DEBORAH HEART AND LUNG CENTER VS. VIRTUA HEALTH, INC. (L-1865-11, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2307-17T1
DEBORAH HEART AND LUNG
CENTER,
Plaintiff-Appellant,
v.
VIRTUA HEALTH, INC., VIRTUA
MEMORIAL HOSPITAL
BURLINGTON COUNTY, VIRTUA
MARLTON, RICHARD P. MILLER,
THE CARDIOLOGY GROUP, PA,
CHARLES A. DENNIS, M.D.,
F.A.C.C., JAMES P. O'NEIL, M.D.,
F.A.C.C., RALPH E. RUSSO, III,
M.D., F.A.C.C., and MARK T.
FINCH, M.D.,
Defendants-Respondents,
and
PALLAVI JADHAV, M.D.,
Defendant,
and
HARLEYSVILLE
INSURANCE COMPANY OF
NEW JERSEY,
Defendant/Intervenor-
Respondent.
____________________________
Argued April 3, 2019 – Decided July 16, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1865-11.
Anthony Argiropoulos argued the cause for appellant
(Epstein Becker & Green, PC, attorneys; Anthony
Argiropoulos and Thomas Kane, on the briefs).
Philip H. Lebowitz (Duane Morris, LLP) of the
Pennsylvania bar, admitted pro hac vice, argued the
cause for respondents Virtua Health, Inc., Virtua
Memorial Hospital Burlington County, Virtua Marlton,
and Richard P. Miller (Duane Morris, LLP and Philip
H. Lebowitz, attorneys; Christopher L. Soriano, Philip
H. Lebowitz, Seth A. Goldberg, and Trevor H.
Taniguchi, of counsel and on the brief).
Michael S. Stein argued the cause for respondents The
Cardiology Group, PA, Charles A. Dennis, M.D.,
F.A.C.C., James P. O'Neil, M.D., F.A.C.C., Ralph E.
Russo, III, M.D., F.A.C.C., and Mark T. Finch, M.D.
(Pashman Stein Walder Hayden, PC, attorneys;
Michael S. Stein, Brendan M. Walsh, and Janie S.
Byalik, on the brief).
Lance J. Kalik argued the cause for intervenor-
respondent Harleysville Insurance Company of New
A-2307-17T1
2
Jersey (Riker Danzig Scherer Hyland Perretti, LLP,
attorneys; Lance J. Kalik, on the brief).
PER CURIAM
Plaintiff Deborah Heart and Lung Center (Deborah) appeals from May 24,
2017 and January 5, 2018 orders granting summary judgment to defendants
Virtua Health, Inc., Virtua Memorial Hospital Burlington County, Virtua
Marlton (collectively Virtua), Richard Miller, Virtua's chief executive officer,
The Cardiology Group, PA (CGPA), and four of its physicians, Drs. James P.
O'Neil, Charles A. Dennis, Ralph E. Russo, III, and Mark T. Finch (collectively,
CGPA defendants). We affirm in part and reverse and remand in part.
This dispute involves the business interests of competitors seeking to
render medical care to cardiac patients located in the same geographic area of
South Jersey. Deborah contends defendants promoted their own financial gain
at the expense of patients and failed to protect patient rights.
We provide some background relevant to the relationship among the
parties and their dispute related to the care and treatment of cardiac patients.
Deborah provides charity care and does not charge its patients for medical
treatment. Deborah specializes in the treatment of cardiac patients but has no
general emergency room facility. Virtua, a competitor hospital, is located
approximately twelve miles from Deborah. It provides emergency room
A-2307-17T1
3
services but lacked a license to perform advanced cardiac procedures. CGPA is
a private cardiology group with privileges to treat patients at Virtua. Because
Virtua lacked the required cardiac license, CGPA's patients requiring advanced
cardiac services had to be transferred to a licensed cardiac facility. A symbiotic
relationship among Deborah, the CGPA defendants, and Virtua evolved based
on Deborah's ability to perform advanced cardiac procedures and Virtua's
capability to provide other healthcare services.
Prior to 2006, Virtua was unable to perform any advanced cardiac
procedures, and CGPA patients requiring such procedures had to be transferred
from Virtua to another hospital. In 1999, and again in 2002, CGPA and Deborah
entered into written physician lease agreements (agreements) whereby Deborah
leased cardiologists employed by it to CGPA. The leased cardiologists provided
cardiac services for CGPA patients at Deborah. Pursuant to these agreements,
CGPA paid Deborah a fee for the cardiac services provided by its cardiologists,
the patients remained CGPA patients, and CGPA billed the patients for the
services performed by the Deborah cardiologists.
