Sergio Amoedo v. Osteo Relief Institute

• Court: New Jersey Superior Court Appellate Division
• Decided: February 7, 2025
• Docket: A-3809-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3809-21

SERGIO AMOEDO and KAREN DALY AMOEDO, his wife, PETER P. BARNA, the ESTATE of VINCENT BEAVER, by and through his EXECUTRIX MAUREEN BEAVER, BARRY BLANCHARD and KAREN O'HARA, his wife, ELIZABETH CRILLEY, PHILIP DELUCA and MARLENE DELUCA, his wife, DOUGLAS FOLEY and DEBORAH FOLEY, his wife, ESTATE OF DONALD HOWARD by and through his EXECUTOR, ERNEST HOWARD, GARY JOHNSTON and MARY JOHNSTON, his wife, FRANK T. JONES, SR., PATRICIA LEMOINE and STEVEN LEMOINE, her husband, STEVE LEWIS and JOANNE LEWIS, his wife, JILL BUTLER MULE and JOSEPH MULE, her husband, MICHAEL NITTOLO and ADRIENNE NITTOLO, his wife, JEFFREY READER and DEBORAH READER, his wife, WALTER SAMEDI and his wife, MIYANTA SAMEDI, JOSEPH SCARANO and JUDITH SCARANO, his wife,

Plaintiffs-Appellants,

v.

HEALTH CAROUSEL, LLC, and NEXT MEDICAL STAFFING, LLC,

Defendants-Respondents,

and

OSTEO RELIEF INSTITUTE, JOHN J. RUSH, M.D., as Chief Medical and Compliance Officer of the OSTEO RELIEF INSTITUTE, MEDICAL OFFICES OF NEW JERSEY SHORE, LLC, MARVIN L. SWANSON, M.D., as authorized official of MEDICAL OFFICES OF NEW JERSEY SHORE, LLC, OSTEO RELIEF INSTITUTE OF JERSEY SHORE, PC, IGAL DUBOV, D.C., as President of OSTEO RELIEF INSTITUTE OF JERSEY SHORE, PC, OSTEO RELIEF INSTITUTE OF NJ, LLC, ANTIGRAVITY EFFECTS, LLC, HOMAS C. ROSS, individually, and as Managing Member of ANTIGRAVITY EFFECTS, LLC, KATHERINE M. ROSS, individually and as a member of ANTIGRAVITY EFFECTS, LLC, MATHIAS H. BERRY, individually and as agent, servant, and member of ANTIGRAVITY EFFECTS, IGAL DUBOV, D.C., as medical provider, agent, owner, and/or employee of OSTEO RELIEF INSTITUTE OF NJ, LLC, MARIAM RUBBANI, M.D., MARVIN L.

A-3809-21 2 SWANSON, M.D., and JOHN J. RUSH, M.D.,

Defendants. ________________________________________

Submitted November 6, 2023 – Decided February 7, 2025

Before Judges DeAlmeida, Berdote Byrne, and Bishop- Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1754-17.

Shebell & Shebell, LLC, attorneys for appellants (Thomas F. Shebell, III, of counsel; John H. Sanders, II and Christian R. Mastondrea, on the briefs).

Buckley Theroux Kline & Cooley, LLC, attorneys for respondents Next Medical Staffing, LLC and Health Carousel, LLC (Sarah A. Buckley and Charles A. Shadle, on the brief).

The opinion of the court was delivered by

DeALMEIDA, J.A.D.

Plaintiffs appeal from the June 29, 2022 order of the Law Division

granting summary judgment to defendants Next Medical Staffing, LLC (Next

Medical) and Health Carousel, LLC (Carousel) in this medical malpractice and

negligence action. We affirm.

A-3809-21 3 I.

This matter arises from a cluster of knee infections that appeared in March

2017 after patients with preexisting osteoarthritis received knee injections at

defendant Osteo Relief Institute (ORI) in Wall. At that time, ORI was operated

by defendant Osteo Relief Institute of New Jersey, LLC (ORINJ) and defendant

Medical Offices of New Jersey Shore, LLC (MONJS). Defendant Igal Dubov,

D.C., a licensed chiropractor, owned ORINJ and defendant John Rush, M.D.,

owned MONJS at the time of the infectious outbreak. Pursuant to a contract

between the owner entities, ORINJ provided administrative and management

services to ORI, and MONJS was responsible for employing physicians and

other professionals to provide medical services to the patients of ORI.

ORI had a professional relationship with defendant Next Medical, a

temporary medical services staffing agency. Defendant Carousel became Next

Medical's parent company in 2015.1 Next Medical has no ownership interest in

ORI or authority to control or influence its operations or the provision of medical

care by ORI employees.

