SIMON v. GIANATIEMPO, M.D.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

LEO SIMON, LAURA SIMON, and JOHN

SIMON,

Civ. No. 2:19-cv-602 (WJM)

Plaintiffs,

v.

OPINION

CARMINE A. GIANATIEMPO, M.D.,

KILLOL PATEL, M.D., and ENGLEWOOD

HOSPITAL AND MEDICAL CENTER, INC.,

Defendants.

WILLIAM J. MARTINI, U.S.D.J.

In this medical malpractice action, Plaintiff Leo Simon (“Simon”) and his parents,

Plaintiffs Laura and John Simon (collectively, “Plaintiffs”), allege that Defendants

Englewood Hospital and Medical Center, Inc. (“Englewood Hospital” or the “hospital”),

Carmine A. Gianatiempo, M.D. (“Dr. Gianatiempo”), and Killol Patel, M.D. (“Dr. Patel”),

negligently performed Simon’s tracheostomy and failed to provide him with proper

medical care. This matter is before the Court on three motions for partial summary

judgment filed by Englewood Hospital, ECF No. 63; by Drs. Gianatiempo and Patel, ECF

No. 64; and by Plaintiffs, ECF No. 65. The Court did not hear oral argument. See Fed. R.

Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons that follow, Englewood Hospital’s motion

for partial summary judgment is GRANTED; Drs. Gianatiempo and Patel’s motion for

partial summary judgment is GRANTED; and Plaintiffs’ motion for partial summary

judgment is DENIED.

I. FACTUAL BACKGROUND 1

1 The Court derives this undisputed version of events from Plaintiffs’ Statement of Undisputed Material

Facts (“Pls. SUMF”), ECF No. 65-13, which, of the three statements of material facts filed by the parties,

presents the most complete account of Simon’s medical issues and tracheostomy procedure. See also

Englewood Hospital’s Resp. to Pls. SUMF, ECF No. 66; Gianatiempo and Patel Opp. Br. at 2, ECF No. 67

(adopting and restating Englewood Hospital’s responses to Pls. SUMF). After carefully reviewing the

parties’ statements of material facts, ECF Nos. 63-2, 64-3, 65-13, and the responses and counterstatements

thereto, ECF Nos. 66, 67 at 2, 71-2, 72-2, 74-1, the Court is prompted to instruct counsel for each party that

in future cases, they shall strictly comply with the local civil rules, specifically Local Civil Rule 56.1

governing motions for summary judgment. Those portions of the parties’ statements of material facts, and

the responses thereto, “that lack citation to relevant record evidence (unless admitted by the opponent),

On January 9, 2017, Simon, age nineteen, presented to the emergency room at

Englewood Hospital in Englewood, New Jersey, with complaints of chest pain and a fever.

Pls. SUMF at 1. By January 11, 2017, he had developed severe respiratory distress and

was transferred to the intensive care unit. Id. On January 12, 2017, Simon was intubated

and seven days later, on January 19, he underwent a percutaneous tracheostomy

procedure.2 Id. Dr. Gianatiempo performed the procedure without assistance and recorded

the details in a procedure note, writing that “Dr. K. Patel” performed the bronchoscopy

procedure. Id. at 1-2; Gianatiempo Dep. Tr. 60:18-61:8, 61:13-61:15. Dr. Patel, however,

was not the pulmonary doctor on call at the hospital that day, and he testified that he neither

performed the bronchoscopy nor was involved in Simon’s care. Patel Dep. Tr. 16:7-17:1,

18:24-19:2, 22:24-23:7.

On January 23, 2017, Englewood Hospital transferred Simon to the pediatric

intensive care unit at Columbia Presbyterian Hospital in New York. Pls. SUMF at 2. The

Englewood Hospital discharge summary reflects he had been diagnosed with Epstein-Barr

virus, Guillain-Barré syndrome, and pneumonia. Pls. Ex. 3. at 1-5, ECF No. 65-5. On

February 15, 2017, Columbia Presbyterian Hospital transferred Simon to the Kennedy

Krieger Institute in Maryland for rehabilitation. Pls. SUMF at 2. On March 24, 2017, he

presented to the emergency room at Johns Hopkins Hospital due to his enlarged

tracheostomy stoma measuring approximately thirteen centimeters in length, and his

tracheostomy tube repeatedly decannulating.3 Id. Simon’s medical expert, Robert F.

