NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1837-18T1
DANIEL BLAND,
Plaintiff-Appellant,
v.
K.R., and NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendants,
and
LISA JORDAN-SCALIA, D.O., RARITAN FAMILY HEALTH CARE, P.A., MANISH B. VIRADIA, M.D., HUNTERDON ORTHOPEDIC INSTITUTE, P.A., 1 RICHARD HALL COMMUNITY MENTAL HEALTH CENTER, and LAURA KOLLER, MA, LAC, 2
Defendants-Respondents. ____________________________________
1 Hunterdon Orthopedic Institute is now known as Mid Jersey Orthopaedics. 2 Laura Koller was improperly pled as Laura Keller, MA, LAC. Argued February 12, 2020 – Decided May 15, 2020
Before Judges Whipple, Gooden Brown, and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1077-14.
Michael B. Zerres argued the cause for appellant (Blume, Forte, Fried, Zerres & Molinari, PC, attorneys; Michael B. Zerres, of counsel and on the briefs; Ashley A. Smith, on the briefs).
Gary L. Riveles argued the cause for respondents Lisa Jordan-Scalia, D.O. and Raritan Family Health Care, P.A. (MacNeill, O'Neill & Riveles, LLC, attorneys; Gary L. Riveles, of counsel; Anelia Dikovytska Brown, on the brief).
John P. Shusted argued the cause for respondents Manish B. Viradia, M.D. and Hunterdon Orthopedic Institute P.A. (German, Gallagher & Murtagh, attorneys; John P. Shusted, of counsel and on the brief).
Francesco Taddeo argued the cause for respondents Richard Hall Community Health Center and Laura Koller, MA, LAC.
PER CURIAM
Plaintiff appeals from three orders dated September 18 and 28, 2018, and
October 26, 2018, granting summary judgment to defendants Lisa Jordan-Scalia,
D.O. and her employer Raritan Family Health Care, P.A. (RFHC); Manish B.
Viradia, M.D. and his employer Hunterdon Orthopedic Institute, P.A. (HOI);
A-1837-18T1 2 and Laura Koller, MA, LAC and her employer Richard Hall Community Mental
Health Center (RHCMHC), as well as three orders denying reconsideration
dated October 30, 2018, and December 3 and 12, 2018. We affirm.
This case arises out of an automobile accident. On May 20, 2014,
defendant K.R. (Kay)3 was driving and drifted into the opposite lane, where she
collided head-on with plaintiff Daniel Bland, causing him serious orthopedic
injuries. Kay was cited for the accident and pled guilty to unsafe driving.
Prior to the accident, Kay was seen by various doctors and mental
healthcare professionals: Dr. Jordan-Scalia, a general practitioner; Dr. Manish
Viradia, a neurologist; and Laura Koller, a therapist. Plaintiff filed suit on
August 6, 2014, naming Kay as the defendant, but later added Jordan-Scalia and
her employer RFHC, as well as Viradia and his employer HOI, as defendants,
alleging they were negligent in the diagnosis of Kay's condition and deviated
from accepted standards in rendering medical care, which resulted in plaintiff's
injuries.
3 We use the defendant driver's initials and a pseudonym to ensure confidentiality throughout this opinion because the record indicates she was subject to civil commitment. R. 1:38-11. A-1837-18T1 3 Plaintiff and Kay settled, and the matter as to Kay was dismissed with
prejudice. The remaining defendants' initial motions to dismiss pursuant to Rule
4:6-2 for failure to state a claim upon which relief could be granted were denied.