1 Unless necessary for the sake of clarity, we refer to Next Medical and Carousel collectively as Next Medical, given that Carousel is named as a defendant only in its capacity as Next Medical's parent company. A-3809-21 4 Under its business model, Next Medical receives job order requests from

hospitals, private medical practices, and other medical facilities for temporary

placement of healthcare professionals. Next Medical does not employ the

healthcare professionals it places with its clients. They work as independent

contractors and may pursue any employment they wish apart from the work they

are assigned by Next Medical. Once a healthcare professional is placed with a

client, Next Medical has no control or supervision over the healthcare

professional's provision of medical services. Next Medical does not perform

credentialing of physicians, examine the credentials of its clients, or engage in

the practice of medicine. When a client signs an agreement with Next Medical

for temporary staffing placement, the client attests to having met applicable

compliance standards for its practice in the state in which it is operating.

The relationship between Next Medical and ORI began when Dubov

contacted Next Medical seeking placement of a temporary physician to work at

ORI. He represented himself to be the owner of ORI's practice. Next Medical

made no inquiry into ORI's corporate structure or the legality of physician

candidates treating patients under the supervision of a chiropractor. Dubov

executed an agreement for temporary staffing placement with Next Medical.

During the course of their professional relationship, Next Medical referred

A-3809-21 5 physician candidates to Dubov, who conducted interviews and selected who

would work at ORI. Next Medical was not the exclusive source of staffing for

ORI. There were several occasions where Next Medical presented a physician

for consideration to Dubov only to be informed that he had already filled the

position.

In March 2015, Next Medical referred defendant Mariam Rubbani, M.D.,

to Dubov for placement at ORI. Rubbani executed a medical director services

agreement with MONJS naming her medical director at ORI for a fifty-two week

period. She provided those services as an independent contractor. In August

2015, MONJS bought out Rubbani's contract and permanently appointed her to

a position at ORI as an employee.

In October 2016, Dubov contacted Next Medical stating ORI needed a

physician to replace Rubbani. Next Medical recommended a replacement

physician, Dr. Carol Skipper. ORI agreed to Skipper's temporary placement at

ORI, where she worked as an independent contractor from September 2016 to

February 2017. Although Dubov originally stated he needed to replace Rubbani,

she continued to work at ORI during and after Skipper's placement.

At her deposition, Skipper testified she relied completely on Dubov and

other staff members at ORI for handling and scheduling patients, cleaning

A-3809-21 6 protocols, and medical preparations. She performed injections on thirty to forty

patients a day. According to Skipper, "all [she] basically had to do was go from

room . . . to room . . . and perform the injection." She testified that because

there were no sinks in patient treatment rooms, she did not wash her hands

between patients, but tried to do so every three to four patients in a bathroom.

Skipper did not wear a mask while injecting patients, nor did ORI provide her

any written policies or procedures regarding infectious disease prevention,

patient safety, or hand hygiene.

In March 2017, at least fifty-three patients developed knee joint infections

from injections they received at ORI. The Department of Health investigated

the cause of the infectious outbreak. The agency documented several breaches

in fundamental aseptic protocols at ORI, including: untimely removal of

syringes and needles from sterile packages in advance of procedures (at times

up to four days); the use of single-dose medication containers for more than one

patient; storage of multiple-dose and open single-dose medication containers in

the immediate patient care area; failure to have written infection prevention

policies; failure to have proper registered disinfectant wipes; failure to have

alcohol-based hand sanitizer in patient treatment areas and throughout the

office; failure to routinely practice hand hygiene before medication preparation,

A-3809-21 7 before donning gloves, and after removing gloves; and failure to have written

environmental cleaning and disinfection policies or procedures.

Skipper was not working at ORI at the time of the infectious outbreak.

Only Rubbani, by then an ORI employee, was performing injections at ORI

when the infectious outbreak arose. At the time that the infectious outbreak

arose, no physician staffed through Next Medical was working at ORI.

Plaintiffs filed complaints in the Law Division alleging they were infected

during the outbreak at ORI as the result of negligent medical treatment and

practices.2 They alleged medical malpractice and negligence against ORI and

related entities, principals of those entities, and the medical professionals who

treated them. Those claims were resolved and are not presently before this court.

Plaintiffs also named Next Medical and Carousel as defendants, alleging

medical malpractice and negligence resulting in their knee infections.