Dr. Charles A. Dennis, a Deborah cardiologist, was leased to CGPA
pursuant to the agreements to perform advanced cardiac procedures. Dr. Dennis
received the majority of CGPA's patient referrals. In 2003, Virtua was granted
A-2307-17T1
4
a license to perform low-risk cardiac catheterizations. At that time, with
Deborah's consent, Dr. Dennis was granted privileges at Virtua to perform
cardiac catheterizations and became Virtua's cardiac catheterization laboratory
director.
In June 2006, Dr. Dennis resigned from Deborah and joined CGPA as a
full-time employee. He maintained privileges at both Deborah and Virtua. As
a CGPA employee, Dr. Dennis performed cardiac procedures at Virtua, and
CGPA no longer needed to lease cardiologists from Deborah. As a result, in
August 2006, CGPA terminated its agreements with Deborah.
On February 20, 2007, Deborah suspended Dr. Dennis's privileges at its
hospital. Dr. Dennis was told the suspension was based on an external review
that concluded he was a danger to patients. Dr. Dennis believed his suspension
was directly related to his outspoken criticism of Deborah's failure to maintain
a cutting-edge heart program.
Deborah knew suspending Dr. Dennis would cause it to lose CGPA patient
referrals. Deborah acknowledged Dr. Dennis was the link between CGPA and
Deborah, but "chose to give up that business" when it revoked his privileges.
Immediately after Deborah suspended Dr. Dennis, administrative personnel at
A-2307-17T1
5
Deborah were contacted by CGPA doctors, demanding Dr. Dennis be reinstated
or else Deborah would not receive CGPA patient referrals.
Deborah's suspension of Dr. Dennis prompted CGPA to seek an affiliation
with another hospital licensed to perform advanced cardiac procedures. In 2007,
CGPA partnered with Pennsylvania Presbyterian Hospital (Penn) for cardiac
services even though Penn was located slightly further from Virtua than
Deborah. Prior to 2007, CGPA sent eighty-five percent of its advanced cardiac
care patients to Deborah and fifteen percent of such patients to Penn. After
2007, seventy percent of CGPA cardiac patients went to Penn for cardiac
procedures and thirty percent went to Deborah.
Virtua claims it had no role in CGPA's decision to enter into the
agreements with Deborah. Nor was Virtua involved in CGPA's decision to hire
Dr. Dennis. Virtua also disavowed involvement in the discussions between
patients and their physicians regarding transfer to another hospital. In fact,
Virtua had a written policy that a patient's transfer to another hospital was a
decision made by the physician and the patient, reflecting the physician's
medical judgment and patient's preference. Virtua patients were required to sign
a consent form prior to transfer to another medical facility for care and
treatment.
A-2307-17T1
6
In the years preceding this litigation, several hospitals in the South Jersey
area were competing for cardiac patients, including Deborah. With the goal of
improving its financial situation, and increasing its pool of advanced cardiac
patients, Deborah had discussions with several hospitals about forming an
affiliation. In 2004, 2007, and 2008, Deborah and Virtua explored a possible
association but never reached an agreement.
In 2006, Dr. Dennis wrote to administrators at Virtua, touting a "white
knight" strategy to gain cardiac services and cardiac patients. Believing
Deborah was experiencing a critical financial situation, jeopardizing Deborah's
ability to remain open, Dr. Dennis developed a plan for Virtua to partner with
Deborah. The mutual benefit from such a partnership would have been Virtua's
ability to perform advanced cardiac surgical procedures and Deborah's receipt
of a predictable and steady stream of cardiac patients.
After affiliation discussions between the hospitals proved unsuccessful,
CGPA believed Deborah's financial situation was dire and Deborah would have
no choice but to close its doors. Some CGPA doctors were opposed to an
affiliation between Virtua and Deborah and preferred to see Deborah shut down.
Around this time, CGPA suspected Deborah was competing for cardiac
patients in the same geographic area of Burlington and Camden counties.
A-2307-17T1
7
According to Dr. Dennis, Deborah planned to open its own cardiology practice
with an office located near one of CGPA's office sites.
In 2009, Deborah filed suit against defendants alleging tortious
interference with prospective economic advantage, civil conspiracy, unfair
competition, and defamation-styled claims. The complaint was premised upon
allegations by twenty-seven identified CGPA patients (identified patients),
asserting they were transferred from Virtua to Penn for cardiac procedures
contrary to their stated preference to be transferred to Deborah. 1
In October 2011, Deborah filed a second amended complaint. The
amended complaint asserted the same claims against defendants but added
additional unidentified cardiac patients transferred from Virtua to Penn or other
hospitals between 2007 and 2011 (unidentified patients).2
Deborah alleged defendants collaborated in a scheme to drive Deborah out
of business by directing cardiac patients to hospitals other than Deborah. In
support of its theory, Deborah relied on testimony regarding patients who
1
The number of identified patients increased from twelve to twenty-three to
twenty-seven over the course of the litigation.