Ward, M.D. (“Dr. Ward”), a specialist in pediatric otolaryngology, testified that given the

size of the stoma, “[i]t would be very difficult to keep [the] trachea in place with any head

movement” and the “tracheostomy tube was so loose it was resting on [Simon’s] skin

instead of in [his] airway.” Ward Dep. Tr. 28:20-28:21, 131:16-131:21.

II. PROCEDURAL HISTORY

On January 17, 2019, Simon and his parents filed this medical malpractice suit

against Englewood Hospital, Dr. Gianatiempo, and Dr. Patel, alleging that they negligently

performed Simon’s tracheostomy and caused him to suffer a multitude of damages and

lasting injuries including a permanent open tracheal wound, prolonged hospitalization, a

three-month paralysis, muscular wasting and disuse atrophy, severe mental anguish and

emotional distress, disfigurement, and loss of chance for a cure. Compl. ¶ 23, ECF No. 1.

contain improper legal argument or conclusions, or recite factual irrelevancies” shall be disregarded. Helms

v. Ryder, No. 14-2470, 2017 WL 1356323, at *1 n.1 (D.N.J. Apr. 12, 2017) (citing L. Civ. R. 56.1(a)).

2 A tracheostomy, or tracheotomy, is “[a]n operation to make an opening into the trachea.” Stedman’s

Medical Dictionary 928900 (Westlaw). The surgically created opening is known as a stoma. Id. 851270.

3 Decannulation is the “[p]lanned or accidental removal of a tracheostomy tube.” Stedman’s Medical

Dictionary 229930 (Westlaw).

The Complaint, as amended, alleges four causes of action: “negligence and/or

medical malpractice” against Drs. Gianatiempo and Patel, for which Englewood Hospital

is also vicariously liable (First Cause of Action); lack of informed consent (Second Cause

of Action); and loss of a child’s services (Third Cause of Action). Am. Compl. ¶¶ 27-40,

ECF No. 4. The Fourth Cause of Action is labelled as one for vicarious liability against

Englewood Hospital, but alleges that the hospital is also liable for its own negligent acts,

like failing “to monitor, make sure, and/or supervise that the tracheotomy was properly

performed,” failing “to properly train their medical staff,” and failing “to have in place” a

variety of “appropriate policies and procedures.” Id. ¶ 45. The Court exercises subject

matter jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1332(a) based on the

diverse citizenship of the parties and an amount in controversy exceeding $75,000. See id.

¶ 2.

The parties now each move for summary judgment on different issues and claims.

Englewood Hospital asks the Court to determine that: (1) Plaintiffs’ Affidavit of Merit

cannot support vicarious liability claims for the negligence of unidentified hospital staff;

(2) Plaintiffs’ Affidavit of Merit does not support the direct claims asserted against the

hospital in the Fourth Cause of Action; and (3) damages against the hospital must be capped

at $250,000 pursuant to the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-8. Def.

Mov. Br., ECF No. 63-1. Drs. Gianatiempo and Patel ask the Court to determine that: (1)

Plaintiffs cannot establish a prima facie case of medical malpractice or failure to obtain

informed consent against Dr. Patel in the First and Second Causes of Action; and (2)

Plaintiffs Laura and John Simon cannot recover for loss of their adult son’s services in the

Third Cause of Action. Defs. Mov. Br., ECF No. 64-10. Finally, Plaintiffs ask the Court

to determine that there is no genuine factual dispute that Dr. Gianatiempo deviated from

the standard of care when he performed the tracheostomy. Pls. Mov. Br., ECF No. 65-14.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

when “the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” In deciding a motion for summary

judgment, the Court construes all facts and inferences in the light most favorable to the

non-moving party. Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).

The moving party bears the initial burden of showing the basis for its motion and

identifying those portions of the record which it believes demonstrate the absence of a

genuine issue of material fact—that is, the “absence of evidence to support the nonmoving

party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). Once the moving

party meets this burden, the burden shifts to the non-moving party to “come forward with

specific facts showing that there is a genuine issue for trial and do more than simply show

that there is some metaphysical doubt as to the material facts.” United States v. Donovan,

661 F.3d 174, 185 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986)) (emphasis in original and internal quotation marks

omitted). The non-moving party must present actual evidence that creates a genuine issue

for trial—reliance on unsupported assertions, speculation, or conclusory allegations is

insufficient to defeat a motion for summary judgment. Solomon v. Soc’y of Auto.

Engineers, 41 F. App’x 585, 586 (3d Cir. 2002) (citing Celotex, 477 U.S. at 324); see also

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (nonmoving party may not

successfully oppose summary judgment motion by simply replacing “conclusory

allegations of the complaint or answer with conclusory allegations of an affidavit.”).

