Brien v. LomazowBrien v. Lomazow
- Reporters:
- ,
- Before:
- O'Brien, Stern J.A.D.
The opinion of the court was delivered by STERN, J.A.D.
Plaintiff Philip Brien, M.D., appeals from the dismissal of his complaint filed against defendant Steven Lomazow, M.D. We affirm.
Plaintiff‘s complaint alleged various torts as a result of a report defendant made against plaintiff with the New Jersey State Board of Medical Examiners (hereafter Board) and the Attorney General‘s Office. Defendant advised a Deputy Attorney General of a patient‘s statement that plaintiff had molested her while performing a medical procedure. The report resulted in an investigation by the Attorney General‘s Office, which
I.
Plaintiff‘s complaint filed against defendant in the Law Division sought compensatory and punitive damages, interest, attorneys’ fees and costs of suit. The first count alleged that defendant negligently made false allegations concerning plaintiff to the Board of Medical Examiners, and that such allegations caused charges to be filed against plaintiff seeking revocation of his license to practice medicine. It further alleged that plaintiff suffered extraordinary emotional stress, sustained damage to his reputation and expended substantial amounts of money to defend himself against such charges, which were ultimately dismissed by the Board.
In the second count, plaintiff charged that the statements “were made with knowledge of their falsity or in willful, wanton or reckless disregard of their truth or falsity.” The third count alleged that defendant‘s complaint to the Board was made “falsely, maliciously, and without probable cause.” The fourth count charged that defendant‘s negligent misstatements of fact caused plaintiff to suffer emotional distress. The third and fourth counts also alleged substantial damage to plaintiff‘s “personal and professional reputation.” The fifth count alleged that the misstatements of fact were made “intentionally” and
The sixth and eighth counts alleged that defendant, through his own conduct, and in conspiracy with other unknown doctors, sought to interfere with plaintiff‘s “prospective economic advantage.” The seventh count charged that defendant‘s actions were “of such [a] nature as to be violative of standards of civilized human conduct” and amounted to an outrage.
Pursuant to an order of the court, plaintiff subsequently filed a “more definite statement pursuant to
II.
The following was developed on defendant‘s motion for summary judgment. Since 1971, plaintiff has been associated as a physiatrist with Crippled Children‘s Hospital (hereafter hospital) in Newark. Defendant, a neurologist, became associated with the hospital in late 1981 or early 1982. At the time defendant first became associated with the hospital, plaintiff and Dr. Chanderana were the only physicians performing electromyograms (hereafter “EMG“). Defendant subsequently received permission to perform EMGs at the hospital. Hospital records indicate that he performed EMGs as of January 14, 1983. Plaintiff and Dr. Chanderana lodged objections to his performing EMGs at a hospital executive board meeting on February 14, 1983.
On May 19, 1982, Linda Scheland, a patient at the hospital, complained that plaintiff had molested her while performing an EMG the previous evening. It is undisputed that Scheland
Defendant maintains Scheland also reported the alleged incident to him. In his deposition, defendant indicated he was called in for a consultation with respect to Ms. Scheland by Dr. James Lee, her attending physician. He explained he visited Scheland in her hospital room and that she was upset and crying as she related the incident to him. Defendant subsequently made a notation in Scheland‘s file which read,“? paranoid Claims she was molested by M.D.”
After speaking with Scheland, defendant immediately went to the nurses’ station and related what Scheland had told him. In depositions, he reported that the nurses reacted in a “matter-of-fact” manner by stating they believed the incident “could have happened.” However, in the affidavit in support of his motion for summary judgment, defendant maintained the nurses stated that it was “quite probable” the event occurred “because these incidents with Dr. Brien ha[d] happened before.”
Plaintiff was called before the executive committee of the hospital on May 24, 1982 and denied Scheland‘s allegations. The matter was then referred to the legal affairs department of the hospital for investigation. There is no indication in the record of the results of the investigation, but plaintiff maintains the matter was “concluded” by the end of May 1982.