After discovery, Next Medical and Carousel moved for summary

judgment. They argued: (1) the core of plaintiffs' complaints was their medical

malpractice claims, but because Next Medical did not practice medicine those

claims were not viable; (2) no healthcare professional who treated plaintiffs at

2 Plaintiffs also include the spouses and estate representatives of ORI patients. The seventeen complaints filed by plaintiffs were consolidated for purposes of the summary judgment motion that gave rise to this appeal. A-3809-21 8 the time the infectious outbreak arose was employed by or under the control of

Next Medical, negating any claims of medical malpractice or negligence; (3)

Next Medical could not be liable under a theory of vicarious or direct liability

because at the time the infectious outbreak arose there was no physician staffed

at ORI through Next Medical; (4) claims of corporate negligence in the

provision of medical care are not applicable to a temporary medical services

staffing agency; (5) plaintiffs did not have standing to allege violations of the

corporate practice of medicine doctrine under the Insurance Fraud Protection

Act (IFPA), N.J.S.A. 17:33A-1 to -30, or N.J.A.C. 13:35-6.16, because those

authorities do not create a private cause of action; (6) Next Medical owed no

duty of care to plaintiffs; (7) plaintiffs failed to produce an expert report

addressing the duties of temporary medical service staffing agencies for

healthcare professionals; and (8) plaintiffs could not prove any act or omission

of Next Medical was the proximate cause of their infections. Plaintiffs opposed

the motion.

On June 29, 2022, Judge Kathleen A. Sheedy issued a comprehensive

twenty-eight-page written decision granting Next Medical and Carousel's

motion for summary judgment and dismissing all claims against them. The

judge found Next Medical owed no duty of care to plaintiffs. While

A-3809-21 9 acknowledging "that there is a general foreseeability that an individual may be

injured while being provided medical services," the judge concluded Next

Medical's connection to the medical services provided to plaintiffs by ORI and

Rubbani was too tenuous to create a duty of care. The judge noted Next Medical

is not a healthcare provider, had no contact with plaintiffs, played no role in

their medical treatment, and had no legal relationship with plaintiffs from which

a duty of care might arise.

The judge also rejected plaintiffs' claims of respondeat superior liability.

The judge found Next Medical did not and could not control how the physicians

they placed at ORI provided medical treatment to plaintiffs. Those physicians,

the judge noted, were not employees of Next Medical, and Rubbani, the only

physician administering injections at the time of the outbreak, was employed by

ORI. The judge rejected plaintiffs' argument that Next Medical retained

sufficient control over the physicians it placed at ORI to create an

employer/employee relationship, finding instead the physicians were

independent contractors when working on an assignment from Next Medical.

The judge also noted N.J.A.C. 13:35-6.16(f)(1), on which plaintiffs relied,

states a physician with a plenary scope of practice may not be employed or

supervised by a licensee with a more limited scope of practice. Specifically, the

A-3809-21 10 regulation provides licensed practitioners "may employ or otherwise remunerate

other licensed practitioners to render professional services within the scope of

practice of each employee's license, but which scope shall not exceed that of the

employer's license." N.J.A.C. 13:35-6.16(f)(1). The judge found the

responsibility to comply with the regulation rests with the medical practitioner

employing the licensee and not with a temporary medical services staffing

agency who facilitates the placement of the licensee. Nor, the judge found, does

the regulation create a private cause of action for allegations of a breach of the

regulation.

The judge also found plaintiffs had no cause of action against Next

Medical under the IFPA, as Next Medical had no obligation to investigate the

corporate structure surrounding ORI and no role in the formation or operation

of that entity. Nor, the judge found, did plaintiffs establish Next Medical was

engaged in the corporate practice of medicine. The judge again noted Next

Medical is not a healthcare provider and had no involvement in the decisions

concerning the medical treatment given to plaintiffs.

The judge concluded plaintiffs could not establish any act or omission of

Next Medical was the proximate cause of plaintiffs' infections. The judge noted

the record established Next Medical had no control over the operations of ORI,

A-3809-21 11 its facility, employees, sanitary practices, or medical treatment decisions. The

only role Next Medical played was placing physicians at ORI to treat patients

under the supervision and control of ORI. In addition, the judge noted Rubbani's

shift from independent contractor to ORI employee prior to the outbreak was a

direct break in any causal chain that may have existed between any act or

omission of Next Medical and plaintiffs' infections. A June 29, 2022 order

memorialized the motion court's decision.

This appeal follows. Plaintiffs argue the motion court erred in concluding

Next Medical owed no duty of care to plaintiffs because: (1) it was foreseeable

plaintiffs would be harmed if Next Medical placed a physician under the

supervision of a chiropractor; (2) Next Medical benefitted financially from

placing Rubbani at ORI; (3) a violation of N.J.A.C. 13:35-6.16(f)(1), which

Next Medical facilitated, could be considered evidence of negligence; (4) the

court improperly relied on Next Medical's out-of-state incorporation in its legal

analysis; and (5) plaintiffs' position was supported by an expert report.