Furthermore, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48, (1986). “A fact is ‘material’ . . . if its existence or nonexistence

might impact the outcome of the suit under the applicable substantive law.” Santini v.

Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Anderson, 477 U.S. at 248, (1986)). “A

dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict for the

nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248).

IV. DISCUSSION

A. Drs. Gianatiempo and Patel’s Motion for Partial Summary

Judgment

The Court begins with Drs. Gianatiempo and Patel’s jointly filed motion for partial

summary judgment. ECF No. 64. The motion advances two arguments. As to the first

argument, Dr. Patel argues that he is entitled to summary judgment on the First and Second

Causes of Action because Plaintiffs cannot establish a prima facie case of medical

malpractice or failure to obtain informed consent. Defs. Mov. Br. at 3-7, ECF No. 64-10.

Dr. Gianatiempo does not seek summary judgment on the First or Second Causes of Action.

As to the motion’s second argument, Drs. Gianatiempo and Patel together argue that

they are entitled to summary judgment on the Third Cause of Action because Plaintiffs

Laura and John Simon cannot recover for loss of their adult son’s services. Id. at 6. The

Court addresses each of the two arguments in turn.

1. Whether Plaintiffs Have Established a Prima Facie Case

Against Dr. Patel

“A medical malpractice case is a kind of tort action in which the traditional

negligence elements are refined to reflect the professional setting of a physician-patient

relationship.” Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). To establish a prima facie case

of medical negligence based on a deviation from the standard of care, “a plaintiff must

present expert testimony establishing: (1) an applicable standard of care, (2) a deviation

from this standard of care, (3) injury, and (4) proximate causation between the breach and

the injury.” Jackson v. Fauver, 334 F. Supp. 2d 697, 740 (D.N.J. 2004) (quoting Teilhaber

v. Greene, 320 N.J. Super. 453, 465 (App. Div. 1999)). To establish a prima facie case of

medical negligence based on lack of informed consent, a plaintiff must show:

(1) the physician failed to comply with the [reasonably-prudent-patient]

standard for disclosure; (2) the undisclosed risk occurred and harmed the

plaintiff; (3) a reasonable person under the circumstances would not have

consented and submitted to the operation or surgical procedure had he or she

been so informed; and (4) the operation or surgical procedure was a

proximate cause of plaintiff’s injuries.

Fox v. Bayside State Prison, No. 14-5344, 2017 WL 960348, at *4-5 (D.N.J. Mar. 13,

2017) (quoting Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 79 (N.J. 2002)).

While expert testimony is not required to establish the “prudent patient” standard for

disclosure or to prove a physician failed to meet that standard, “a plaintiff cannot prevail

on a lack of informed consent claim . . . without expert testimony that the relevant risk was

recognized by the professional community.” Chamberlain v. Giampapa, 210 F.3d 154,

162 (3d Cir. 2000) (discussing Tyndall v. Zaboski, 306 N.J. Super. 423, 426 (App. Div.

1997)).

Here, there is a glaring absence of evidence, expert or otherwise, linking Dr. Patel

to the tracheostomy procedure or Simon’s medical care to support any claim against him

for medical malpractice. It bears repeating that Drs. Gianatiempo and Patel offered

conflicting testimony as to whether Dr. Patel was, in fact, the doctor that performed

Simon’s bronchoscopy procedure. See Gianatiempo Dep. Tr. 60:18-61:8, 61:13-61:15;

Patel Dep. Tr. 16:7-17:1, 18:24-19:2, 22:24-23:7. Fatal to Plaintiffs’ malpractice claims,

however, is that Plaintiffs’ sole expert report authored by their expert witness Alan Fein,

M.D. (“Dr. Fein”), contains no standard of care criticism of Dr. Patel. See Defs. Ex. D,

ECF No. 64-8. The report does not substantively discuss Dr. Patel at all. Id. Likewise,

Dr. Fein testified that he had no opinions as to a deviation from the standard of care on the

part of Dr. Patel. Fein Dep. Tr. 55:7-55:12, ECF No. 64-9. Without offering any expert

testimony concerning his involvement with Simon’s tracheostomy procedure, Plaintiffs

cannot establish a prima facie case of medical malpractice against Dr. Patel based on a

deviation from the standard of care or based on lack of informed consent. Dr. Patel is

therefore entitled to summary judgment on the First and Second Causes of Action for

medical malpractice and failure to obtain informed consent.

