consider it reasonable to look to the interpretation of [good faith] as it is
    used in describing the qualified immunity of public employees under N.J.S.A.
    59:3-3." 418 N.J. Super. at 586.
    Plaintiffs argue that we should interpret the qualified immunity for
    advanced life support paramedics under N.J.S.A. 26:2K-14 more narrowly than
    we interpreted the Tort Claims Act immunity in Frields and Murray. They cite
    5
    Murray and Frields both considered immunity claims under N.J.S.A. 26:2K-
    29, which provides immunity to EMT intermediates. The language of N.J.S.A.
    26:2K-29 is nearly identical to that of N.J.S.A. 26:2K-14, except that it applies
    to a slightly different class of emergency personnel and immunizes
    "intermediate life support services," rather than "advanced life support
    services."
    A-2968-22
    17
    De Tarquino v. City of Jersey City, 
    352 N.J. Super. 450
     (App. Div. 2002), in
    support of their proposition that principles of statutory construction and public
    policy call for "a more circumscribed reading" of the statute. We disagree.
    In that matter, decedent, Tarquino, was transported to the hospital by
    paramedics after being assaulted by a police officer. 
    Id. at 452
    . The paramedics
    omitted vital information in their written report, the "run sheet," which would
    have revealed symptoms of severe brain trauma. 
    Id. at 452-53
    . The De Tarquino
    paramedics also placed misleading and incorrect data in the report. 
    Id. at 453
    .
    After being prematurely released from the hospital, based in part on the false
    and misleading report of the paramedics, Tarquino later died from severe brain
    trauma. 
    Ibid.
    Judge Skilman wrote:
    All of the statutes providing qualified immunity for
    negligence in the rendering of emergency medical
    services are in derogation of common law negligence
    principles. "Where a statute alters the common law, the
    most circumscribed reading of it that achieves its
    purpose is the one that should be adopted." Application
    of this principle to statutes that confer immunity for
    negligence in rendering emergency medical services
    furthers this State's "tradition of giving 'narrow range'
    to statutes granting immunity from tort liability because
    they leave 'unredressed injury and loss resulting from
    wrongful conduct.'"
    [Id. at 455-56 (citations omitted).]
    A-2968-22
    18
    We concluded in De Tarquino that the paramedics' act of completing a run
    sheet did not fall within the scope of intermediate life support services for three
    reasons: first, completing a report did not require the same level of skill as
    administering medical care; second, filling out a report was not related to the
    paramedics' treatment plan; and finally, the run sheet was for the hospital staff's
    use in administering care. We held the paramedics were not entitled to immunity
    for negligence in completing a run sheet. 
    Id. at 456
    .
    De Tarquino is easily reconcilable with the record before us. The record
    before us describes the chaotic and pressure-packed events which took place
    between the paramedics' arrival at Jeremy's home and his eventual cardiac arrest
    in the hospital that night. The record from plaintiffs’ perspective also shows
    the paramedics were not "flawless." That said, they were not engaged in the
    ministerial act of filling out a run sheet, nor did they omit vital data from their
    reports or mislead hospital personnel. The record shows that, at all relevant
    times, the paramedics were performing advanced life support services consistent
    with the statute.
    In our view, the plain text of N.J.S.A. 26:2K-14, which immunizes acts
    taken by paramedics while rendering advanced life support services "in good
    faith," favors a subjective definition rather than a definition reliant on "objective
    A-2968-22
    19
    reasonableness," a phrase which does not appear in the statute.          We are
    unconvinced that sound public policy warrants the narrow construction of
    N.J.S.A. 26:2K-14.     Plaintiffs suggest the Legislature elected to condition
    immunity under both the Emergency Services Act and the Tort Claims Act on
    "good faith." The rationale for granting qualified immunity under either statute
    is the same, as neither police officers nor EMTs and paramedics should be
    "inhibited in performing [their duties] by fear of tort liability" when responding
    to emergencies. De Tarquino, 
    352 N.J. Super. at 456
    . We decline plaintiffs'
    invitation to construe first responder immunity more narrowly under the
    Emergency Services Act than under the Tort Claims Act.
    Plaintiffs' third argument is that the paramedics failed to provide advanced
    life support services in accordance with N.J.S.A. 26:2K-14 and its
    corresponding regulations through a lack of proper voice communication with
    medical command and making additional intubation attempts rather than
    transport Jeremy into the ER. Plaintiffs submit that the Act and its regulations
    required the paramedics to call medical command when Jeremy's medical status,
    including his oxygen levels, took a turn for the worse during the ride to the
    hospital.
    A-2968-22
    20
    N.J.S.A. 26:2K-10 authorizes paramedics to perform advanced life
    support services, "if the paramedic maintains direct voice communication with
    and is taking orders from a licensed physician or physician directed registered
