No Breach of Contract or Negligence Per Se Claims in Medical Negligence Case

Labega v. Joshi, ___ N.J. Super. ___ (App. Div. 2022). Judge Accurso’s opinion in this case began as follows: “We permitted defendants in this medical malpractice action leave to appeal the trial court’s denial of their motions for partial summary judgment on plaintiff’s claims for breach of contract and hospital policy based on a third -party beneficiary theory as well as his claims for negligence per se for defendants’ alleged violation of the hospital policies incorporated into those contracts. Because well-established precedent makes clear neither cause of action is available to plaintiff in this case as a matter of law, we reverse.”

Plaintiff went to the emergency room at defendant JFK Medical Center (“JFK”). There, he was seen by some of the several individual defendants, including Jonathan Borja, PA-C. Another defendant, Hetal C. Joshi, an attending physician, signed off on plaintiff’s chart without having seen plaintiff. Both Borja and Joshi had contracts with defendant North Jersey Emergency Physicians, PA d/b/a Middlesex Emergency Physicians, PA (“Middlesex”). JFK had contracted with Middlesex to staff JFK’s emergency department.

Borja diagnosed plaintiff with a sprained ankle and sent him home with an air cast. But he returned to the emergency room a few days later, complaining of pain, and now cold, in his foot. “A vascular workup revealed a right popliteal occlusion from thrombus. When doctors were unable to restore blood flow, plaintiff underwent a below-knee amputation of his right leg.”

Plaintiff sued for medical negligence. Later, he filed an amended complaint that added claims for breach of contract and negligence per se. As Judge Accurso elaborated, “plaintiff alleged the terms of express contracts entered into between JFK and Middlesex, and those between Middlesex and Joshi and Borja, as well as JFK emergency department policies, procedures, and
protocols, required defendants to comply with specific terms and provisions governing patient care. Plaintiff further claimed that as a patient of defendants, he was an intended third-party beneficiary of those contracts, policies, protocols and procedures; that defendants breached their express obligations under their contracts and violated JFK’s emergency department policies, procedures, and protocols, and that those breaches and violations resulted in his injuries, thereby allowing him to recover damages. Plaintiff also alleged defendants were liable for negligence per se for violating JFK’s policies, protocols and procedures incorporated into the contracts because those acts or omissions ‘violate standards of care of professional practice that govern and guide patient care at JFK’s emergency department.'”

Defendants moved for partial summary judgment as to those new counts. The Law Division denied the motions. Defendants obtained leave to appeal, and the Appellate Division reversed, applying de novo review.

At oral argument, plaintiff’s counsel conceded that “it is not common in medical malpractice/negligence cases to permit theories of breach of contract, third party beneficiary and negligence per se claims to be asserted where implicated parties were or are required by contract to abide by hospital policies, procedures and protocols, in addition to statutory obligations.” Breach of contract claims, Judge Accurso said, “are rare, limited as they are to cases involving a ‘special agreement’ with a physician.” There was no special agreement here.

Rather, plaintiff asserted that he was a third party beneficiary of JFK’s policies and/or its contracts with Middlesex. But third party beneficiary law requires that the contracting parties intend that a third party benefit from their contract. The intent of the parties in this regard is a matter of law, Judge Accurso said. Here, the summary judgment record lacked any evidence of intent by “the parties to those contracts, JFK, Middlesex, Joshi and Borja, to permit a patient such as plaintiff to sue to enforce the contracts’ terms.”

The negligence per se claim fared no better. “If breach of contract claims in medical malpractice actions are rare, negligence per se claims are virtually non-existent.” Only “where a statute specifically incorporates a common law standard of care, as, for example, N.J.S.A. 39:4-97, the careless driving statute, which by its plain language prohibits negligent driving,” can a negligence per se claim stand. Even “the more liberal application of negligence per se represented by the Restatement [(Second) of Torts] is limited to violation of statutes or other governmental enactments; negligence per se has no applicability to a violation of a standard issued by a private, non-governmental entity such as JFK.”

Accordingly, the Appellate Division reversed the denial of partial summary judgment to defendants.