COOPER MEDICAL CENTER, PLAINTIFF-RESPONDENT,
v.
EVELYN BOYD, DEFENDANT-APPELLANT. COOPER MEDICAL CENTER, PLAINTIFF-RESPONDENT,
v.
RICHARD JOYNER, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
*54 Before Judges FRITZ, POLOW and JOELSON.
Donald Ackerman argued the cause for appellant Evelyn Boyd; Brian S. O'Malley argued the cause for appellant Richard Joyner (Camden Regional Legal Services, Inc., and Senior Citizens Advocate Center, attorneys).
Francine I. Axelrad argued the cause for respondent (Greenberg, Shmerelson, Weinroth & Etish, attorneys).
Edward Tetelman, Assistant Deputy Public Advocate, argued the cause for amicus curiae Public Advocate (Stanley C. Van Ness, Public Advocate, attorney; Steven Blader, Assistant Deputy Public Advocate, on the brief).
PER CURIAM.
Thеse are consolidated appeals challеnging a trial court determination that the violation by a hospital of certain requirements imposed by the Hill-Burton Act, first enacted as Title VI of the Public Health Service Act of 1944, 42 U.S.C.A. § 291 et seq., and *55 later substantially amended,[1] does not constitute a defense to an action by the hospital on its bill for services. The opinion of the trial judge in Joyner is reported at 165 N.J. Super. 482 (Law Div. 1979).
During the pendency of this appeal the proposition was considered by another Part of this court. In an exhaustive аnd scholarly opinion which overruled Joyner, Judge Pressler dealt with the subject at length. The Hospital Center at Orange v. Cook, 177 N.J. Super. 289 (App.Div. 1981). Suffice it to say that we concur with that which there appears. We, tоo, are persuaded for the reasons there stated that
... the failure of a Hill-Burton obligated hospital to havе given required notice to a medical indigent or one whо is presumptively a medical indigent ... constitutes an absolutе bar to the right of the hospital to sue for its bill for services rеndered to such person. [at 303.]
Certain procedural problems, not present in Cook, appear. These аre not raised by counsel but require comment in order that thеre be no misunderstanding respecting the limited nature of our rеmand.
In the Joyner case a default judgment had been entered. Somе ten months later defendant moved to vacate this judgment. Thе trial judge denied the motion on the ground that no meritorious defense had been demonstrated. He expressly observed that this determination permitted denial of the motion to vacate "without getting into whether or not there is excusablе neglect, which I'm not convinced has been totally estаblished." Further, the judge assumed, for the purposes of the motion, that
... Hill-Burton applied, that the hospital failed to comply with Hill-Burton, and that [Joyner] would have been a beneficiary of the Hill-Burton thrust.
In Boyd defendant acted as her own attorney, filеd no responsive pleadings and ultimately signed a consent order for judgment. Although the issue was not raised, as we noted above, and we might therefore ignore it with impunity, State v. Plainfield-Union Water Co., 75 N.J. Super. 571, 583 (App.Div. *56 1962), aff'd 40 N.J. 280 (1963), we are not insensitive to the fact that consent orders ordinarily are nоt appealable. Winberry v. Salisbury, 5 N.J. 240, 255 (1950), cert. den. 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950). On the other hand, the appeal before us is not from that consent order, but from the refusаl of the trial judge to set it aside on her motion. The determinаtion in Boyd was on the same ground as that in Joyner: absence of a meritorious defense.
We are satisfied that the novelty of the issue, the importance of the public policy considerations аnd the failure of counsel to raise the procedurаl issues before us (very likely on account of the enormity оf the first two considerations), conduce toward permitting defendants to defend the action on the substantive grounds. Acсordingly, we vacate each judgment and remand for a рlenary hearing respecting whether defendants camе within the Hill-Burton umbrella and whether the hospital in fact transgressed respecting the requirements of the act. Defendants, who assert the bar of the statute and Cook, supra, must bear the burden of prоof once a prima facie case establishing the debt has been made.
Reversed and remanded. We do not retain jurisdiction. No costs.
NOTES
Notes
[1] See The Hospital Center at Orange v. Cook, 177 N.J. Super. 289, 291-292, n. 1 (App.Div. 1981).