Plaintiff filed a second amended complaint—this time alleging defendants
Jordan-Scalia, RFHC, Viradia, and HOI were "negligent and careless in their
failure to report [Kay's] condition of recurrent periods of unconsciousness or
impairment or loss of motor coordination" to the Director of the New Jersey
Motor Vehicle Commission (MVC) pursuant to N.J.S.A. 39:3-10.4, which
resulted in plaintiff's injuries. The initial common law negligence claims against
Jordan-Scalia and Viradia and their employers contained in the first amended
complaint were not included in the second amended complaint. Plaintiff later
filed a third amended complaint adding licensed therapist Laura Koller and her
employer RHCMHC. The complaint against Koller and the two doctors re-
asserted the failure to report Kay's condition to the MVC pursuant to N.J.S.A.
39:3-10.4.
In her deposition, Jordan-Scalia testified Kay was a prior patient who left
Jordan-Scalia's practice for insurance reasons, but who had recently come back
to see her for a physical in March 2014. Kay, who had a history of depression
A-1837-18T1 4 and anxiety, reported being prescribed Prozac and Klonopin. At the end of the
physical, Kay stated she thought she had been having seizures for the past year.
Based on this self-report, Jordan-Scalia sent Kay to see neurologist
Viradia for an EEG4 and full work-up to confirm a diagnosis. Jordan-Scalia did
not diagnose or treat for seizures as part of her practice, but testified she advised
Kay not to drive. Kay told Jordan-Scalia she had already ceased driving, and in
fact had her boyfriend drive her to the physical that day. While Jordan -Scalia
was aware of the statutory requirement to report a patient with seizures to the
MVC, she did not do so here because it was a self-report and there was no
diagnosis.
When Jordan-Scalia next saw Kay a couple months later on May 12,
Jordan-Scalia had received Viradia's initial assessment; it included a list of tests
ordered but offered no definitive diagnosis. Kay's boyfriend drove her to the
appointment, and Kay told Jordan-Scalia her boyfriend drove her everywhere.
Kay reported she had been in a psychiatric hospital for three weeks, where she
was diagnosed with bipolar affective disorder. Kay was now taking Haldol,
Topamax, Trileptal, Trazodone, and Cogentin, all prescribed by a psychiatrist at
the psychiatric hospital.
4 EEG stands for electroencephalogram. A-1837-18T1 5 Kay visited Jordan-Scalia again a few days later on May 20, the day of the
accident; Kay asked for a refill of psychiatric medicine to hold her over until her
next psychiatrist appointment on May 28. Kay's medical record noted she
agreed to go to a psychiatric emergency center "if any suicidal or homicidal
ideations occur," which Jordan-Scalia stated is something she may say to a
patient on psychiatric medications, but she did not recall specifically why she
told Kay at that visit. Kay reported she drank a couple of alcoholic beverages
daily, and while Jordan-Scalia did not notice any signs of alcohol consumption
during the visit, it was her practice to warn patients of potential interaction
between alcohol and their medications.
As for Viradia, he first saw Kay at HOI on April 7, on Jordan-Scalia's
referral, "to rule out [the] possibility of seizures." Kay was accompanied by her
boyfriend to the appointment, and they discussed how he was driving her
everywhere at that time. Viradia testified in his deposition that while not
documented in the record, he told Kay it was important she not drive, and stated
it was standard practice for him to advise his patients as such.
Viradia ordered tests and listed "convulsions" and "simple partial
seizures" as a primary diagnosis, but testified it was "an impression . . . [i]t is
not a diagnosis. When you initiate a workup, there is no diagnosis," and testified
A-1837-18T1 6 those codes were used so insurance would authorize the test. He stated "one
cannot diagnose seizure or epilepsy on seeing a patient one time," and unless he
put something pertinent to the epilepsy spectrum in the diagnosis spot on the
form, Kay "would never get any test that she needed to rule it out or rule it in."
Viradia also listed multiple "differential" diagnoses, which included
insomnia, alcohol-related issues, recreational drug use, prescription drug use not
disclosed to him, sleep deprivation, psychiatric problems, and pseudoseizures;
he testified "seizure was the last thing I was thinking. However, [Kay] was sent
to me to rule that out and that was my job to do so." He indicated Kay told him
she was only on Prozac and he did not know if she was on any medication to
treat seizures.
