Khongsana Soumphonphakdy v. Englewood Hospital and Medical Center

• Court: New Jersey Superior Court Appellate Division
• Decided: October 28, 2025
• Docket: A-2355-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2355-23

KHONGSANA SOUMPHONPHAKDY,

Plaintiff-Appellant,

v.

ENGLEWOOD HOSPITAL AND MEDICAL CENTER, and WARREN GELLER, CEO,

Defendants-Respondents. ___________________________

Submitted September 23, 2025 – Decided October 28, 2025

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5516-22.

Khongsana Soumphonphakdy, appellant pro se.

Clare & Scott, LLC, attorneys for respondents (Patrick J. Clare, of counsel and on the brief).

PER CURIAM Plaintiff Khongsana Soumphonphakdy appeals from the February 23,

2024 order of the Law Division denying his motion for leave to file an amended

complaint, granting summary judgment to defendants Englewood Hospital and

Medical Center (EHMC) and its Chief Executive Officer, Warren Geller, and

dismissing the complaint with prejudice. We affirm.

I.

On March 5, 2017, plaintiff went to the emergency department at EHMC ,

complaining of back pain from injuries he sustained in a motor vehicle accident

a few weeks earlier. Medical personnel treating plaintiff ordered radiographic

films, commonly known as CT scans, of his back.

A radiologist who was not employed by EHMC interpreted the CT scans

of plaintiff's back as not indicative of a fractured spine. Their interpretation was

recorded in plaintiff's EHMC medical records. Plaintiff disagreed with the

interpretation and sought to have his medical records changed to indicate the CT

scans evidenced a spinal fracture with displacement of portions of the spine.

On April 13, 2017, an EHMC privacy officer informed plaintiff in writing

his request to amend his medical records had been denied because EMHC had

"determined that the information documented in [his] medical record at the time

of service [was] an accurate and complete record of [his] visit." According to

A-2355-23 2 EMHC, three radiologists reviewed the CT scans and determined they were not

indicative of a fractured spine. The privacy officer informed plaintiff of his

right to file a written disagreement with the decision which would also be

included in his EHMC medical records.

On October 11, 2022, plaintiff filed a complaint in the Law Division

against defendants. He alleged the CT scans of his back showed a spinal fracture

and displacement of elements of his spine, but "the doctors 'lied'" and " say no

fracture (sic)." As causes of action, plaintiff alleged "frauds," "misdiagnosis,"

and "important symptoms have been ignored." According to the complaint,

plaintiff sought "$ ____ (sic) for frauds or plaintiff relief if [EHMC] would just

amend the correct reading of the C.T. scans and the law sued (sic) case will be

drop (sic)." However, in his case information statement (CIS), plaintiff alleged

he was seeking punitive damages and "this case is not a medical malpractice

case."

On October 20, 2022, defendants filed an answer demanding plaintiff, to

the extent he was alleging claims of medical malpractice, file an affidavit of

merit (AOM), as required by the AOM statute, N.J.S.A. 2A:53A-26 to -29.

A-2355-23 3 Plaintiff failed to submit an AOM from an expert within the time

permitted by statute. 1 Defendants thereafter moved to dismiss all medical

malpractice claims in the complaint for failure to file an AOM. Plaintiff did not

oppose the motion.

On March 20, 2023, the motion court entered an order granting defendants'

motion and dismissing with prejudice "all claims sounding in medical

malpractice" against defendants.

On January 12, 2024, after completing discovery, defendants moved for

summary judgment in their favor on plaintiff's civil fraud claims. In support of

their motion, defendants argued neither EHMS nor Geller interpreted the CT

scans of plaintiff's back and the radiologist who interpreted the scans was not

employed by either defendant and did not act as their agent or servant. They

also argued neither defendant committed a fraud upon nor lied to plaintiff in

connection with the interpretation of the CT scans of his back.

On January 29, 2024, plaintiff opposed defendants' motion by filing a

cross-motion to amend the complaint to name as additional defendants GEICO

Insurance Company (GEICO), Princeton Insurance Company (PIC), MedPro,

1 It appears plaintiff, who is not a licensed medical professional, filed an AOM under his signature attesting to the validity of his medical malpractice claim. A-2355-23 4 Englewood Hospital & Radiology Group (EHRG), Berkshire Hathaway

(Berkshire), and Warren Buffett. Plaintiff alleged he "found . . . more

defendants to add" during discovery. He sought to add claims seeking

compensatory damages from GEICO, "exemplary damages from [EHRG] and

CEO, doctors, to set an example to deter others from committing similar acts –

fraud," and punitive damages from PIC, MedPro, Berkshire, and Buffett.