2
According to documents produced by the ambulance company responsible for
the transportation of the unidentified patients, over 1700 cardiac patie nts were
transferred from Virtua to Penn between 2007 and 2011.
A-2307-17T1
8
wished to be transferred from Virtua to Deborah for advanced heart-related
procedures. Deborah asserts that the failure to transfer these critically ill
patients to it as the nearest hospital to Virtua was improper, a violation of
medical ethics and standards, and contrary to the doctrine of informed consent.
There are two distinct groups of patients whose rights were violated by
defendants according to Deborah: twenty-seven identified patients and 1700
unidentified patients. We analyze Deborah's claims related to both patient
groups.
The twenty-seven identified patients went to Virtua's emergency room
with heart-related complaints after 2007, when CGPA had an affiliation
agreement with Penn. The identified patients requested a transfer from Virtua
to Deborah for their required cardiac procedures. The identified patients claim
they received false, disparaging, and misleading information about Deborah and
were transferred to Penn against their wishes.
One identified patient protested her transfer from Virtua to Penn and was
told Deborah's beds were full and CGPA was no longer affiliated with Deborah.
Another identified patient explained she wished to be transferred to Deborah
because Deborah's care was free, but was transferred to Penn over her objection.
Other identified patients claimed they requested to be transferred to Deborah
A-2307-17T1
9
because of a prior positive experience at Deborah, no-cost healthcare at
Deborah, or geographic proximity of Deborah to their home.
Some identified patients testified they were told there was a new
agreement between CGPA and Penn and there were no beds available at
Deborah. These patients also were allegedly told by CGPA that many
physicians had left Deborah, Deborah was about to shut its doors, Penn was a
better hospital than Deborah, and CGPA doctors recommended transfer to Penn.
The identified patients stated they were not advised of transfer hospital options
for their advanced heart procedures.
The CGPA defendants provided deposition testimony and submitted
certifications refuting Deborah's allegations regarding the identified patients.
The CGPA doctors averred that hospital transfers were discussed with the
patient and the transfer decision was dependent upon the patient's condition, the
risks associated with the transfer, and the cardiac procedure required.
The CGPA doctors explained it was not their policy to discuss alternative
hospitals with the patient. Nor did the doctors believe discussing available
hospital options was part of the required discussion between a physician and a
patient. According to CGPA, if a patient requested to be transferred to a
A-2307-17T1
10
different hospital rather than the recommended facility, the doctor would
attempt to honor the patient's request.
CGPA further stated that the majority of cardiac patients transferred from
Virtua to another hospital were not facing life threatening heart conditions. To
the contrary, CGPA claimed only a small number of their critically ill patients
were transferred from Virtua to Penn.
CGPA also denied telling patients that Deborah was closing, that CGPA
no longer sent patients to Deborah, or that Deborah had no available beds. While
many of CGPA's physicians believed Deborah's quality of cardiac care was not
as good as Penn's heart rescue program, the doctors agreed that if the patient
requested transfer to Deborah, the patient would go to Deborah if the doctor
deemed the transfer appropriate based on the patient's medical condition.
Virtua representatives also provided testimony and affidavits refuting
Deborah's allegations. Virtua asserted it had no policy preventing a patient from
being transferred to Deborah or any other hospital.
The parties exchanged discovery between 2009 and 2013. In 2014, the
judge re-opened discovery to allow Deborah to gather additional evidence in
support of its claims related to the unidentified patients. Deborah obtained
records from Virtua's ambulance company of patient transfers between 2007 to
A-2307-17T1
11
2011. These records enabled Deborah to contact the unidentified patients to
obtain evidence in support of its claims.
Instead of conducting discovery based on the ambulance records, Deborah
relied on a random telephone survey, purporting to establish patients preferred
to be transferred from Virtua to Deborah instead of Penn or another hospital.