Viradia had reported patients to the MVC in the past, likely over 100
times, by fax or mail, and those decisions were made on a case by case basis;
here, Kay's boyfriend drove her and reported he was taking her to appointments,
and Viradia asserted he was told that Kay was no longer driving. A couple
months after the accident, the results of the tests ordered by Viradia for Kay
turned out to be normal.
Koller was a licensed associate counselor at RHCMHC who began seeing
Kay on March 12, 2014, and saw her a total of three times between then and the
A-1837-18T1 7 May 20 accident. Kay's initial comprehensive assessment at RHCMHC
indicated Kay reported delusions, amnesia, and sleepwalking.
Kay reported she was blacking out, had been violent, and exhibited signs
of psychosis while she was taking prednisone for a misdiagnosis of lupus. An
April 15 note states a "friend" of Kay's called to tell Koller that Kay had been
experiencing "petit seizures and instances of blacking out and not remembering
certain things she's done." Koller also learned at that time that Kay had been
admitted as an inpatient to a psychiatric hospital and would not make her next
appointment; the record indicates Kay was admitted after trying to stab her
boyfriend.
Upon discharge from the hospital, Kay was referred for follow up
psychiatric treatment because she was brought to the hospital intoxicated,
"express[ing] thought[s] of wanting to kill herself," and "drinking more than
usual . . . and has a history of blackouts and some seizure episodes." Kay
"reported drinking [three to four] glasses of wine in order to 'heal her depression'
in addition to taking her prescribed Klonopin."
Koller next saw Kay on May 20, the day of the accident, from around
2:00-2:50 p.m., where Kay was "tearful" and said her friends and parents were
concerned about her behavior at night and her sleepwalking. Kay had been
A-1837-18T1 8 kicked out of her house by her sons and ex-boyfriend and was currently living
with her ex-husband. Koller referred Kay for a substance abuse evaluation and
noted she
currently struggles with depression and many medical issues. Some not diagnosed. [Kay] was hospitalized three times during the past month and reported that friends and family members are accusing her of drinking when she is not. [Kay] said that she has a problem when she drinks, but she does not have a drinking problem.
The June 11 summary of treatment stated "[Kay] has had a history of
blackouts, psychotic behavior, emotional volatility and substance use issues.
[Koller] had difficulty detecting [the] origin of [Kay]'s symptoms, alcohol use,
medication and/or abuse. [Kay] agreed to [a] higher level of care . . .
evaluation."
As for Kay, she testified in her deposition she had no recollection of the
accident. She stated she went to work, to two doctor's appointments, and then
at around 2:30 p.m. met a friend at a deli, after which she drove to Pennsylvania;
the last thing she remembered was stopping for gas and calling her ex-husband.
Kay stated she was taking Trileptal, Baclofen, and a blood pressure
medication. She stated Trileptal was a seizure medication prescribed to her, but
did not remember who prescribed it. Kay asserted she did not remember the last
A-1837-18T1 9 time she blacked out before the accident, did not recall anything about blackouts,
and had not blacked out since. In response to a question asking whether a
blackout might be what caused the accident, she agreed a blackout might be an
explanation.
Kay recalled little about her conversations with Jordan-Scalia and Viradia.
She recalled filling out the initial intake application for RHCMHC, but did not
recall why, other than she had frequent falls, then later stated it was because she
was depressed. Kay did not recall being intoxicated during an earlier November
2013 incident where she received a laceration, although medical records
suggested her blood alcohol level was 0.182. Nor did she recall the
circumstances of her involuntary commitments during April and May of 2014,
or the circumstances surrounding the police being called because of her
interactions with her boyfriend.
Kay remembered being very stressed between March and May 2014
because she did not feel well. She stated she drove "[v]ery little" and made an
effort to have her boyfriend drive her during this time because she didn't feel
well, but would drive occasionally "[i]f [she] felt okay." She answered in the
negative when asked if she "believe[d] if the [MVC] had temporarily suspended
your license you would have driven a car?"