Defendants opposed plaintiff's cross-motion. In addition to noting

plaintiff made no substantive arguments in opposition to their motion for

summary judgment, defendants argued plaintiff could not invoke Rule 4:26-4,

the fictitious party rule, because he did not include fictitious defendants in his

complaint and did not exercise due diligence since filing the complaint to

identify the fictitious parties. In addition, defendants argued plaintiff alleged

no facts or cause of action against the proposed additional defendants and, to the

extent he sought to allege civil fraud against the proposed defendant s, the six-

year statute of limitations on such claims had expired. See N.J.S.A. 2A:14-1.

On February 23, 2024, the court entered an order denying plaintiff's cross-

motion to amend the complaint, granting defendants' motion for summary

judgment, and dismissing the complaint with prejudice. In a written decision,

the court found no basis on which to permit plaintiff to file an amended

A-2355-23 5 complaint. The court noted that after four hundred and fifty days of discovery,

a period previously extended, the matter was scheduled for trial.

In addition, the court found plaintiff sought to add defendants to the

complaint six years and ten months after he was treated in the EHMC emergency

department, beyond the six-year limitations period. The court also found

plaintiff did not establish he only recently became aware of the proposed new

defendants, did not name fictitious defendants in the complaint, and made no

showing of due diligence in identifying the defendants. See Claypotch v. Heller,

Inc., 360 N.J. Super. 472, 482 (App. Div. 2003) (explaining obligation to

exercise due diligence in identifying fictitious parties pursuant to Rule 4:26-4).

The court concluded amendment of the complaint would unfairly

prejudice the parties and lead to an undue delay in resolving plaintiff's claims.

In addition, the court found amendment of the complaint would be futile because

plaintiff's civil fraud claims against the proposed defendants would be time -

barred.

With respect to defendants' summary judgment motion, the court found

plaintiff failed to offer substantive opposition to defendants' argument s and did

not produce evidence establishing any of the elements of civil fraud. See

A-2355-23 6 Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997) (describing the five

elements of common-law fraud). The court concluded:

Here, the court finds in viewing the evidence in the light most favorable to [p]laintiff, [p]laintiff has failed to present sufficient evidence raising a genuine issue of fact as to whether the [d]efendants committed civil fraud. The court finds there is no evidence that a material misrepresentation was made of a presently existing or past fact, much less any representation made by either [EHMC] or . . . Geller. The court also finds that even if [p]laintiff could, somehow, attribute a material misrepresentation of a presently existing or past fact, there is no evidence that either [EHMC] or . . . Geller knew the falsity of any statement nor that they intended that [p]laintiff rely upon such statement(s). Here, [p]laintiff is asking the court to conclude [d]efendants committed civil fraud only based on his opinion and without any evidence whatsoever having been presented or developed which could possibly support such assertion.

As a result, the court concluded defendants were entitled to summary judgment

in their favor.

Plaintiff subsequently moved for a stay of the February 23, 2024 order

and for leave from the trial court to file an appeal from that order. Defendants

opposed the motions.

On April 3, 2024, the motion court entered an order denying plaintiff's

motion for leave to file an appeal from the February 23, 2024 order "as there is

no basis for this court to enter such an order."

A-2355-23 7 On April 24, 2024, the motion court entered an order denying plaintiff's

motion for a stay of the February 23, 2024 order. The court found "no basis" on

which to grant a stay. This appeal followed.

Plaintiff raises the following arguments.

POINT (1)

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS BECAUSE APPELLANT GOT A CERTIFFICATE [(SIC)] OF PERMANANCY [(SIC)] TO SPINE FRACTURE, HAVE X-RAYS AND CT-SCANS SHOW FRACTURE, SHOW EVIDANCE [(SIC)] FOR STANDIND [(SIC)] FOR CIVIL FRAUD CASE TO PROCEED, THAT THE DEFENDANTS MADE FALSE MEDICAL REPORTS SAID NO FRACTURE. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT FOR DEFENDANTS, BECAUSE DEFENDANTS COMMITS [(SIC)] INSURANCE FRAUD, FALSE REPRESENTATION FRAUD AND CORPORATE FRAUD. UNDER NJ CONSTITUTION RULES THE RIGHT TO A JURY TRIAL.

POINT (2)

[THE MOTION JUDGE] DID NOT APPLY AMENDED AND SUPPLEMENTAL PLEADING RULES 4:9 AND 4:9-4 FOR APPELLANT['S] . . . MOTION FOR LEAVE TO [(SIC)] AND TO AMEND THE COMPLAINT, WHEN ORAL ARGUMENT HEARING ON 2/15/2024.