The survey asked an open-ended question regarding which hospital the survey
respondent would select for treatment of a serious cardiac problem. When the
individual responded to this question, Deborah and Virtua each received a
twenty-five percent favorable response. The surveyed individuals were then
given hypothetical information, purportedly relating to informed consent
disclosures such as the costs associated with the transfer hospital, the geographic
location of the transfer hospital, the physician's affiliation with the transfer
hospital, and the assumption that the individual had a life threatening heart
condition, requiring immediate transport to the nearest facility. When this
information was incorporated into the survey, between seventy-three percent
and eighty-one percent of those surveyed selected Deborah as the preferred
hospital for transfer. Based on the survey results, Deborah's damages expert
calculated Deborah lost $26,309,192 in patient transfers from Virtua between
2007 and 2012.
A-2307-17T1
12
Deborah also retained several experts who opined that a physician is
required to discuss transfer hospital alternatives in procuring a patient's
informed consent prior to a transfer. Dr. Eric Stander opined Deborah had an
important advantage over Penn because of its closer proximity to Virtua. He
stated this factor was probative information that should have been conveyed to
the patient as part of the informed consent discussion. Deborah's tortious
interference claim related to the identified and unidentified patients was based
on the failure of the CGPA defendants and Virtua to disclose Deborah as an
alternative transfer hospital in violation of the Hospital Patients Bill of Rights
Act (Act), N.J.S.A. 26:2H-12.8(j),3 and the doctrine of informed consent.
After discovery closed, defendants filed motions for partial summary
judgment on the tortious interference with prospective economic advantage
claims related to the unidentified patients. On May 24, 2017, the judge granted
partial summary judgment to defendants. On that same date, the judge dismissed
3
The Act provides a patient admitted to a hospital licensed by the Department
of Health has the right "[t]o be informed by the hospital of the necessity of
transfer to another facility prior to the transfer and of any alternatives to it which
may exist, which transfer shall not be effected unless it is determined by the
physician to be medically necessary . . . ." The Act does not allow a patient to
pursue a private cause of action against a hospital. See Castro v. NYT
Television, 370 N.J. Super. 282, 294 (App. Div. 2004).
A-2307-17T1
13
the disparagement claims against the CGPA defendants because Deborah
conceded it did not have a viable cause of action for defamation, slander, or
injurious falsehood.
In granting partial summary judgment, the judge held Deborah failed to
establish "the predicate wrongful conduct to pursue business tort claims." Th e
judge determined that neither the doctrine of informed consent , nor any other
theory advanced by Deborah's experts, required defendants to disclose Deborah
as an alternative transfer hospital.
In rejecting the informed consent claim, the judge found, "[t]he informed
consent doctrine is to protect patient's rights for self-determination, not to
protect market share or to foster competition." The judge noted, "[t]here are no
cases saying that informed consent includes a doctor's disclosure of alternative
facilities." Relying on Largey v. Rothman, 110 N.J. 204 (1988), the judge
explained the information that must be imparted by a physician to a patient
includes "the inherent and potential hazards of the proposed treatment, the
alternatives to that treatment, if any, and the results likely if the patient remains
untreated."
Regarding Deborah's claim that defendants violated the Act by failing to
disclose alternative transfer hospitals, the judge stated:
A-2307-17T1
14
The language of the statute requires doctors to
inform patients of the names of potential alternative
transfer facilities or transportation times. New Jersey
Patient Bill of Rights does not provide a right of action.
It is intended to protect patients, not other hospitals.
Nothing in reading the statute and [the] rules of
construction . . . support[s] [Deborah's] position that the
statute requires a doctor to inform patients of any
material alternative transfer facilities to which patients
could be sent.
The judge also determined Deborah's informed consent claim was
inapplicable as to the 1700 unidentified patients on a class-wide basis. He
concluded:
In Largey, the Court held that . . . "[t]he desirable
scope of the disclosure depends on the given fact
situation which varies from patient to patient . . . ."
Deborah's business tort claim fails as a matter of law
because its claims relating to the unidentified patients
turns on its contention that CGPA doctors were
required to provide exactly the same disclosures to each
one of the 1,700 unidentified patients, and that is not
possible since the type and scope of the disclosure
required by law varies from patient to patient informed
by the particular circumstances presented.
....
To the extent that Deborah's experts contend that
the scope of the disclosure for each of the unidentified
patients can be determined without any individualized
inquiry into each patient's individual medical condition
and personal circumstance, that is patently wrong . . . .
Patient-specific issues are primary here, very different
cardiac issues, different personal circumstances. Some
procedures are elective, some are emergent . . . .
A-2307-17T1
15
In analyzing the tortious interference with prospective economic
advantage claim, the judge concluded Deborah had no protectable interest in
receiving patients that was superior to the right of other hospitals to receive
these same patients. He explained:
The undisputed evidence shows that once the
contractual relationship between CGPA and Deborah
terminated in 2006 . . . Deborah had no more reason to
expect CGPA referrals than any of the six other
hospitals in competition with Deborah for CGPA
patients, so Deborah's claim for tortious interference
with respect to economic advantage must fail since it
had no greater right than the other hospitals competing
with Deborah.