A-1837-18T1 10 Damian F. Rigatti, D.O., plaintiff's expert, opined that Jordan-Scalia
deviated from the accepted medical standard of care because she did not file a
report to the MVC on Kay's first self-report of a seizure, and because there was
no written record that Jordan-Scalia advised Kay not to drive. Rigatti conceded,
however, that while Kay self-reported a history of more than one seizure, she
had never been treated for seizures.
Rigatti noted the medications Kay had refilled through Jordan-Scalia had
side effects including impaired concentration, impaired driving skills, seizures,
drowsiness, and suicidal ideation, although he later clarified Jordan-Scalia only
refilled the Trileptal, which was a mood stabilizer prescribed by a different
doctor. Rigatti acknowledged hospital records questioned whether Kay
intentionally drove into plaintiff's vehicle as a suicide attempt, and opined her
medications "can increase suicidality."
Rigatti opined Jordan-Scalia should also have reported Kay to the MVC
because her medications could result in impairment and cause an accident. He
asserted that given Kay's "multiple encounters with psychiatric admissions," and
"[e]rratic, sometimes violent, behavior," in March and April, her ability to
follow instructions not to drive should have been perceived as unreliable.
A-1837-18T1 11 His opinion of what caused Kay to swerve into the other lane was
equivocal. Rigatti said a seizure was "a possible diagnosis," as was blacking
out, or "syncope," falling asleep at the wheel, and suicidality.
Richard Lechtenberg, M.D., a neurology expert, prepared an expert
neurological report for plaintiff. He noted Kay had numerous ailments, and as
of April 7, was taking Prozac for agitated depression or possibly bipolar
affective disorder, and as of May 12 was prescribed Haldol, Topamax, Trileptal,
Trazadone, and Cogentin, and on May 20 was prescribed Trileptal and Baclofen.
Dr. Lechtenberg opined, based only on the records provided, that Kay's
appropriate diagnoses at the time of the accident were agitated depression and
complex partial seizures.
He opined Kay was being tested for episodes of altered consciousness or
loss of consciousness at the time of the accident, and may have just started on
anti-epileptic medication and may not have been adequately medicated to
suppress seizure activity, "if in fact seizure activity was the basis for her
disturbances of consciousness." It was his opinion that it was "clearly
irresponsible" for her to be driving, whether her impairment was because of a
seizure disorder or an affective disturbance. He asserted her episodes of altered
consciousness were "a sufficient basis for alerting the [MVC] to suspend her
A-1837-18T1 12 driver's license until these episodes were fully eliminated," and that it was a
deviation from the accepted standards of care not to do so.
While he contended Kay was diagnosed by Viradia, Jordan-Scalia, and
Koller as having a seizure disorder, he conceded a "differential diagnosis" is
only a possible diagnosis, where a regular diagnosis would be one supported by
evidence. He noted that while some of the medications Kay was prescribed are
also antiepileptics, he acknowledged those drugs were not prescribed
specifically for a seizure disorder and that Trileptal in particular was prescribed
off-label for a variety of things. He opined that it was a deviation from the
standard of care for Viradia not to have established Kay was on antiepileptic
medications when he saw her, and if he established she was not, it would have
been a deviation not to prescribe an antiepileptic and not to report her to the
MVC.
A third plaintiff's expert, Steven A. Fayer, M.D., P.C., a psychiatrist,
prepared an expert report to offer an opinion as to the care given Kay by Koller
and RHCMHC. Fayer reviewed Kay's inpatient psychiatric records from her
hospitalization on April 27, to May 3, 2014. Those records stated Kay had a
five-year history of depression, and her first hospital admission was "a few
A-1837-18T1 13 months ago" when she threatened her boyfriend with a knife and police were
called, which she denied remembering or even that it happened.