A-2355-23 8 POINT (3)

[THE MOTION JUDGE] DID NOT APPLY RULES 6:3-1.15 (SIC) MOTION TO STAY FILED BY APPELLANT FOR TOLLING AFTER THE SUMMARY JUDGMENT WAS GRANTED.

II.

"Rule 4:9-1 requires that motions for leave to amend be granted liberally."

Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998).

"That exercise of discretion requires a two-step process: whether the non-

moving party will be prejudiced, and whether granting the amendment would

nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006);

see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.1 on R. 4:9-1

(2026). Courts are thus "free to refuse leave to amend when the newly asserted

claim is not sustainable as a matter of law . . . [because] a subsequent motion to

dismiss must be granted." Notte, 185 N.J. at 501 (quoting Interchange State

Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)). We review the

denial of a motion for leave to file an amended complaint for abuse of discretion.

Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App.

Div. 2003).

The motion court denied plaintiff's motion for leave to file an amended

complaint for several reasons. First, the court relied on the late timing of

A-2355-23 9 plaintiff's motion. Plaintiff did not seek leave to file an amended complaint until

after the completion of more than a year of discovery and after a trial date had

been set. Thus, the court concluded defendants would be unfairly prejudiced by

the filing of the amended complaint. Second, the court found plaintiff did not

name fictitious defendants in the complaint, did not establish the proposed

defendants were unknown to him when the complaint was filed, and did not

demonstrate he exercised due diligence in identifying the proposed defendants.

Third, the court found plaintiff's claims of civil fraud against the proposed

defendants were time-barred, as more than six years had passed since his visit

to the EHMC emergency department and the interpretation of his CT scans.

Thus, the court concluded permitting plaintiff to file the amended complaint

would be futile.

We have reviewed the record and find no basis on which to conclude the

motion court mistakenly exercised its discretion. Plaintiff raises no convincing

argument to the contrary.

We review a grant of summary judgment de novo, applying the same

standard as the motion court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That

standard requires us to "determine whether 'the pleadings, depositions, answers

to interrogatories and admissions on file, together with the affidavits, if any,

A-2355-23 10 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.'" Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).

"Summary judgment should be granted . . . 'against a party who fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the motion court's legal

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).

Self-serving assertions that are unsupported by evidence are insufficient

to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan

Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent

opposition requires 'competent evidential material' beyond mere 'speculation'

and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.

415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun

Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). We review the record

"based on our consideration of the evidence in the light most favorable to the

A-2355-23 11 parties opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 523 (1995).

To establish a prima facie case of civil fraud, a plaintiff must show: (1) a

material misrepresentation of a presently existing or past fact; (2) the defendant

had knowledge or belief it was false; (3) the defendant intended for the plaintiff

to rely on it; (4) the plaintiff reasonably relied on the misrepresentation; and (5)

the plaintiff suffered damages. Allstate N.J. Ins. Co. v. Lajara, 222 N.J. 129,

147 (2015). Fraud requires the plaintiff to prove proximate causation by

establishing that "defendant's conduct was a cause of damages." Varacallo v.

Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 48 (App. Div. 2000). "Fraud is

not presumed; it must be proven through clear and convincing evidence."

Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div.

1989) (citing Albright v. Burns, 206 N.J. Super. 625, 636 (App. Div. 1986)).

Plaintiff offered no substantive argument in opposition to defendants'

summary judgment motion. Our review of the record revealed no evidence

supporting plaintiff's claim defendants engaged in a fraud with respect to his

EHMC medical records. Neither EHMC, Geller, nor anyone employed by them

or acting on their behalf interpreted plaintiff's CT scans. Nor did plaintiff

produce any evidence the radiologist who interpreted the CT scans of his back

A-2355-23 12 did anything other than provide a good faith opinion of the medical condition

evidenced by the scans. The motion court's grant of summary judgment is well

supported by the record.

To the extent we have not specifically addressed any of plaintiff's

remaining contentions, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).2

Affirmed.

2 Plaintiff's brief challenges the April 24, 2024 order denying his motion to stay the February 23, 2024 order. The April 24, 2024 order was entered after plaintiff filed his notice of appeal and was not, therefore, listed in that document. Plaintiff did not thereafter file an amended notice of appeal challenging the April 24, 2024 order. On May 13, 2024, we denied plaintiff's motion for a stay of the February 23, 2024 order. In light of our decision affirming the February 23, 2024 order, plaintiff's arguments with respect to the denial of a stay are moot. A-2355-23 13