The judge also rejected Deborah's claim that the CGPA defendants
engaged in unfair competition by discouraging the unidentified patients from
transferring to Deborah. He held "[t]he unfair competition claim fails because
CGPA and the individual cardiologists are in fact not in competition with
Deborah . . . . Deborah is a specialty hospital. They're not in competition with
CGPA which is a private cardiology group."
In addition, the judge dismissed Deborah's civil conspiracy claim against
the CGPA defendants related to the unidentified patients. He noted there was
"not a single piece of evidence cited by Deborah that can even be construed as
evidence of a conspiracy" to harm Deborah. As the judge explained, "[s]ince
A-2307-17T1
16
Deborah can show no tortious conduct regarding the unidentified patients . . .
the conspiracy claim would fail . . . ."
The judge also concluded Deborah's survey related to the unidentified
patients was flawed because the assumptions in the survey questions were
unsupported by the record. He found the survey improperly presumed certain
physician-patient disclosures were legally required under the informed consent
doctrine despite the lack of any medical requirement compelling those
disclosures. The judge also found the survey improperly relied on hypothetical
situations lacking any factual foundation in the record, such as the need to
complete hospital transfers to the nearest hospital as quickly as possible because
every unidentified patient was critically ill. The judge also noted the record was
devoid of discussions between doctors and any of the unidentified patients.
The judge concluded Deborah's tortious interference claim against Virtua
and Miller as to the unidentified patients also failed. The judge found Deborah
provided no evidence that Virtua was involved in discussions between the CGPA
defendants and patients regarding transfer hospital destinations. Based on the
unrefuted evidence, such discussions were exclusively between the doctor and
the patient. The judge determined Virtua's role in the hospital transfer process
A-2307-17T1
17
was limited to carrying out the doctor's transfer instructions and requiring the
patient to sign the necessary transfer form.
The judge also rejected Deborah's unfair competition claim against Virtua
related to the unidentified patients. He concluded the relationship between
Virtua and Penn was no different than the prior relationship between Virtua and
Deborah. Nor did he find anything improper in Virtua exploring an opportunity
to affiliate with Deborah. The judge explained that the "white knight" strategy
was not indicative of unfair competition because "[a] white knight rescues a
distressed enemy from distressed conditions."
On the civil conspiracy claims against Virtua related to the unidentified
patients, the judge stated, "there is not a single piece of evidence cited by
Deborah that can even be construed as evidence of a conspiracy involving Virtua
to take any action to harm Deborah . . . ." He further found, "[n]othing in the
cited emails or testimony suggests that Virtua engaged [in] or intended to engage
in malicious or unlawful conduct directed at Deborah . . . ."
As to Miller, Virtua's chief executive officer at the time, the judge
concluded he was not involved in any wrongful or tortious conduct. The judge
found, "[t]here's simply no credible evidence in the record that Miller
A-2307-17T1
18
participated actively in a tortious act, nor . . . are there any tortious acts as a
matter of law."
Deborah filed a motion for reconsideration from the orders granting
partial summary judgment and dismissing its claims related to the unidentified
patients. At the same time, the CGPA defendants, Virtua, and Miller moved for
summary judgment on Deborah's claims related to the identified patients. On
January 5, 2018, the judge denied Deborah's motion for reconsideration and
granted defendants' motions to dismiss the claims related to the identified
patients.
In granting summary judgment to defendants on Deborah's claims as to
the identified patients, the judge made similar rulings as he had regarding
unidentified patients. The judge also noted dismissal was proper because there
were no identified patients named as parties in the litigation.
In addition, the judge concluded there was no requisite third party to any
prospective economic relationship for Deborah to prevail on its tortious
interference claim. The judge stated:
CGPA was the sole source of the referrals of their
patients that plaintiff claims it should have received, so
clearly CGPA was an essential party to the
[prospective] referrals . . . . CGPA was the link
between plaintiff and the patients who were CGPA's
patients.
A-2307-17T1
19
Even if an . . . interference with business relations
claim is applicable, summary judgment still must be
granted since CGPA is an essential entity to the
purported injured relations between its patients and
plaintiff. And CGPA was the source . . . of the business
opportunity allegedly interfered with.
....
