CHRISTINE GASPERETTI, M.D. VS. DEBORAH HEART AND LUNG CENTER(C-000144-08, 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NOT FOR PUBLICATION WITHOUT THE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-0244-13T2
CHRISTINE GASPERETTI, M.D.,
Plaintiff-Appellant,
v.
DEBORAH HEART AND LUNG CENTER,
LYNN MCGRATH, M.D., JOHN ERNST
and JILL T. OJSERKIS, ESQ.,
Defendants-Respondents,
and
STATE OF NEW JERSEY, BOARD OF
MEDICAL EXAMINERS,1
Defendant.
________________________________________
Argued November 2, 2016 – Decided November 22, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Mercer County,
Docket No. C-000144-08.
Michael Confusione argued the cause for
appellant Christine Gasperetti, M.D., (Hegge
1
The claims against the State of New Jersey, Board of Medical
Examiners, were settled prior to oral argument.
& Confusione, LLC, attorneys; Mr. Confusione,
of counsel and on the briefs).
William M. Honan argued the cause for
respondents Deborah Heart and Lung Center,
Lynn McGrath, M.D., and John Ernst (Fox
Rothschild, LLP, attorneys; Mr. Honan, of
counsel; Mary M. McCudden, on the brief).
Robert A. Baxter argued the cause for
respondent Jill T. Ojserkis, Esq. (Craig,
Annin & Baxter, LLP, attorneys; Mr. Baxter,
of counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Plaintiff Christine Gasperetti, M.D., appeals from the
Chancery Division's June 3 and August 15, 2013 orders. The June
3, 2013 order granted summary judgment to defendants Deborah Heart
and Lung Center (Deborah), Lynn McGrath, M.D., and John Ernst.
The August 15, 2013 order denied plaintiff's motion for
reconsideration.2 Having considered the arguments and applicable
law, we affirm.
2
In an April 30, 2010 order, the trial court dismissed the
complaint against defendant Jill Ojserkis for failure to state a
claim upon which relief can be granted, R. 4:6-2(e). Plaintiff
did not identify the April 30, 2010 order in either her Notice of
Appeal or her Amended Notice of Appeal. It is well-settled that
we review "only the judgment or orders designated in the notice
of appeal[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368
N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of
Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138
N.J. 41 (1994)). See also R. 2:5-1(f)(3)(A). Stated differently,
any arguments raised by defendant that fall outside the four
2 A-0244-13T2
I.
We derive the following facts from evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motion, viewed in the light most favorable to plaintiff. Angland
v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
Plaintiff is a board certified interventional cardiologist. She
was employed by Deborah from 1998 until her resignation on June
17, 2008. Plaintiff alleged that beginning in 2005, she was
subjected to a hostile work environment and bullying by other
physicians in the Cardiac Catheterization Lab (Cath Lab) based on
her gender. Plaintiff complained about inappropriate gender-based
postings on the Cath Lab bulletin board and other harassing
incidents. In response, administrative action was taken,
including reiterating to all Cath Lab employees Deborah's policy
regarding sexual harassment; requiring department managers to
review and approve the content of all postings on a daily basis;
and advising that further instances would lead to disciplinary
action.
corners of the Notice of Appeal likewise fall outside the scope
of our appellate jurisdiction in this case, and are therefore not
reviewable as a matter of law.
3 A-0244-13T2
On October 8, 2007, Dr. Tommy Ng and Dr. Charles DeBerardinis,
two of plaintiff's colleagues with whom she had serious
disagreements about scheduling, billing and patient referrals,
told Bret Bissey, Deborah's Corporate Compliance Officer, that
they were troubled about the clinical care plaintiff was providing
to her patients. The doctors indicated that they had reviewed
three cases in the past week in which they believed that medically
unnecessary catheterizations may have been performed by plaintiff.
At the time, DeBerardinis was the Director of the Cath Lab and Ng
was the Assistant Director. Although Bissey requested that the
doctors put their concerns in writing, they failed to do so.