It is undisputed that at some point defendant contacted the Board or the Attorney General‘s Office about Scheland‘s allegations.1 In her affidavit in support of defendant‘s motion for
In her affidavit, Gelber stated that when defendant contacted her, he characterized Scheland as a mature and credible woman and stated that it was his firm impression that the nurses believed that similar incidents had previously occurred. She stated defendant indicated that because he was new at the hospital he did not know the nurses with whom he had spoken. Gelber also stated defendant told her he was not motivated by a desire to reduce the competition at the hospital.
According to Gelber‘s affidavit, defendant also contacted her on September 29, 1982 and informed her that he had become aware that plaintiff‘s reputation was known to the hospital administrator and the physician in charge of the hospital and that “orthopedists at the hospital were aware of such incidents happening to their patients.” Gelber had a further conversation with defendant on December 13, 1983 concerning a nurse “who was thought to have more specific information and who might be willing to speak with [Gelber].”
An independent investigation was conducted by the Attorney General‘s Office. Some of the female patients at the hospital, including Scheland, were interviewed by a committee of members of the Board. An investigation was also conducted by the Enforcement Bureau of the Department of Law and Public Safety. As a result of the investigations, it was determined
Defendant was not called as a witness at the administrative hearing, and his identity was kept confidential pursuant to
In his depositions in the Law Division action, defendant indicated he had reported other doctors to Gelber. In her depositions, Gelber stated that he reported three other doctors and that the reports were all subsequent to reporting plaintiff. Defendant asserted that he reported two other doctors — one prior and one subsequent to the reporting of plaintiff.
The ALJ rendered an initial decision in the administrative matter on March 22, 1985 in which she recommended that the charges against plaintiff be dismissed. She concluded the Board of Medical Examiners had not established the charges by a preponderance of the competent and credible evidence. The ALJ noted that she could not find the testimony of the complaining witnesses “as true and as sufficient to prove the allegations in the complaint,” particularly “because of the high probability that the drugs could have caused mental clouding, perception alteration and disorientation” and because each “suffered from attacks of acute anxiety [and] perceived greater
The Board of Medical Examiners announced its final decision on May 8, 1985 and issued a written opinion on June 10, 1985 in which it adopted the recommendation of the ALJ but, according to D.A.G. Gelber‘s affidavit, also “indicated that it was troubled by the seemingly unlikely coincidence that several women would independently make up stories of sexual impropriety by the same doctor.”
Plaintiff claims the administrative action caused him emotional distress and loss of referrals of patients for EMGs. He asserts that he perceived a sense of coldness from his colleagues which he “continues to experience.” He alleges that several doctors stopped referring patients to him, and letters from doctors were introduced to that effect. Plaintiff also claims he still experiences anxiety when examining women.
After conclusion of the administrative action, plaintiff‘s privileges at St. Clare‘s/Riverside Hospital (hereafter St. Clare‘s) were not renewed. Instead, Dr. Michael Brien, plaintiff‘s son, and Dr. Dong Cho entered into an agreement whereby they agreed to provide EMG services to St. Clare‘s. This contract for EMG services stated that an essential part of the agreement was that plaintiff would announce that he would not renew his privileges at St. Clare‘s “due to the exigencies of his private office practice.” A letter from the hospital vice president in accepting the agreement referred to the “integral component” relating to plaintiff whose privileges at the hospital were not renewed. As a result of a May 1985 Star Ledger article concerning the Board‘s disposition, plaintiff had been called before the hospital‘s executive director and apparently agreed to terminate his relationship with St. Clare‘s.
The Law Division judge held that counts one, two and five were barred by the statute of limitations pertaining to defamation actions,
In his oral opinion, the Law Division judge also dismissed plaintiff‘s malicious prosecution action (count three of the complaint). He reasoned that plaintiff had not established that defendant lacked probable cause to make a complaint to the Attorney General. He emphasized that defendant had merely passed on to the Attorney General information that had been supplied to him by a patient and that the Attorney General commenced the administrative hearing after conducting his “own independent investigation as to whether they‘re going to proceed or not.” He noted that defendant filed no complaint himself. He also commented that defendant‘s notation in the patient‘s file that she might be paranoid indicated an absence of malice on the part of defendant and that he merely referred the matter to the Board to evaluate based on its assessment of her credibility.