The records reported Kay "may have seizures in the past, not sure," with
a diagnosis of bipolar disorder, alcohol dependence, and noncompliance. Fayer
stated this diagnosis was a "dangerous combination of circumstances." There
was also a note in the records stating Kay took 0.5 mg of Klonopin and muscle
relaxers before the accident, which Fayer stated could cause drowsiness.
Fayer noted Kay had a history of alcohol use, minimized her alcohol
abuse, and records showed she "has experienced symptoms of withdrawal when
attempting to discontinue use." The May 4 hospital discharge summary
indicated she was "anxious, nervous, depressed, withdrawn," but compliant with
treatment, and that day seemed better, wanted to be discharged, and did not
report homicidal or suicidal ideations or hallucinations. The final diagnosis was
bipolar disorder and alcohol dependence, and she was to be discharged to an
outpatient clinic.
Fayer opined it was a deviation from good and accepted mental health
practices for Koller not to have contacted the MVC about Kay's "history of
seizure disorders and/or alcohol abuse," although he retracted that statement in
his deposition upon a reading of the statute. Fayer conceded there were no
A-1837-18T1 14 codified standards, but opined it would be good and acceptable practice to make
sure someone is not driving that possibly has a seizure disorder, blackouts, and
is drinking; although Kay was not specifically diagnosed with seizure disorder,
he said Koller was aware of possible seizures from the phone call she received
from Kay's unidentified "friend."
After discovery ended, defendants Jordan-Scalia and RFHC moved for
summary judgment, arguing failure to report under N.J.S.A. 39:3-10.4 did not
create a private cause of action—rather, the statute simply calls for a fine.
Defendants Viradia and HOI also moved for summary judgment, as did
defendants Koller and RHCMHC.
The trial court agreed with defendants that N.J.S.A. 39:3-10.4 does not
confer a private cause of action, and additionally, the alleged failure to notify
the MVC of the alleged seizure disorder "cannot, under any reasonable basis, be
determined to be . . . a proximate cause of this accident." The trial judge granted
Jordan-Scalia and RFHC, as well as Viradia and HOI, summary judgment.
The trial judge also granted summary judgment to Koller and RHCMHC
after finding Koller was not a physician, but rather a social worker who "got
lumped in with" the other defendant-physicians with the failure to follow the
statute, which only mandates reporting by treating physicians. The judge noted
A-1837-18T1 15 the claim at issue was "not a general negligence claim," but rather a clai m of
carelessness and negligence in failure to report Kay's condition to the MVC
pursuant to the statute and there was "no possible basis for liability against
[Koller] or her employer regardless of the proximate cause issue, which, in any
event, I find doesn't exist. . . ."
Plaintiff moved for reconsideration of the summary judgment motions as
to all defendants, asserting as his basis to do so that 1) the court should have
considered an unpublished Appellate Division opinion, 5 and 2) that Kay testified
during her deposition she would not have driven a car if the MVC had suspended
her license. The motions for reconsideration were denied.
This appeal followed.
I.
We review summary judgment de novo, using the same standard as that
employed by the trial court. Hinton v. Meyers, 416 N.J. Super. 141, 146 (App.
Div. 2010) (citing Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div.
2003)). Rule 4:46-2 provides that a court should grant summary judgment when
the pleadings, depositions, answers to interrogatories and admissions on file,
5 Corso v. State, No. A-2860-06 (App. Div. May 27, 2009). A-1837-18T1 16 along with any affidavits, show there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
[W]hether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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).]
To sustain a cause of action for negligence, the plaintiff must establish the
four elements of: 1) duty of care, 2) breach of that duty, 3) proximate cause, and
4) damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citing Polzo v. Cnty.
of Essex, 196 N.J. 569, 584 (2008)). The plaintiff must do so "by some
competent proof." Ibid. (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014)).