The record before the [c]ourt, even giving all
inferences to plaintiff, is that GCPA had both an
economic and beneficial interest in where their patients
were transferred. Either one of these interests makes
plaintiff's claim fatally flawed and subject to summary
judgment.
On appeal, Deborah contends the judge erred in dismissing its claims. In
addition, Deborah argues the judge erred in declining to conduct a N.J.R.E. 104
hearing prior to granting summary judgment. Further, Deborah claims the order
dismissing the disparagement claims was overly broad and restricted its ability
to present evidence in support of its claims.
We review a trial court's decision to grant or deny a motion for summary
judgment de novo, using the same standards applied by the motion judge. Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). We first determine "whether
there is a genuine issue for trial." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)); R. 4:46-2(c). "If there is no genuine issue of fact, we then decide
A-2307-17T1
20
whether the [trial court's] ruling on the law was correct." Lebron v. Sanchez,
407 N.J. Super. 204, 213 (App. Div. 2009). "A party cannot defeat a motion for
summary judgment merely by submitting an expert's report in his or her favor."
Brill, 142 N.J. at 544 (holding an expert's opinion "based on a factually
inaccurate and unjustifiable assertion . . . does not create a genuine issue of
material fact precluding the grant of summary judgment"); see also Townsend
v. Pierre, 221 N.J. 36, 55 (2015) ("A party's burden of proof on an element of a
claim may not be satisfied by an expert opinion that is unsupported by the factual
record or by an expert's speculation that contradicts that record.").
We first examine dismissal of Deborah's claim for tortious interference
with prospective economic advantage. To prevail on a claim for tortious
interference with a prospective economic advantage, a plaintiff must show (1)
some protectable right, some existence of a reasonable expectation of economic
advantage, such as a prospective economic or contractual relationship; (2) an
intentional and malicious interference with that expectation; (3) a causal
connection between the interference and the loss of the prospective gain; and (4)
damages. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
751-52 (1989). An action for tortious interference with prospective economic
advantage protects a business from the luring away of its customers by improper
A-2307-17T1
21
means. Id. at 750. It is fundamental to a cause of action for tortious interference
with a prospective economic relationship that the claim "be directed at
defendants who are not parties to the relationship." Id. at 752.
The relationship between Deborah and CGPA was based on CGPA's need
to send cardiac patients to a hospital licensed to perform such procedures
because Virtua lacked the necessary license. Deborah and CGPA entered into
agreements whereby Deborah leased cardiologists to CGPA to perform the
required medical procedures for CGPA patients. During the time the agreements
were in effect, Deborah received eighty-five percent of CGPA's patient referrals.
After 2006, when the agreements were terminated, Deborah still received thirty
percent of CGPA's patient referrals.
Absent any agreement between Deborah and CGPA to transfer patients,
Deborah had no reasonable expectation that such patients would continue to be
referred to it. A prior contractual agreement to form a business relationship does
not constitute a basis for a prospective economic relationship claim. See
Printing Mart, 116 N.J. at 754-55; see also Ideal Dairy Farms, Inc. v. Farmland
Dairy Farms, Inc., 282 N.J. Super. 140, 199 (App. Div. 1995) ("[W]here a
plaintiff's loss of business is merely the incident of healthy competition, there is
no compensable tort injury.").
A-2307-17T1
22
Nor were CGPA and Virtua third parties to the patient transfer
arrangement. It is fundamental to a cause of action for tortious interference with
prospective economic advantage that the claim be directed at defendants who
are not parties to the existing economic relationship. See Printing Mart, 116
N.J. at 752. Here, the CGPA defendants and Virtua were essential parties to the
transfer of patients from Virtua to Deborah based on the agreements prior to
2006. Deborah's expectation it would receive cardiac patient transfers from
Virtua was based on those agreements. After the agreements were terminated,
Deborah could not expect the continued receipt of CGPA cardiac patients from
Virtua.
Having reviewed the record, we are satisfied the judge correctly
determined Deborah could not succeed on its claims for tortious interference
with prospective economic advantage. CGPA was the link between the patients
and Deborah and therefore CGPA was not a third party in the transfer of its
patients from Virtua. Further, after the agreements between Deborah and CGPA
were terminated, Deborah had no reasonable expectation of any economic
interest in the continued transfer of CGPA's patients who required advanced
cardiac procedures.
A-2307-17T1
23
Nor can Deborah prevail on its tortious interference claim grounded on
informed consent. Deborah contends the actions of the CGPA defendants and
Virtua constituted a denial of the patients' informed consent regarding the
transfer hospital destination.