Nonetheless, Bissey recommended to John Ernst, Deborah's President
and Chief Executive Officer, that they "hire an external evaluator
. . . to assist [Deborah] in determining and assessing whether
this claim of medically unnecessary angioplasties being performed
by [plaintiff] [was] valid."
When Bissey left Deborah's employ, Michael McKeever took over
as Director of Corporate Compliance and followed up with Ernst
regarding DeBerardinis' and Ng's complaint. As a result, on
January 25, 2008, Ernst asked DeBerardinis and Ng to identify ten
of plaintiff's cases. He informed them that he and Dr. Lynn
McGrath, Deborah's Vice President of Medical Affairs, would
empanel a Professional Practice Evaluation Committee (PPEC) to
4 A-0244-13T2
initiate an independent review of the identified cases to ascertain
the validity of the concerns and take appropriate corrective
action. At the time, Deborah was negotiating an employment
contract with plaintiff and considering her for other leadership
positions. However, Ernst was assured by McGrath that an
employment contract could be vacated if the allegations were
substantiated.
On February 28, 2008, Deborah held its first PPEC meeting.
After acknowledging that the Cath Lab was polarized and that
plaintiff had previously complained about harassment, the PPEC
directed its outside counsel, Jill Ojserkis, to initiate an
external review of the ten identified cases to avoid further
"internal dissension and breach of confidentiality." On April 10,
2008, Deborah engaged Medical Peer Review Services, LLC (Medical
Peer Review), to review the ten cases identified by DeBerardinis
and Ng as well as ten additional randomly selected cases. On June
5, 2008, Medical Peer Review submitted its reports to Ojserkis,
finding numerous issues related to the standard of care undertaken
by plaintiff. Mahdi Al-Bassam, M.D., prepared the executive
summaries and peer review reports submitted by Medical Peer Review
for all twenty cases. On June 12, 2008, McGrath recommended the
PPEC reconvene to analyze the report.
5 A-0244-13T2
On the morning of June 17, 2008, plaintiff delivered a letter
of resignation to Ernst, indicating it would be effective June 30,
2008. Plaintiff had sought alternative employment, in part, to
secure a more stable schedule to spend more time with her ailing
mother, and had confidentially accepted an offer of employment
from the University of Pennsylvania Health System (Penn). Later
that afternoon, the PPEC reconvened at 1:00 p.m. to discuss Medical
Peer Review's findings. The PPEC "noted that there may be issues
with [plaintiff's] interpretation skills in addition to possible
quality of care issues." However, because the members "had not
had adequate time to review the findings prior to the meeting[,]"
they decided "to do a more detailed review of the findings in
order that they can be discussed in greater detail at the next
meeting." The PPEC expressed concern about plaintiff "treat[ing]
patients alone" in the interim. Upon being informed that
"[plaintiff] was on a [two-] week vacation and had sent in a letter
of resignation effective June 30th[,]" the PPEC directed Dr.
Gallagher, Acting Vice President of Medical Affairs in McGrath's
absence, to notify plaintiff that "a review was ongoing" and if
she chose to treat patients upon her return, she would be subject
to monitoring.
Following the meeting, Gallagher telephoned plaintiff and
advised her that there were "problems" with her work. Plaintiff
6 A-0244-13T2
discontinued the call. After the phone call, plaintiff e-mailed
a revised resignation letter to Ernst, making her resignation
effective "immediately" due to "unforeseen personal
circumstances[.]" On June 26, 2008, the PPEC reconvened to discuss
its review of Medical Peer Review's findings. While there were a
few cases in which Committee members did not agree with Medical
Peer Review's findings, the PPEC "agreed that the report clearly
showed potentially significant issues with clinical skills and
judgment that could affect patient care." However, upon being
advised that plaintiff had resigned, the PPEC terminated its review
and referred its findings to administration for reporting as
necessary.
On July 24, 2008, pursuant to N.J.S.A. 26:2H-12.2b(a)(3),3
Ojserkis, in her capacity as counsel to Deborah, submitted a
3
N.J.S.A. 26:2H-12.2b(a)(3) provides:
A health care entity shall notify the Division
in writing if a health care professional
who is employed by . . . that health care
entity . . . voluntarily resigns from the
staff if . . . the health care entity is
reviewing the health care professional's
patient care or reviewing whether, based upon
its reasonable belief, the health care
professional's conduct demonstrates an
impairment or incompetence or is
unprofessional, which incompetence or
unprofessional conduct relates adversely to
patient care or safety[.]