The question of whether a duty exists is a matter of law. Carvalho v. Toll
Bros., 143 N.J. 565, 572 (1996) (citations omitted). Foreseeability of the injury
is a "crucial element" when determining whether the imposition of a duty is
appropriate; "[o]nce the foreseeability of an injured party is established, . . .
considerations of fairness and policy govern whether the imposition of a duty is
warranted." Id. at 572-73 (second alteration in original) (quoting Carter
A-1837-18T1 17 Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95 (1994)).
"The analysis is both very fact-specific and principled; it must lead to solutions
that properly and fairly resolve the specific case and generate intelligible and
sensible rules to govern future conduct." Vizzoni v. B.M.D., 459 N.J. Super.
554, 568 (App. Div. 2019) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J.
426, 439 (1993)). Assessing fairness and policy requires consideration of
several factors, including the relationship of the parties, the nature of the
attendant risk, the opportunity and ability to exercise care, and the public interest
in the proposed solution. Carvalho, 143 N.J. at 573 (citing Hopkins, 132 N.J. at
439).
Plaintiff argues Jordan-Scalia, Viradia, and their respective employers
owed plaintiff a duty under N.J.S.A. 39:3-10.4 to report Kay to the MVC for her
self-reported seizures, and that they breached that duty. We disagree.
N.J.S.A. 39:3-10.4 provides that:
Each physician treating any person [sixteen] years of age or older for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments, shall, within [twenty-four] hours after his determination of such fact, report the same to the Director of the [MVC]. . . .
A-1837-18T1 18 [(Emphasis added).]
N.J.S.A. 39:3-10.5 also requires that the individual suffering from the symptoms
enumerated in section 10.4 must themselves also report the existence of their
condition to the MVC at the time they apply for an initial driver's license or for
a renewal of an existing license. There is a $50 fine for failure to report for both
the physician and the individual under N.J.S.A. 39:3-10.8.
N.J.S.A. 39:3-10.4 provides no basis for claims of negligence against the
medical defendants, and there is no binding case law establishing a cause of
action for the violation of N.J.S.A. 39:3-10.4 to protect against the physical
harm to others that may result from a driver whose condition makes it unsafe for
them to drive.
Further, a plain reading of the statute indicates it requires a report to the
MVC where the enumerated symptoms "persist or recur despite medical
treatments." There is no evidence in the record, other than her own self-reports,
that Kay had seizures in the first place, let alone that they recurred after her
visits to Jordan-Scalia or Viradia. Other than a vague indication, in response to
a deposition question, that a blackout "might" have caused the accident, Kay
testified she did not remember the last time she had a blackout before the
A-1837-18T1 19 accident, had not blacked out since, and also said later she did not recall anything
about blackouts.
Additionally, we reject plaintiff's assertion the doctors' visits constituted
treatment; the statute states a report must be made if the condition persists or
recurs "despite medical treatments," which suggests an active treatment that
would be expected to result in change. Here, there is no indication there was a
recurrence at all, let alone a recurrence despite treatment, as both doctors were
still awaiting the test results. Although Kay was prescribed anti-seizure
medications, they were not prescribed by either Jordan-Scalia or Viradia, and
there is no evidence they were prescribed for seizures.
Further, a report to the MVC is required "within [twenty-four] hours after
[the physician's] determination" that the conditions persist and recur despite the
medical treatments. Neither Viradia nor Jordan-Scalia ever determined there
was a recurrence of symptoms enumerated in the statute despite medical
treatment. To the contrary, both doctors were still awaiting test results, Viradia
testified seizures were the lowest on his list of possible differential diagnoses,
Kay testified in her deposition she did not recall having seizures at all, and
subsequent tests showed Kay did not suffer from seizures.