The doctrine of informed consent obligates physicians to disclose material
risks inherent in a procedure or course of treatment so the patient may make an
informed decision. Matthies v. Mastromonaco, 160 N.J. 26, 36 (1999); Largey,
110 N.J. at 211-12. Under the doctrine, the physician is required to advise the
patient of "all medical information that a reasonably prudent patient would find
material[,]" Acuna v. Turkish, 192 N.J. 399, 415 (2007), and "the inherent and
potential hazards of the proposed treatment, the alternatives to that treatment , if
any, and the results likely if the patient remains untreated." Largey, 110 N.J. at
213 (quoting Canterbury v. Spence, 464 F.2d 772, 787-88 (D.C. Cir. 1972)).
Doctors have no obligation to provide information unrelated to the "procedure,
its substantial risks, and alternatives . . . ." Howard v. Univ. of Med. and
Dentistry of N.J., 172 N.J. 537, 557 (2002) (finding doctors had no duty to detail
their medical experience as part of the informed consent discussion); see also
Blazoski v. Cook, 346 N.J. Super. 256, 269-70 (App. Div. 2002) (declaring
A-2307-17T1
24
"[a]ctions for informed consent are limited to the nondisclosure of medical
information.").
The doctrine of informed consent does not accord a basis for Deborah's
claims in this case. A physician is not required to discuss with a patient where
medical treatment will be performed or to present various options as to different
treatment facilities. While a patient may want to consider the distance from his
or her home to the transfer hospital or the costs related to a transfer to a more
distant hospital, the failure of a physician to address such non-medical
information is not contrary to the doctrine of informed consent. We see no
reason to expand the doctrine of informed consent to impose an obligation on a
doctor to counsel a patient on non-medical information regarding all medical
facilities available for treatment.
We also reject Deborah's attempt to apply the doctrine of informed
consent to the unidentified patients because the scope of the required disclosures
is fact-specific and necessarily "varies from patient to patient." Largey, 110 N.J.
at 212 (quoting D. Louiseu and H. Williams, Medical Malpractice § 22.12 at 22-
45 to -47 (1987)). There is no evidence in the record indicating what
information, if any, was provided to the unidentified patients by the CGPA
defendants or Virtua. Nor does the record disclose the medical circumstances
A-2307-17T1
25
of each unidentified patient. Deborah's random survey assumed, without actual
evidence or review of any medical records, that each of the 1700 unidentified
patients was seriously ill and required immediate medical attention at the nearest
hospital facility. Based on the unique nature of each patient's medical
circumstance, including the patient's prior medical history, the nature of the
procedure required, and the relationship with the treating doctor, courts have
declined to expand the doctrine of informed consent to claims asserted on a
class-wide basis. See Hum v. Dericks, 162 F.R.D. 628, 640 (D. Hawaii 1995)
(quoting Harrigan v. United States, 63 F.R.D. 402, 405 (E.D. Pa. 1974)
(rejecting an informed consent claim on behalf of dozens of patients who
underwent surgery with a non-FDA approved ligament because "[a]
determination of informed consent in each case depends on a separate inquiry
into the facts surrounding each operation and an application of the facts to the
governing legal principles"); Harrigan, 63 F.R.D. at 405-07 (holding questions
relating to veterans' informed consent for urinary tract surgery performed at a
Veteran's Administration hospital had to be determined on the basis of the facts
relevant to each individual case and rejecting informed consent claims on behalf
of the proposed class of veterans)).
A-2307-17T1
26
Having reviewed the record, we are satisfied the judge properly rejected
Deborah's informed consent claims as to the unidentified patients based on the
absence of evidence as to the medical circumstances of each unidentified patient
and the discussion between the unidentified patient and the doctor.
Deborah also contends the trial judge erred in refusing to conduct a Rule
104 hearing regarding the expert opinion testimony of Dr. Stander. A Rule 104
hearing allows a court to assess an expert's opinion prior to trial to determine if
the testimony is grounded on scientifically sound reasoning and methodology or
is based on the expert's self-validating, unsubstantiated personal belief. See In
re Accutane, 234 N.J. 340, 390-91 (2018).
However, Deborah never sought a Rule 104 hearing despite the judge
establishing a deadline to request a hearing. Nor did defendants challenge the
reliability of Dr. Stander's methodology, which would require a Rule 104
hearing. Instead, defendants argued there was no factual basis in the record to
support Dr. Stander's opinions regarding the life threatening conditions of the
unidentified patients and the requirement that the unidentified patients be
transported to the nearest hospital as quickly as possible.
Under the circumstances, there was no need to conduct a Rule 104 hearing.