7 A-0244-13T2
notification, to the New Jersey Board of Medical Examiners (Board)
informing the Board that plaintiff resigned her position while
"Deborah was reviewing [her] patient care." In the notification,
Ojserkis stated:
Deborah's [PPEC] began a focused practice
evaluation regarding certain clinical
practices including documentation issues of
[plaintiff] which resulted in Deborah sending
certain medical records to an outside peer
reviewer. The outside peer reviewer reports
were reviewed by [PPEC] at its meetings on
June 17, 2008 and June 26, 2008. The Committee
agreed with the outside peer reviewer that the
report showed potentially significant issues
with clinical skills and judgment that could
affect patient care.
At [PPEC's] request, a member of [PPEC]
contacted [plaintiff] on June 17, 2008 to
advise her that [PPEC] wanted to meet with her
to discuss areas of concern. It appears that
[plaintiff] verbally resigned on June 17, 2008
although she provided a written letter of
resignation dated June 16, 2008 making her
resignation effective June 30, 2008.
[Plaintiff] then sent another letter dated
June 17, 2008 changing the date of her
resignation to immediate. It is unclear
whether [plaintiff's] first resignation
occurred before or outside the call with a
member of [PPEC].
Ojserkis indicated in the notification that Deborah did not provide
plaintiff "with a copy of [the] notice as required under N.J.S.A.
8 A-0244-13T2
26:2H-12.2b(h)[,]4 as the report [was] made pursuant to section
(a)(3) which appears to be an exception to the notice provision."
In addition, on August 4, 2008, McKeever prepared the
following memo to plaintiff's credentials file:
On July 24, 2008, [Deborah's counsel] notified
the [Board], pursuant to N.J.S.A. 2H:12.2b,
that [plaintiff] at the time of her voluntary
resignation from the Medical Staff of Deborah
was the subject of a [PPEC] that was formed
to review certain of her clinical practices
including documentation issues. Prior to her
resignation, and unknown to her at the time,
certain records had been independently peer
reviewed. [Plaintiff] resigned upon being
made aware of the review by the [PPEC] but
before the [PPEC] met to accept the results.
As part of her new position at Penn, plaintiff sought credentials
at other hospitals. In response to credentials requests from
these institutions, where applicable, Deborah supplied the
McKeever memo. Plaintiff's application for credentials was never
turned down by any hospital.
4
N.J.S.A. 26:2H-12.2b(h) provides, in pertinent part,
[a] health care entity shall provide the
health care professional who is the subject
of a notice pursuant to paragraphs (1), (2),
(4) and (5) of subsection a. of this section
. . . with a copy of the notice provided to
the division when the health care entity
submits the notice to the [Division of
Consumer Affairs in the Department of Law and
Public Safety].
9 A-0244-13T2
Additionally, in response to a request from Virtua Medical
System for further credentialing information, McGrath advised
that: 1) "a complaint had been raised against [plaintiff] . . .
regarding certain practice patterns[;]" 2) an "external peer
reviewer" was engaged and issued "a report indicating that there
were certain irregularities in [plaintiff's] practice, including
the performance of unnecessary right heart catheterizations[;]"
3) plaintiff was informed "that she was under investigation because
of issues related to her practice[,]" and "[s]hortly thereafter,
. . . resigned[,] . . . voiding any protections that would have
ordinarily been afforded to her by the medical staff bylaws" and
without "the opportunity to present her side of the case[;]" and
4) on the advice of counsel, "a report was made to the [Board.]"
On August 13, 2008, the Director of the Division of Consumer
Affairs notified plaintiff that a "change" to the Privilege
Loss/Restriction section of her New Jersey Health Care Profile was
going to be made public in thirty days. Plaintiff certified that
she first became aware of the report to the Board on August 16,
2008, when she received the August 13, 2008 notice. The notice
advised plaintiff that "[t]he New Jersey Health Care Consumer
Information Act, as amended, require[d] that profile information
. . . be made available to the public." However, under "[t]he
law[,]" plaintiff had "[thirty] calendar days to review and correct
10 A-0244-13T2
any factual inaccuracy to the modified profile before it becomes
available to the public."