While the judge made it clear he was dismissing plaintiff‘s entire complaint, he did not specifically address the reasons for dismissing each count.
III.
Plaintiff first argues that the court erred in finding, as a matter of law, that he did not establish a claim for malicious prosecution. He maintains that bad faith and lack of probable cause are demonstrated by defendant‘s report of Scheland‘s allegation despite the fact he knew she was on a variety of medications which might interfere with cognition, and by the fact that he himself placed a notation in her file that she might be “paranoid.” He also asserts that defendant‘s failure to properly investigate the complaint and his re-characterization of
In reviewing a defendant‘s summary judgment motion, a court is required to give all favorable inferences to the plaintiff. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Defendant must demonstrate that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law.
There is no dispute that Scheland made an allegation that plaintiff molested her, as evidenced by Nurse Connell‘s report. There are some minor factual disputes in this matter, however. There is some inconsistency between defendant‘s deposition statements that the nurses to whom he reported Scheland‘s allegation stated that the allegation could be true as a general proposition, and his statement in his affidavit that the nurses stated that the allegation could be true because similar complaints had been made about plaintiff in the past. There also seems to be a disagreement between Gelber and defendant with respect to the date of defendant‘s initial communication.
Granting plaintiff the benefit of all favorable inferences, it can be assumed that defendant made a complaint about plaintiff to Gelber in either May or September 1982 after speaking to some nurses about the matter in May, with or without their stating that similar allegations had been made about plaintiff in
The elements of this cause of action and the disfavor with which these actions are viewed by the courts are well-established:
All parties have acknowledged the disfavor in which actions for malicious prosecution are viewed under our law. Such law suits tend to chill free access to our courts. See Penwag Property Co., Investors Inc. v. Landau, 76 N.J. 595, 597-598 (1978); Devlin v. Greiner, 147 N.J. Super. 446 (Law Div. 1977). This disfavor is manifested in the heavy requirements imposed upon a plaintiff to establish a prima facie case. Plaintiff must show that the original suit was (1) instituted without reasonable or probable cause; (2) actuated by malicious motive; (3) ended in favor of plaintiff and (4) resulted in special grievance to plaintiff. The absence of any one of these elements is fatal. See Ackerman v. Lagano, 172 N.J. Super. 468, 473 (Law Div. 1979). [Paul v. National Education Ass‘n, 189 N.J. Super. 265, 267 (Law Div. 1983), aff‘d 195 N.J. Super. 426 (App.Div. 1984)].
See also The Penwag Property Co., Inc. v. Landau, 148 N.J. Super. 493, 500 (App.Div. 1977), aff‘d 76 N.J. 595 (1978); Mayflower Industries v. Thor Corp., 15 N.J. Super. 139, 152 (Ch.Div. 1951), aff‘d 9 N.J. 605 (1952). Accord Westhoff v. Kerr Steamship Co., Inc., 219 N.J. Super. 316, 324 (App.Div. 1987), certif. den. 109 N.J. 503 (1987) (affirming summary judgment dismissing malicious prosecution action in absence of failure to establish lack of probable cause and actual malice).
The trial judge dismissed plaintiff‘s malicious prosecution count for failure to satisfy one of the necessary elements
With regard to the issues as to whether or not Dr. Lomazow had a [sic] probable cause to make the complaint to the Attorney General on the issue of malicious prosecution that the initial suit is brought without reasonable or probable cause, again, the Attorney General made that decision as to whether or not to pursue the complaint. The defendant didn‘t make that decision. The Attorney General‘s office is an independent agency and decides what complaints it shall pursue and which complaints it shall not pursue based upon the evidence before it. The defendant is not in a position to tell the Attorney General after they‘ve made their own independent investigation as to whether they‘re going to proceed or not. That‘s up to the Attorney General‘s office.