II.

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

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

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

A-3809-21 12 to interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.'" 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 trial 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).

"To sustain a cause of action for negligence, a plaintiff must establish four

elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and

(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo

v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). Our focus initially is on the first

required element: the presence of a legal duty. The existence and scope of a

duty is a legal question for the court. Est. of Desir ex rel. Estiverne v. Vertus,

214 N.J. 303, 322 (2013). We review a trial court's determination of that

A-3809-21 13 question de novo. Broach-Butts v. Therapeutic Alts., Inc., 456 N.J. Super. 25,

33-34 (App. Div. 2018).

"[T]he actual imposition of a duty of care and the formulation of standards

defining such a duty derive from considerations of public policy and fairness."

Vertus, 214 N.J. at 322 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,

439 (1993)). While "[t]here is no bright line rule that determines when one owes

a legal duty," Badalamenti v. Simpkiss, 422 N.J. Super. 86, 94 (App. Div. 2011),

in examining "[w]hether a person [or entity] owes a duty of reasonable care

toward another," courts must assess

whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors – 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. 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.

[Hopkins, 132 N.J. at 439 (citations omitted).]

While "[f]oreseeability of injury to another is important, [it is] not dispositive"

as "[f]airness, not foreseeability alone, is the test." Vertus, 214 N.J. at 325

(internal quotation marks omitted).

A-3809-21 14 "We are not bound by the opinion of plaintiffs' expert that the recognition

of such a duty is legally required" because "[a]n expert's opinion on a question

of law is neither appropriate nor probative." Est. of Campagna v. Pleasant Point

Props., LLC, 464 N.J. Super. 153, 171 (App. Div. 2020) (quoting Kamienski v.

State, 451 N.J. Super. 499, 518 (App. Div. 2017)).

The motion court also relied on plaintiffs' inability to establish any act or

omission by Next Medical was the proximate cause of their injuries. "Proximate

cause connotes not nearness of time or distance, but closeness of causal

connection." Cruz-Mendez v. ISU/Ins. Servs. of S.F., 156 N.J. 556, 577 (1999)

(quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 732 (Sup. Ct. 1923)). "[T]o

be a proximate cause . . . conduct need only be a cause which sets off a

foreseeable sequence of consequences, unbroken by any superseding cause, and

which is a substantial factor in producing the particular injury." Showalter v.

Barilari, Inc., 312 N.J. Super. 494, 503 (App. Div. 1998) (alterations in original)

(quoting Yun v. Ford Motor Co., 276 N.J. Super. 142, 159 (App. Div. 1994)

(Baim, J.A.D., concurring and dissenting)). "A superseding or intervening act

is one that breaks the 'chain of causation' linking a defendant's wrongful act and

an injury or harm suffered by a plaintiff." Komlodi v. Picciano, 217 N.J. 387,

418 (2014) (quoting Cowan v. Doering, 111 N.J. 451, 465 (1988)). Superseding

A-3809-21 15 or intervening acts that "are 'foreseeable' or the 'normal incidents of the risk

created' will not break the chain of causation and relieve a defendant of

liability." Ibid.

Having carefully reviewed plaintiffs' arguments in light of the record and

applicable legal principles, we affirm the June 29, 2022 order for the reasons

stated by Judge Sheedy in her thorough and well-reasoned written decision. As

Judge Sheedy aptly found, it is undisputed that at the time the infectious

outbreak arose, Rubbani was the only physician administering injections at ORI.

At that time, Rubbani was an employee of ORI and providing medical treatment

under the supervision and control of that entity. The change in Rubbani's

employment status broke the causal chain, if any ever existed, between any act

or omission of Next Medical and plaintiffs' injection with an infectious agent at

ORI.

In addition, we agree with Judge Sheedy's determination that Next

Medical did not owe a duty of care to plaintiffs. The only legal obligation Next

Medical had was to ORI with respect to the placement of healthcare

professionals. Once those healthcare professionals began treating patients at

ORI, they acted as independent contractors under the supervision and control of

ORI. While ORI may have failed to maintain sanitary protocols, provided

A-3809-21 16 negligent medical care to plaintiffs, and violated a regulation by allowing

physicians to be supervised by a chiropractor, Next Medical had no authority or

responsibility to control any aspect of the operations of ORI or its treatment of

plaintiffs. The entry of summary judgment in favor of Next Medical and

Carousel is supported by the record.

Affirmed.

A-3809-21 17