Plaintiff formally objected to the modification of her public
profile but, on October 17, 2008, the Board determined that the
modification was warranted. The Board agreed, however, to stay
the modified posting for thirty days to allow plaintiff to obtain
a retraction from Deborah or contest the ruling in court.
Otherwise, the Board intended to post the following statement on
plaintiff's physician profile: "Deborah . . . reported that
[plaintiff] resigned while Deborah was conducting a review of her
clinical practices (including documentation issues)." The Board's
decision was based on Ojserkis' July 24, 2008 notification as well
as Ojserkis' subsequent letter to plaintiff dated August 29, 2008,
in which Ojserkis stated "that [plaintiff] was 'made aware prior
to her resignation' that Deborah's PPEC began a focused review of
certain of [her] clinical practices including documentation
issues."
The Board explained:
Given that factual predicate . . . , the Board
takes the position that it clearly has a
statutory obligation to post a description on
[plaintiff's] physician profile regarding the
resignation. See N.J.S.A. 45:9–22.23(a)(8).
Alternatively stated, the Board maintains that
a resignation of staff privileges that occurs
during the pendency of an investigation
related to a physician's clinical practice,
11 A-0244-13T2
where the physician is aware of the
investigation prior to submitting her
resignation, is a resignation "for reasons
related to the practitioner's competence" and
is thus required to be posted on the physician
profile. Id.While the Board is certainly cognizant
of [plaintiff's] claim that she resigned for
personal reasons that had nothing to do with
any investigation of her practice, and her
further claim that she only learned of the
investigation of her practice after she had a
meeting with the hospital's CEO, [plaintiff's]
claim is directly at odds with the position
that has been taken by Deborah. In essence,
then [plaintiff] is asking that the Board
referee a dispute between her and Deborah, and
that the Board act as a fact-finder to resolve
that dispute before acting in accordance with
its statutory obligation to post a description
regarding the resignation on the profile. The
Board specifically declines to act in that
capacity, finding nothing in the relevant
statutes that would require the Board to act
in that capacity.
On November 5, 2008, plaintiff filed a verified complaint and
an order to show cause against Deborah and the Board seeking
injunctive relief to restrain the Board from changing her physician
profile and ordering Deborah to retract its report. On February
4, 2009, the court issued a temporary injunction and, on April 6,
2009, a preliminary injunction. In a written opinion, the court
explained that without deciding "whether [p]laintiff possessed any
knowledge of her review before departing Deborah[,]" the court was
satisfied that "a certain degree of awareness is necessary" in
12 A-0244-13T2
order "for [N.J.S.A.] 26:2H-12.2(b)(a)(3) to apply." According
to the court, although "[t]he statute itself does not require that
the facility give notice that the physician is under
investigation[,] . . . due process consideration[s] require the
statute to be interpreted to require some cognizance by the
physician in order for the statute to impose the significant
sanction its operations imposes."
On July 22, 2009, plaintiff amended her complaint to add
McGrath, Ojserkis, and other unknown defendants, as well as tort
claims and claims under the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42. On April 30, 2010, the court granted
Ojserkis' motion to dismiss the claims against her, finding that
Ojserkis' notice to the Board on behalf of Deborah was absolutely
protected by the litigation privilege and thus not actionable. On
January 5, 2011, plaintiff and the Board reached a confidential
settlement agreement, resulting in the Board's dismissal from the
litigation.5 On March 24, 2011, plaintiff filed a second amended
verified complaint adding Ernst as a defendant.
After extensive motion practice related to various discovery
disputes, defendants moved for summary judgment on October 12,
2012. In opposing the motion, plaintiff certified that "at no
5
Ultimately, no change was made to plaintiff's physician profile.
13 A-0244-13T2
time during [her] employment at Deborah nor during the period
following [her] employment at Deborah was [she] ever notified or
made aware about this alleged review, committee meeting, or ever
notified in any way regarding Deborah's alleged review process."