The Attorney General after its own independent investigation, based upon information that it had received, elected to proceed further. The fact that that information did not prevail at the time of trial in the face of counterinformation or countersuit — case presented by the plaintiff is of no moment. That‘s not the criteria, it‘s whether or not there was probable cause and, of course, that was determined by the Attorney General and, of course, the defendant in this case was not asked to determine probable cause and it would have been improper for that individual to attempt to determine probable cause. They‘re not empowered with that power in our criminal statutes, that‘s left up to the Attorney General. [Emphasis added].
Plaintiff claims that the Attorney General‘s subsequent investigation and actions are not relevant in considering what defendant previously did.
The issue is thus whether defendant had probable cause to pass on Scheland‘s allegation to the Deputy Attorney General. The immunity statute underscores a policy designed to promote such reports for investigation by the Board for the protection of the public. Hence, recovery in this case is barred both by established judicial precedent generally, see Paul, supra, 195 N.J. Super. at 428-430 (affirming summary judgment dismissing malicious prosecution suit following administrative proceedings), and by sound legislative policy related to encouraging reports of unprofessional conduct to the Board. It would appear unreasonable and inconsistent with legislative policy to require defendant to know there were enough facts to support a lawsuit or disciplinary action when he was only making a report for investigation to the Attorney General. As we recently recognized in Bainhauer v. Manoukian, 215 N.J. Super. 9, 37-42 (App.Div. 1987) (recognizing occasional privilege in defamation case), there is a strong public interest in encouraging
Defendant took no public action and filed no complaint. He merely referred the matter to the body charged with jurisdiction to investigate, and particularly in light of the undisputed claim evidenced by the report of Nurse Connell, he had just cause to do so without further investigation or verification on his part. See Paul, supra, 189 N.J. Super. at 271 (defendant insulated from liability where suit was based on information supplied by non-“impeccable” source). Moreover, the subsequent complaint filed by the Attorney General supports the inference that defendant reasonably determined that the allegation was credible enough to be passed on to the Attorney General. Cf. Lind v. Schmid, 67 N.J. 255, 265-266 (1975) (conviction in municipal court generally raises rebuttable presumption that probable cause existed); Zalewski v. Gallagher, 150 N.J. Super. 360, 367-368 (App.Div. 1977) (indictment supports inference of probable cause).
Probable cause is generally a matter for judicial determination. Westhoff v. Kerr Steamship Co., Inc., supra, 219 N.J. Super. at 321. A jury question is presented only where there is a dispute over the facts which affect the determination of probable cause. Ibid. Here, even assuming all the facts in plaintiff‘s favor — defendant‘s failure to investigate Scheland‘s complaint, his competitive motive against plaintiff and his subjective doubt about her credibility — defendant still had probable cause to report the complaint to Gelber, who was acting on behalf of the Board.
We are also of the view that plaintiff failed to suffer a special grievance. A “special grievance” consists of interference with one‘s liberty or property, such as the filing of a bankruptcy petition, granting of an injunction, filing of a lis pendens or wrongful interference with the possession or enjoyment of property. The Penwag Property Co., Inc. v. Landau, supra, 148 N.J. Super. at 501. Here, viewing the pleadings and
IV.
[a]ny person who falsely and maliciously and without probable cause makes a complaint orally or in writing, of unprofessional conduct against a member of any profession requiring a license or other authority to practice such profession, ... to any board or other public body authorized to and having the right to hear such complaint and to act thereon or to recommend action thereon and to take or recommend the taking of disciplinary action against the person complained of ... shall be liable for any and all damages suffered and sustained by the member of a profession so complained of, to be recovered in a civil action in
the nature of an action at law for malicious prosecution. In any such action, exemplary or punitive damages may be awarded.