2. Whether Plaintiffs Can Recover for Loss of Their Adult

Child’s Services

Drs. Gianatiempo and Patel together argue that they are entitled to summary

judgment on the Third Cause of Action because Simon’s parents, Plaintiffs Laura and John

Simon, cannot recover for loss of their adult child’s services. Defs. Mov. Br. at 9-10, ECF

No. 64-10. In response, Plaintiffs contend that Simon was not emancipated at the time of

his injury, notwithstanding his age of nineteen, because he was medically and financially

dependent on his parents. Pls. Opp. Br. at 6-7, ECF No. 71. Plaintiffs further point out

that Englewood Hospital referred to Simon as a “nineteen-year-old boy” in his medical

charts and transferred him to a pediatric unit at Columbia Presbyterian Hospital. Id.

While New Jersey common law recognizes a parent’s cause of action for loss of

services in cases involving injury to a minor child, it presently does not recognize a parent’s

cause of action for loss of services in cases involving injury to a child who has reached the

age of majority. The New Jersey Superior Court, Appellate Division, addressed this very

issue in Tynan v. Curzi, 332 N.J. Super. 267 (App. Div. 2000). In that case, a parent sought

the right to seek per quod damages for lost services, earnings, society, and companionship

resulting from her nineteen-year-old daughter’s severe injuries sustained in an automobile

accident. Id. at 269. The daughter was legally blind and suffered cognitive deficiencies

that rendered her unable to care for herself, such that her parent became her appointed legal

guardian. Id. at 269-70. Her parent, similar to Simon’s parents here, argued that despite

her daughter’s age, her daughter was a second-year college student living at home prior to

the accident, and was not yet emancipated. Id. The Appellate Division stated:

The argument that a parent should be able to recover lost services of an adult

unemancipated child . . . where the child is so severely injured by a tortfeasor

that he or she is virtually totally disabled is compelling.

We are mindful of the moving and poignant circumstances confronting

plaintiff, as well as other parents, who may find themselves in similar

situations as the result of catastrophic injuries sustained by their

unemancipated children, regardless of age. We are not unsympathetic to

expanding the loss of consortium cause of action to include severely injured

adult unemancipated children.

Id. at 277. The Appellate Division recognized, however, that to expand the cause of action

to include severely injured adult unemancipated children would be to create “a new cause

of action beyond that which has been the common law of this State,” a function to which

“[a]n intermediate appellate court ‘should normally defer to the Supreme Court or to the

Legislature.” Id. As neither this Court nor the parties have uncovered authority overruling

or modifying Tynan, it remains that New Jersey does not recognize a parent’s cause of

action for loss of services in cases involving injury to an adult child. Drs. Gianatiempo

and Patel are therefore entitled to summary judgment on the Third Cause of Action for loss

of a child’s services.4

4 In ruling that Drs. Gianatiempo and Patel are entitled to summary judgment on the Third Cause of Action,

the Court has dismissed what appears to be the only claim of the Amended Complaint that Plaintiffs Laura

and John Simon have standing to assert. The Court refers to Plaintiffs collectively throughout this Opinion

for purposes of clarity, and notes the Complaint asserts each cause of action on behalf of Simon and his

parents, but it is not apparent that his parents have standing to assert the remaining medical malpractice

claims on Simon’s behalf.

B. Plaintiffs’ Motion for Partial Summary Judgment

Turning next to Plaintiffs’ motion, Plaintiffs argue they are entitled to partial

summary judgment because it is undisputed that Dr. Gianatiempo deviated from the

standard of care when he performed Simon’s tracheostomy seven days after Simon was

intubated, as opposed to waiting the standard fourteen days after intubation to perform the

procedure. Pls. Mov. Br. at 5-6, ECF No. 65-14. Plaintiffs presumably seek a judgment

in their favor on their First Cause of Action for medical malpractice against Dr.

Gianatiempo.

As previously stated, a plaintiff seeking to establish a prima facie case of medical

malpractice must prove that the physician deviated from recognized standards of medical

care and that this deviation proximately caused the injuries of which the plaintiff

complains. See Jackson, 334 F. Supp. 2d at 740. Contrary to Plaintiffs’ argument, the

parties’ experts present competing views on the recognized standard of care a physician is

required to exercise when performing a tracheostomy on an intubated patient. Plaintiffs’

expert Dr. Fein asserts that absent an emergency, “the standard of care is to wait at least

fourteen days after intubation before performing a tracheostomy,” while Defendants’

expert maintains that there is “no specific standard of care regarding the actual timing of

[a] tracheotomy” and given Simon’s “severe form of [Guillain-Barré syndrome] which

would require a long recovery and extensive rehabilitation,” “performing a tracheotomy

one week after intubation is certainly reasonable” as opposed to “prolonged endotracheal

intubation.” Compare Pls. Ex. 8 at 10, ECF No. 65-11, with Def. Ex. D at 26, ECF No.