She certified that "in his less than two minute call to [her,]"
Gallagher
did not inform [her] of any problems with
[her] own work but that [she] interpreted his
brief comment to refer to the problems which
existed throughout the institution at that
time. Because [she] was aware of retaliatory
efforts on the part of Deborah to harm
physicians after their resignation, and had
not informed anyone even then of [her] plans,
[she] determined to make [her] resignation
effective immediately as [she] had already
committed [her] position at [Penn].
Following oral argument, in a May 13, 2013 written decision,
the court granted defendant's motion and dismissed plaintiff's
second amended complaint with prejudice. The court ruled that
"the Cullen Act, . . . N.J.S.A. 26:2H-12.2b[,] expressly provides
that a health care entity shall notify the division in writing if
a health care professional employed by the entity resigns while
the professional's patient care is being reviewed by the employer"
regardless "of whether notice of the review was provided to the
health care professional." The court observed that
[t]o conclude otherwise would allow the health
care professional's resignation to prevent the
hospital from making the report of the
14 A-0244-13T2
investigation of the professional's patient
care. This would mean that a health care
professional who had the slightest inkling an
investigation was underway, but who had not
been formally advised of same by the health
care entity, could thwart the investigation
by ending his or her employment. This would
effectively serve to defeat one of the
purposes of the Cullen Act, "the weeding out
of problem practitioners."
The court rejected "plaintiff's contention that she was not under
review when she resigned[,]" finding that the "focused review"
undertaken by defendant into whether "[plaintiff] was performing
unnecessary medical procedures and misrepresenting outcome data
. . . fell within the ambit of N.J.S.A. 26:2H-12.2b[.]"
The court then addressed each of plaintiff's claims
individually. As to counts one and two of the amended complaint,
the court determined that plaintiff was not entitled to permanent
injunctive relief because "Deborah was required by the Cullen Act
to file the report with [the Board]." Further,
plaintiff will not suffer any immediate
irreparable harm if Deborah does not retract
its . . . report [to the Board] because since
the time of the reporting, plaintiff's income
has increased, she cannot identify anyone who
thinks less of her as a result of the
reporting, she is in good standing in the
hospitals where she currently works, and she
has no plans to apply for credentials at any
other hospital in the near future.
As to count six, alleging Deborah maliciously prosecuted
plaintiff in violation of N.J.S.A. 2A:47A-1 by making the report
15 A-0244-13T2
to the Board and responding to credentialing requests from other
institutions, the court determined that the litigation privilege
and the Cullen Act, N.J.S.A. 26:2H-12.2b(g), immunized defendants
from plaintiff's claims. The court noted that while the Cullen
Act "makes exceptions to immunity" in cases "where the entity made
the report with malice and bad faith[,]" plaintiff failed to
present "any evidence whatsoever of malice or bad faith on the
part of Deborah." Likewise, the court determined "that plaintiff
failed to establish that Deborah instituted its investigation with
malice" or "that there was an absence of probable cause for the
proceeding."
As to counts four, five and seven, alleging defendants
published three defamatory communications, specifically the report
to the Board, the McKeever Memo and other information provided to
other credentialing bodies, the court concluded that the alleged
defamatory statements were true and have not "prevented plaintiff
from securing other employment in her chosen profession."
Moreover, according to the court, because "the alleged defamatory
statements involve matters of public concern[,]" requiring
plaintiff to show "actual malice[,]" plaintiff's claims failed
because she "failed to show defendants published any of them with
actual malice or that any of the statements . . . can be construed
as 'defamatory.'"
16 A-0244-13T2
The court also determined that in the absence of evidence of
defamation, fraud, deceit, or misrepresentation, plaintiff failed
to make out a prima facie case for tortious interference with
prospective economic advantage as alleged in counts three and
eleven, particularly since plaintiff could not establish loss of
prospective gain. In addition, finding no evidence to support any
of plaintiff's LAD claims, the court dismissed the remaining counts
of the complaint.6 A memorializing order was entered on June 3,
2013.