Notwithstanding this statute designed to provide redress for the “regulated professional” “against a person who falsely, maliciously and without probable cause makes a complaint of unprofessional conduct against him to the agency charged with the regulation of his profession,” Grodjesk v. Faghani, 198 N.J. Super. 449, 454 (App.Div. 1985), mod. 104 N.J. 89 (1986),
A person who in good faith and without malice provides to the State Board of Medical Examiners any information concerning any act by a physician or surgeon licensed by the board which the person has reasonable cause to believe involves misconduct that may be subject to disciplinary action by the board, or any information relating to such conduct requested by the board in the exercise of its statutory responsibilities or which may be required by statute, shall not be liable for civil damages in any cause of action arising out of the provision of such information or services.
In Grodjesk, plaintiffs, two oral surgeons, endeavored to obtain the identity of a person who filed an unprofessional conduct complaint against them. After the surgeons were successful in proceedings before the State Board of Dentistry, they brought a malicious prosecution action against a former employee whom they suspected of being the complainant. We held that the identity of the complainant should be revealed because the proceedings had been terminated, favorably to plaintiffs, and disclosure would promote the policy embodied in
The point is that a person making an administrative complaint of unprofessional conduct against a professional has always been subject to liability for making a false and malicious complaint. His exposure to that liability may well have a ‘chilling effect’ on his willingness to make a complaint. But clearly, the Legislature‘s decision to accord a right of action to an abused professional represents its policy decision that in striking the balance between the personal interest of the professional and the public interest in taking appropriate action against unprofessional conduct, a ‘chill’ is reasonably placed upon the making of false and malicious complaints. This decision is most recently reflected in the 1983 adoption of N.J.S.A. 45:9-19.1 to 3, applicable only to complaints made to the State Board of Medical Examiners.N.J.S.A. 45:9-19.1 affords an immunity from civil liability to complainants whose information against a physician or surgeon is made ‘in good faith and without malice’ based on ‘reasonable cause to believe’ that there has been an act of misconduct. That protection, in effect, is the very same qualified immunity which, underN.J.S.A. 2A:47A-1 , subjects a complainant to civil liability for complaints which are false, malicious and without probable cause. The two statutes are therefore exactly parallel and not in any degree inconsistent. [198 N.J. Super. at 455-456].
As plaintiff has failed to establish a successful malicious prosecution action and that claim was properly dismissed, we conclude that defendant is entitled to the immunity embodied in
V.
In light of our conclusion about the immunity statute, we do not have to pass upon plaintiff‘s contention that the trial
VI.
Plaintiff contends the trial court erred in dismissing his allegation of interference with prospective economic advantage. The trial judge did not make any findings with regard to this portion of the complaint although it is clear that he intended to dismiss the entire complaint.
The gravamen of plaintiff‘s complaint on this count is that as a result of the administrative proceeding he lost staff privileges at St. Clare‘s and lost EMG referrals, which may be deemed prospective economic advantages.
Assuming for the purposes of review of a summary judgment motion that plaintiff has indeed suffered these losses, he still has not established the necessary elements of a cause of action for interference with prospective economic advantage. “Tort liability for interference with prospective economic benefit
Plaintiff does not argue that defendant made up the allegation or knew it was false. It is not disputed that a complaint was made, or that defendant had personal knowledge of the incident, and defendant had “reasonable cause” to believe that misconduct had occurred in reporting it to the Board.
In Hohl v. Mettler, 62 N.J. Super. 62 (App.Div. 1960), we held that the defendants in an interference with economic advantage action could not be held liable for making statements protesting plaintiff‘s application for a license for a trailer park because they had at least a conditional privilege to make the statements. Id. at 66-67. For the same reason, defendant cannot be held liable for statements which he was entitled to make to the Board and which our Legislature has encouraged by virtue of the immunity statute.7
We conclude that the trial judge properly dismissed the seventh count of plaintiff‘s complaint which alleged that defendant committed the tort of outrage. Plaintiff has not shown that defendant knowingly relayed misinformation, and it is undisputed that Scheland did make a complaint about plaintiff. In this context, it can hardly be termed outrageous that defendant, to better the image of his profession or otherwise, took it upon himself to relay the complaint to an investigating authority. The fact that defendant may not have had a legal duty to report the information hardly gives rise to a suit for the tort of outrage.
For all the reasons noted, independent of the statutory immunity, the judgment is affirmed.