    professional nurse . . . ."
    Here, the trial court properly found that the paramedics performed
    advanced life support services on Jeremy in accordance with the statute. The
    paramedics contacted their medical command twice and received permission to
    intubate Jeremy. Dr. Sharma's testimony makes clear that, when she authorized
    intubation, she was not authorizing a specific number of attempts. Plaintiffs cite
    no authority or standard to support the frequency with which paramedics must
    contact medical command, and N.J.S.A. 26:2K-14 does not define what it means
    to maintain direct voice communication.
    Plaintiffs contend that immunity depends not only on acting in accordance
    with statutes, but also in accordance with regulations enacted to effectuate the
    Act. They argue the court's interpretation of the statute was flawed, and that it
    should have considered the legislature's intent to have the Commissioner of
    Health decide the scope of paramedic practice, which it did by adopting
    regulations found in N.J.A.C. 8:41-7 and -8. Plaintiffs argue that, because the
    regulations define how paramedics may practice, they are relevant to whether
    A-2968-22
    21
    the paramedics acted with good faith and whether they performed their services
    in accordance with the Act.
    Here, the court examined the plain language of the statute and found it
    clear and unambiguous. See Matter of H.D., 
    241 N.J. 412
    , 418 (2020) (quoting
    Garden State Check Cashing Serv., Inc. v. Dep't of Banking & Ins., 
    237 N.J. 482
    , 489 (2019)) ("Where 'a statute's plain language is clear, we apply that plain
    meaning and end our inquiry.'").       "We will not 'rewrite a plainly written
    enactment of the Legislature [or] presume that the Legislature intended
    something other than that expressed by way of the plain language.'" 
    Ibid.
     (citing
    State in Interest of K.O., 
    217 N.J. 83
    , 91-92 (2014)).         We decline to use
    regulations to discern the Legislature's intent when the statute is clear.
    The record shows plaintiffs' expert, Dr. Brown, agreed that direct voice
    communication does not mean a constant, live stream of communication. While
    responding to Jeremy's emergency, the paramedics relied on their authorization
    and instructions from medical command to intubate Jeremy when his breathing
    became difficult to manage. The trial court's determination that the paramedics
    were acting in accordance with the N.J.S.A. 26:2K-14 was not error.
    Finally, plaintiffs argue that defendants' actions amounted to gross
    negligence, actions which were not immunized. Plaintiffs posit that the question
    A-2968-22
    22
    of whether the behavior of the paramedics rose to gross negligence is a question
    for the finder of fact. Citing their expert, Dr. Brown, plaintiffs argue the
    paramedics repeatedly deviated from the standard of care while treating Jeremy,
    and their actions were egregious enough to amount to gross negligence.
    Plaintiffs argue the court was obligated to view Dr. Brown's opinions in the light
    most favorable to them as the non-moving party, but instead the court
    "minimized" his opinions as "perceived" deviations from the standard of care
    and "alleged" violations of controlling guidelines. Plaintiffs cite Steinberg v.
    Sahara Sam's Oasis LLC, 
    226 N.J. 344
    , 142 (2016), as support for their argument
    that safety code and regulatory violations can give rise to gross negligence .
    Gross negligence is "a higher degree of negligence" and "undoubtedly
    denotes 'the upper reaches of negligence conduct.'" Steinberg, 
    226 N.J. at 364
    (quoting Parks v. Pep Boys, 
    282 N.J. Super. 1
    , 17 n.6 (App. Div. 1995)).
    "Whereas negligence is 'the failure to exercise ordinary or reasonable care' that
    leads to a natural and probable injury, gross negligence is 'the failure to exercise
    slight care or diligence.'" 
    Ibid.
     (quoting Model Jury Charge (Civil), 5.12, "Gross
    Negligence" (2009)).     "Although gross negligence is something more than
    'inattention' or 'mistaken judgment,' it does not require willful or wanton
    misconduct or recklessness." 
    Ibid.
    A-2968-22
    23
    Here, the extensive record, viewed in the light most favorable to plaintiffs,
    does not support a finding of gross negligence.            The paramedics had
    authorization to intubate from their medical command, who testified she did not
    consider her authorization to be limited to a certain number of attempts, and that
    she generally trusts the judgement of paramedics because they are able to
    directly observe and assess the patient. While the record shows an unscheduled
    stop on the way to the hospital to retrieve a pediatric pulse oximeter, the
    paramedics' failure to securely attach Jeremy's breathing and intubation
    apparatus while transiting from the ambulance to the hospital, and the presence
    of the intubation device in Jeremy's esophagus rather than his trachea—we
    discern nothing which could be characterized as "the failure to exercise slight
    care or diligence," rising to gross negligence. Steinberg, 
    226 N.J. at 364
    .
    Any contentions raised by plaintiffs on appeal not addressed here lack
    sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-2968-22
    24
    

Document Info

Docket Number: A-2968-22

Filed Date: 11/18/2024

Precedential Status: Non-Precedential

Modified Date: 11/18/2024