The court denied plaintiff's motion for reconsideration in
an oral decision rendered on August 2, 2013. The court determined
"[p]laintiff has not provided the [c]ourt with a particularly
compelling reason for the [c]ourt to reconsider its decision[.]"
The court explained:
Plaintiff has made absolutely no new
arguments in this motion for reconsideration,
instead, simply has revised her arguments that
she previously made but varies her emphasis
on the Cullen Act and other evidence.
. . . [T]he [c]ourt had adequately and
properly addressed all the arguments plaintiff
now rehashes in this motion for
reconsideration.
More importantly, plaintiff does not
qualify for reconsideration because there is
6
The court dismissed count ten alleging civil assault and a
violation of the LAD, finding "absolutely no evidence to establish
a claim of assault in this matter."
17 A-0244-13T2
no evidence to suggest the [c]ourt's decision
was palpably wrong or irrational or that the
probative evidence was ignored.
A memorializing order was entered on August 15, 2013, and this
appeal followed.
II.
On appeal, plaintiff argues that the "court erred because it
failed to construe the proofs in plaintiff's favor per Brill,
supra, ignored the conclusions a reasonable factfinder can make
based on the proofs, and failed to apply the plain terms of the
Cullen Act to these reasonable conclusions." Plaintiff also
asserts the court "erred in ruling that the 'litigation privilege'
immunizes Deborah and its agents as a matter of law." According
to plaintiff, on the contrary, "Deborah and its agents are not
immune as a matter of law for what a reasonable jury could find
has been the publication of malicious lies designed to damage
plaintiff's reputation and ability to compete." Additionally,
plaintiff asserts that "[s]ummary judgment should not have been
granted without plaintiff having had the chance to depose Dr. Al-
Bassam[,]" the author of Medical Peer Review's reports which were
disputed by plaintiff's expert.7
7
During oral argument, plaintiff withdrew her challenge to the
court's dismissal of her LAD claims. Accordingly, we deem those
claims waived.
18 A-0244-13T2
We review a ruling on a motion for summary judgment de novo,
applying the same standard governing the trial court. Templo
Fuente De Vida Corp. v. National Union Fire Ins. Co., 224 N.J.
189, 199 (2016). Thus, we consider, as the motion judge did,
"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, supra, 142 N.J.
at 540. If there is no genuine issue of material fact, we must
then "decide whether the trial court correctly interpreted the
law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman,
430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We
review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013). "[F]or mixed questions of law and fact, [we] give[]
deference . . . to the supported factual findings of the trial
court, but review[] de novo the lower court's application of any
legal rules to such factual findings." State v. Pierre, 223 N.J.
560, 577 (2015) (quoting State v. Harris, 181 N.J. 391, 416
(2004)).
This standard compels the grant of summary judgment "if the
pleadings, depositions, answers to interrogatories and admissions
19 A-0244-13T2
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). "To defeat a motion for summary judgment,
the opponent must 'come forward with evidence' that creates a
genuine issue of material fact." Cortez v. Gindhart, 435 N.J.
Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue
Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)),
certif. denied, 220 N.J. 269 (2015). "[C]onclusory and self-
serving assertions by [a party] are insufficient to overcome the
motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005).
A trial court's order on a motion for reconsideration will
not be set aside unless shown to be a mistaken exercise of
discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).
Reconsideration should only be granted in those cases in which the
court had based its decision "upon a palpably incorrect or
irrational basis," or did not "consider, or failed to appreciate
the significance of probative, competent evidence." Ibid.(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)). A motion for reconsideration must "state with specificity
the basis on which it is made, including a statement of the matters
or controlling decisions which counsel believes the court has
20 A-0244-13T2
overlooked or as to which it has erred[.]" R. 4:49-2. It is
against these standards that we evaluate defendants' substantive
arguments.
The Cullen Act requires health care entities to notify the
Board of Medical Examiners when physicians in their employ resign
while under review for their patient care or conduct adversely
affecting patient care or safety. N.J.S.A. 26:2H-12.2b(a)(3).