Moreover, Deborah told the trial judge that Rule 104 hearings were unnecessary
A-2307-17T1
27
because "[t]he expert issues . . . have been explored very, very deeply over the
course of the summary judgment motion practice." Because Deborah conceded
there was no need to conduct an evidentiary hearing on the admissibility of their
own expert's testimony, we are satisfied the judge did not err by failing to
conduct a Rule 104 hearing.
We next consider the summary judgment dismissal of Deborah's unfair
competition claim. "[T]he essence of unfair competition is fair play." Ryan v.
Carmona Bolen Home for Funerals, 341 N.J. Super. 87, 92 (App. Div. 2001)
(alteration in original) (quoting Columbia Broad. Sys. v. Melody Recordings,
134 N.J. Super. 360, 376 (App. Div. 1975)). "[T]he purpose of the law regarding
unfair competition is to promote higher ethical standards in the business world."
Ibid. (citing N.J. Optometric Ass'n v. Hillman-Kohan, 144 N.J. Super. 411, 427
(Ch. Div. 1976)). "The judicial goal should be to discourage, or prohibit the use
of misleading or deceptive practices which renders competition unfair. The law
must be sufficiently flexible to accommodate those goals." Ibid.
Deborah argues the judge erred in granting summary judgment on its
unfair competition claim when he concluded Deborah and CGPA were not
competitors. Having reviewed the record, there was evidence presented
regarding competition among the parties for cardiac patients because Deborah
A-2307-17T1
28
employed cardiologists who saw private patients in medical offices similar to
CGPA. In addition, Dr. Dennis testified that Deborah had become a competitor
of CGPA in soliciting cardiac patients. Based on the conflicting testimony and
certifications describing the competition for cardiac patients, there were
genuinely disputed material facts precluding summary judgment on Deborah's
unfair competition claim. The jury should determine if any of the actions or
statements by defendants were undertaken as part of an effort to deprive
Deborah of cardiac patients, resulting in unfair competition. 4
We next examine the dismissal of Deborah's civil conspiracy claim. A
civil conspiracy is "a combination of two or more persons acting in concert to
commit an unlawful act, or to commit a lawful act by unlawful means, the
principal element of which is an agreement between the parties to inflict a wrong
against or injury upon another, and an overt act" resulting in damages. Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union
County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993)).
"To establish a conspiracy, 'it simply must be shown that there was a "single
plan, the essential nature and general scope of which [was] known to each person
4
For the reasons previously expressed in this opinion, Deborah's surviving
claims are limited to the identified patients as the claims advanced on behalf of
the unidentified patients are speculative and lack support in the record .
A-2307-17T1
29
who is to be held responsible for its consequences."'" Morgan, 268 N.J. Super.
at 365 (alteration in original) (quoting Hampton v. Hanrahan, 600 F.2d 600, 621
(7th Cir. 1979)). A court will find a civil conspiracy where the purported
conspirator understood "the general objectives of the scheme, accept[ed] them,
and agree[d], either explicitly or implicitly, to do [their] part to further them."
Gandi, 184 N.J. at 177 (quoting Jones v. City of Chicago, 856 F.2d 985, 992
(7th Cir. 1988)).
Our review of the record reveals email exchanges, deposition testimony,
and certifications suggesting defendants collectively worked to shutter Deborah.
It is for a jury to determine whether defendants formed a plan to close Deborah
by sending cardiac patients to other hospitals. If defendants engaged in
misleading practices related to Deborah's unfair competition claim, the jury
could also find a civil conspiracy among defendants to hasten the fiscal ruin of
Deborah, and force the hospital to close its doors. There are material factual
disputes related to defendants' formulation of a plan to put Deborah out of
business by depriving Deborah of patients, deliberately discouraging patients
from transferring to Deborah, and making disparaging comments about the
quality of care at Deborah that precluded summary judgment on Deborah's civil
conspiracy claim.
A-2307-17T1
30
We also review the judge's dismissal of Deborah's disparagement claims
against the CGPA defendants. Deborah argues the language dismissing the
disparagement claims may preclude it from presenting evidence at trial.
In reviewing the order dismissing the disparagement claims, we fail to
ascertain any language that would preclude Deborah from presenting evidence
in support of its surviving claims. Nor does Deborah explain how it would be
prejudiced from presenting evidence based on the language in that order.
Affirmed as to dismissal of Deborah's claims against defendants for
tortious interference with prospective economic advantage. Affirmed as to
dismissal of Deborah's disparagement claims against the CGPA defendants.
Reversed and remanded as to Deborah's claims against defendants for unfair
competition and civil conspiracy limited to the identified patients.
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
A-2307-17T1
31