A-1837-18T1 20 Finally, the MVC process indicates more than a self-report, referral, and
order of tests triggers the requirement that a physician report an individual to
the MVC. Once an individual has been reported to the MVC, the Director
forwards "all pertinent reports," including the treating physician's statement as
to diagnosis, treatment, and prognosis, to the specially-formed Neurological
Disorder Committee for review. 24 Ramsey, N.J. Practice, Motor Vehicle Law
and Practice § 2:36 (4th ed.) (citing N.J.A.C. 13:19-5.5); N.J.A.C. 13:19-5.3, -
5.4. The Committee performs an independent analysis based on the evidence,
and then makes a recommendation to the Director as to whether the individual
may retain his or her license or whether it should be suspended. Ibid. (citing
N.J.A.C. 13:19-5.6). From this, it can be inferred that to warrant a report to the
MVC, there must be some history, investigation, and evidence from which the
Committee can make an assessment.
Therefore, because there was no diagnosis, no treatment, and no
recurrence, there is nothing in the plain reading of the statute or in the MVC
process to indicate either Jordan-Scalia, Viradia, or their employers had a duty
to report Kay to the MVC, and summary judgment on this ground was
appropriate.
A-1837-18T1 21 II.
Plaintiff argues the trial court should have considered whether plaintiff
could prove an independent basis for a claim of common law medical negligence
against Jordan-Scalia and Viradia, based on plaintiff's experts' reports as to their
alleged negligence under common-law malpractice principles. However,
plaintiff's claims were not for common-law malpractice. While the first
complaint alleged Jordan-Scalia and Viradia were negligent and deviated from
accepted standards in rendering medical care, which resulted in plaintiff's
injuries, those claims were dropped in the second and third amended complaints,
and changed to negligence in their failure to report Kay to the MVC under the
statute. Therefore, this argument is without merit.
Plaintiff also argues that under the applicable standard of care according
to Fayer, Koller had a duty to contact appropriate persons who could make a
determination and take appropriate action to ensure Kay was not driving since
there was an "index of suspicion that the patient may be dangerous."
Additionally, plaintiff argues, under Corso a genuine issue of material fact exists
as to whether the applicable standards of care mandated that Koller arrange for
a medical or psychiatric consultation given her awareness of Kay's history.
Plaintiff asserts a jury could find Koller was negligent in failing to effectively
A-1837-18T1 22 deter Kay from driving, including but not limited to reporting her condition to
the MVC.
These arguments are also without merit. The claim against Koller was
only that she was negligent in failing to report Kay to the MVC, not that she
deviated from general standards of care. Koller was aware that Kay was under
the care of other physicians, and as a non-physician Koller had no duty to take
any action under N.J.S.A. 39:3-10.4. Further, the record reflects that Koller did
refer Kay to a higher level of care than she could provide and was in the process
of referring her to a substance abuse program.
III.
Plaintiff argues the breaches of the alleged duty of defendants to report
Kay to the MVC were the proximate cause of plaintiff's injuries, in that the
negligence of the health care defendants was an efficient cause that set the series
of events into motion, which led to plaintiff's injuries. Plaintiff asserts Kay's
testimony that she would not have driven a car if her license had been suspended
demonstrates Kay would not have been driving at all on May 20, and that a jury
could reasonably conclude that but for the negligence of the healthcare provider
defendants, the accident would not have occurred.
A-1837-18T1 23 Plaintiff also asserts Kay blacked out, which caused the accident, and that
if she were not driving while having a seizure the accident would not have
occurred. Additionally, plaintiff argues the issue of causation is a question of
fact for a jury to consider after trial, under Yun v. Ford Motor Company, 276
N.J. Super. 142, 156 (App. Div. 1994), rev'd. on other grounds, 143 N.J. 162
(1996).
When the evidence "is so one-sided that one party must prevail as a matter
of law," summary judgment should be granted. Brill 142 N.J. at 540 (citation
omitted). The opposing party must produce evidence that creates a genuine issue
of material fact, and "[c]onclusory and self-serving assertions by one of the
parties are insufficient to overcome the motion." Vizzoni, 459 N.J. Super. at
567 (citation omitted).