N.J.A.C. 13:45E-3.1(a)(4) provides:
The health care professional voluntarily
relinquishes any partial clinical privilege or
authorization to perform a specific procedure
if:
i. Whether or not known to the health care
professional, the health care entity is
undertaking an investigation or a review
of:
(1) The quality of patient care
rendered by the health care
professional to determine if the care
could have had adverse consequences to
the patient[.]
Similarly, under N.J.S.A. 26:2H-12.2b(h), notification provided
to the Board pursuant to N.J.S.A. 26:2H-12.2b(a)(3) does not
require notice to "the health care professional who is the subject
of [the] notice[.]"
N.J.S.A. 26:2H-12.2c also requires a health care entity to
disclose, in response to inquiries by other health care entities,
21 A-0244-13T2
whether it had made a disclosure to the licensing board pursuant
to N.J.S.A. 26:2H-12.2b relating to the health care professional
in question. Specifically, N.J.S.A. 26:2H-12.2c(a)(1) provides:
a. A health care entity, upon the inquiry
of another health care entity, shall
truthfully:
(1) disclose whether, within the seven
years preceding the inquiry, it provided
any notice to the division . . . with
respect to the health care professional
about whom the inquiry has been made,
providing a copy of the form of
notification and any supporting
documentation that was provided to the
division, a professional or occupational
licensing board in the Division of
Consumer Affairs in the Department of Law
and Public Safety, or the review panel[.]
If a health care entity fails to make the requisite
disclosures, it is subject to the imposition of penalties as
determined by the Department of Health. N.J.S.A. 26:2H-12.2c(d);
N.J.S.A. 26:2H-12.2b(f). However, if the "health care entity[]
or any employee" complies with the reporting mandate, and makes a
disclosure "in good faith and without malice," the entity or
employee will not be "liable for civil damages in any cause of
action arising out of the provision or reporting of the
information." N.J.S.A. 26:2H-12.2b(g); N.J.S.A. 26:2H-12.2c(c).
Although the terms "good faith" and "malice" were not defined
in the Cullen Act, good faith has been defined as "honesty of
22 A-0244-13T2
purpose and integrity of conduct with respect to a given subject."
Marley v. Palmyra, 193 N.J. Super. 271, 293-94 (App. Div. 1983)
(quoting Smith v Whitman, 39 N.J. 397, 405 (1963)). Good faith
equates "with fidelity, loyalty[,] . . . bona fides[,]" and
"honesty of intention and freedom from knowledge of circumstances
which ought to put the holder upon inquiry." Id. at 294 (quoting
Siano v. Helvering, 13 F. Supp. 776, 780 (D.N.J. 1936))). The
inquiry is not, however, limited to defendants' subjective belief.
"[T]he applicable standard of good faith involves both 'objective'
and 'subjective' elements." Endress v. Brookdale Cmty. Coll., 144
N.J. Super. 109, 134 (App. Div. 1976).
In Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269 (App. Div.
2014), we defined malice in the context of the immunity provided
to members of hospital review committees. See N.J.S.A. 2A:84A-
22.10. We stated that "the conventional meaning of that term
suggests that the sanctioned physician must prove that the hospital
defendants acted, in essence, either with ill will, without just
cause, or with a reckless disregard of the truth of the facts
regarding the physician's quality of care." Hurwitz, supra, 438
N.J. Super. at 299-300.
In the present case, we are satisfied that defendants acted
"in good faith and without malice," and we discern no reason to
reverse the grant of summary judgment or denial of plaintiff's
23 A-0244-13T2
motion for reconsideration. While there is no doubt that plaintiff
had disagreements with members of Deborah's medical staff,
including DeBerardinis and Ng, the source of the complaints,
Deborah's actions leading to the review of her patient care were
objectively reasonable and entitles defendants to the immunity
provided by the Cullen Act.
Contrary to plaintiff's assertion, she was under review for
her patient care at the time of her resignation. Deborah was not
required to disclose the review to plaintiff, and the Cullen Act
required Deborah to report her resignation or be subjected to
civil penalties. N.J.S.A. 26:2H-12.2c(d); N.J.S.A. 26:2H-
12.2b(f). Plaintiff need not be aware of the review in order for
her resignation to be a triggering event mandating the requisite
notification, and notice of the report to the Board need not be
provided to plaintiff. N.J.S.A. 26:2H-12.2b(h).
In addition to the notification to the Board, in response to
inquiries by other health care entities, Deborah was required
under N.J.S.A. 26:2H-12.2c(a)(1) to disclose whether it had made
such a notification to the Board within the seven years preceding
the inquiry, providing a copy of the form of notification and any
supporting documentation that was provided. The McKeever Memo and
McGrath's response were good faith attempts at compliance with
those statutory requirements.
24 A-0244-13T2
Finally, plaintiff failed to show actual malice, as required
by the statute. "A bare allegation of malice is insufficient to
defeat immunity if the defendant acted in an objectively reasonable
manner." Connor v. Powell, 162 N.J. 397, 409 (2000). Deborah
acted with due care in the evaluation of the accusations leveled
against plaintiff. Deborah acknowledged that the accusations
could have been motivated by personal animosity and engaged an
external reviewer to eliminate the possibility of a tainted peer
review. This methodology promoted the dual interests of both the
patients and plaintiff. The timing of plaintiff's resignation was
unfortunate in that it triggered the statutorily required
reporting.
The court predicated its dismissal of the complaint on its
ruling that defendants were protected by both the immunity provided
by the Cullen Act and the common law litigation privilege. The
litigation privilege protects "[c]ertain statements made in the
course of judicial, administrative, or legislative proceedings
. . . because of 'the need for unfettered expression critical to
advancing the underlying government interest at stake in those
settings.'" Zagami, LLC v. Cottrell, 403 N.J. Super. 98, 104
(App. Div. 2008) (quoting Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539, 563 (1990)). "[T]he litigation privilege has been
expanded . . . to encompass so-called quasi-judicial proceedings"
25 A-0244-13T2
as well as "statements made . . . in connection with a judicial
or quasi-judicial proceeding." Id. at 105-06. In addition, the
privilege is not "limited necessarily to statements made under
oath." Id. at 107.
In Cottrell, supra, after analyzing the application of the
privilege in a variety of contexts, we concluded:
We discern from these cases the guiding
principle that, outside the strictly judicial
setting, application of the litigation
privilege will depend on the nature of the
administrative proceeding, the function
performed, and the pertinency of the allegedly
defamatory statement to the issues and
contentions to be resolved. As to the former,
we look especially to the organic act
governing the administrative agency to
determine the presence of such procedural
safeguards as notice, hearing, neutrality,
finality, and review and to ascertain whether
the proceeding affects only purely private
interests or is imbued with a greater public
significance. Of course whether a defendant
in a defamation action is entitled to assert
the absolute privilege for statements made
during the course of litigation is a question
of law.
[Id. at 108-09.]
Here, there is little question that the notification to the
Board triggered an action covered by the litigation privilege.
Plaintiff was provided notice and an opportunity to be heard before
a neutral review board, as well as the opportunity to appeal the
Board's determination prior to any change to her physician profile.
26 A-0244-13T2
This procedure provided sufficient safeguards "to protect
plaintiff from the allegedly false and malicious statements
uttered by defendants, and to therefore shield defendants with the
cloak of absolute immunity." Id. at 110. This privilege
immunizes defendants from tort claims arising out of the
notification made to the Board, with the exception of the malicious
prosecution claim. See Brien v. Lomazow, 227 N.J. Super. 288, 305
(App. Div. 1988) (holding "immunity exists unless plaintiffs can
make a colorable claim of malicious prosecution.").
However, in light of our determination regarding the
applicability of the statutory immunity of the Cullen Act, we are
satisfied that the policy behind the enactment of the Cullen Act
also protects defendants from recovery for a malicious prosecution
claim. The fact that defendants had a legal duty to report the
information compels that conclusion. Because all the counts allege
related torts and are predicated upon the same conduct, defendants
are shielded from all civil liability arising out of the provision
or reporting of the information, and plaintiff is not entitled to
injunctive relief. Therefore, plaintiff's entire complaint was
properly dismissed.
Affirmed.
27 A-0244-13T2