"A party cannot defeat a motion for summary judgment merely by
submitting an expert's report in his or her favor," but rather, the expert report
must create a genuine issue of material fact. Brill, 142 N.J. at 544. An expert
opinion must be grounded in facts or data, and the net opinion rule forbids
admission of an expert's conclusions that are not supported by factual evidence
or other data – the expert must "give the why and wherefore" that supports the
opinion and not just "a mere conclusion." Townsend, 221 N.J. at 53-54 (quoting
A-1837-18T1 24 Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013))
(other citations omitted). If there is no genuine issue of material fact, we look
to whether the trial court correctly interpreted the law, according the trial judge's
legal conclusions no deference. Vizzoni, 459 N.J. Super. at 567 (citations
omitted).
The plaintiff may prove causation through "legitimate inference, so long
as the proof will justify a reasonable and logical inference as distinguished from
mere speculation." Vizzoni, 459 N.J. Super. at 576 (quoting Kulas v. Pub Serv.
Elec. & Gas Co., 41 N.J. 311, 319 (1964)). Proximate cause may "be removed
from the jury's determination if causation depends on the validity of an expert's
report." Id. at 576 (first citing Townsend, 221 N.J. at 57-58; then citing Dawson
v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 324 (App. Div. 1996)).
Therefore, where "no reasonable factfinder could find that the plaintiff has
proven causation by a preponderance of the evidence, summary judgment may
be granted dismissing the plaintiff's claim." Townsend, 221 N.J. at 60.
Here, there is no evidence Kay suffered a seizure or other symptom
enumerated under the statute at the time of the accident, other than Kay's own
response to a deposition question that a blackout "might" have been the cause,
and Rigatti's conclusion that a seizure was one of many other possible causes of
A-1837-18T1 25 the accident, including falling asleep at the wheel and suicidality. A review of
the record shows numerous factors that could have caused Kay to drift over the
center line head-on into plaintiff's car, including: alcohol abuse; multiple
medications that, according to Rigatti, had side effects that included impaired
concentration, seizures, drowsiness, and suicidal ideation; a recent history of
suicidal thoughts; a recent history of violent acts; and, as Fayer noted, Kay
reported that before the accident she took 0.5 mg of Klonopin and muscle
relaxers, which have side effects of dizziness, unsteadiness, weakness, and
drowsiness.
Therefore, the record does not establish it is more likely than not that Kay
suffered a seizure that caused the accident, but only that it was a remote
possibility, as seizure disorder was later ruled out by the test results.
Finally, plaintiff's argument that Kay would not have driven at all that day
had defendants reported her to the MVC, and plaintiff would not have been
injured, is completely speculative. Not only is it speculative to suggest Kay
would not have driven had her license been suspended, but it is also speculative
that her license would have been suspended in the first place. The MVC process
takes time, as the Committee reviews the evidence and makes an analysis before
making a recommendation to the Director. Further, the Director has wide
A-1837-18T1 26 discretion as to whether and when to suspend or allow an individual to retain his
or her license under N.J.A.C. 13:19-5.7. The Director may or may not suspend
a driver's license before receiving the Committee's recommendation, upon
notice and an opportunity to be heard under N.J.A.C. 13:9-5.2, and even after
the Committee makes its recommendation, it is not binding on the Director; the
Director may or may not suspend an individual's license no matter what the
Committee's recommendation under N.J.A.C. 13:19-5.7. Given the MVC
process and the Director's discretion, there is no way to know whether the MVC
would have suspended Kay's license either before the accident or at all.
Therefore, given the other potential and more likely causes of Kay's
accident, the lack of evidence Kay suffered from a reportable disorder, and the
process that ensues once an individual has been reported to the MVC, that
defendants' failure to report Kay to the MVC was the proximate cause of
plaintiff's injuries is "pure speculation or conjecture" and summary judgment
was appropriate on this ground as well. Plaintiff's remaining arguments are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1837-18T1 27