66-6. Because this evidence creates a genuine issue of material fact as to the standard of

care and whether Dr. Gianatiempo’s clinical judgment was appropriate in Simon’s

circumstances, Plaintiffs are not entitled to summary judgment on their First Cause of

Action against Dr. Gianatiempo.

C. Englewood Hospital’s Motion for Partial Summary Judgment

The Court turns last to Englewood Hospital’s motion and examines whether (1)

Plaintiffs’ Affidavit of Merit can support vicarious liability claims for the negligence of

unidentified hospital staff; (2) Plaintiffs’ Affidavit of Merit supports the direct claims

asserted against the hospital in the Fourth Cause of Action; and (3) damages against the

hospital must be capped at $250,000 pursuant to the New Jersey Charitable Immunity Act.

1. Whether Plaintiffs’ Affidavit of Merit Complies with the

Affidavit of Merit Statute

New Jersey’s Affidavit of Merit (“AOM”) statute requires:

In any action for damages for personal injuries . . . resulting from an alleged

act of malpractice or negligence by a licensed person in his profession or

occupation, the plaintiff shall, within 60 days following the date of filing of

the answer to the complaint by the defendant, provide each defendant with

an affidavit of an appropriate licensed person that there exists a reasonable

probability that the care, skill or knowledge exercised or exhibited in the

treatment, practice or work that is the subject of the complaint, fell outside

acceptable professional or occupational standards or treatment practices.

N.J.S.A. 2A:53A-27 (emphasis added). The statute is designed to thwart baseless lawsuits

against certain “licensed person[s],” and permits cases to proceed only “if they have been

duly screened by an eligible affiant who vouches that they have sufficient indicia of merit.”

Hill Int’l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super. 562, 573 (App. Div. 2014). A

“licensed person” includes, among other licensed professionals, a “physician in the practice

of medicine or surgery” and “a health care facility.” N.J.S.A. 2A:53A-26(f), (j). As to

who qualifies as an “eligible affiant” in a medical malpractice case, “the AOM statute

imposes additional and quite specific rules,” but “the foundational requirement [is] that the

AOM be signed by an ‘appropriate licensed person’”—that is, “a person who holds the

same class of professional license as the defendant.” Endl v. New Jersey, No. 12-3564,

2016 WL 1224133, at *5-6 (D.N.J. Mar. 29, 2016) (citing Hill Int’l, Inc., 438 N.J. Super.

at 580-90 and discussing the AOM statutory framework in depth).

“Not every claim against a licensed person requires an affidavit of merit.” Harris

v. Health, No. A-2462-19, 2021 WL 1168377, at *4 (N.J. Super. Ct. App. Div. Mar. 29,

2021). “An ‘affidavit will only be needed when the underlying harmful conduct involves

professional negligence, implicating the standards of care within that profession.’” Id.

(quoting McCormick v. State, 446 N.J. Super. 603, 613-14 (App. Div. 2016)).

Here, Plaintiffs seek to hold Englewood Hospital liable for the actions of Drs.

Gianatiempo and Patel under a theory of vicarious liability, as well as for the hospital’s

own negligent credentialing, hiring, training, and supervising of its healthcare providers.

Because the hospital’s liability under either theory “hinges upon allegations of deviation

from professional standards of care by licensed individuals who worked for [it],” the statute

requires Plaintiffs to provide an AOM regarding these claims. Estate of Bowser v. Atl.

Cty., No. 18-5606, 2019 WL 1277515, at *3 (D.N.J. Mar. 20, 2019) (quotation marks and

citation omitted); Tentoni v. Jeffers, No. 08-1976, 2010 WL 4810758, at *4 (D.N.J. Nov.

19, 2010) (concluding plaintiff had an obligation to provide an AOM regarding negligent

supervision claim because the claim’s underlying factual allegations required evidence of

a deviation from the standard of care); Harris, 2021 WL 1168377, at *5 (concluding

plaintiff had an obligation to provide an AOM regarding direct and vicarious claims against

the hospital because the claims’ underlying factual allegations required evidence of a

deviation from the standard of care).

The pertinent question is whether the AOM provided by Plaintiffs meets the

statute’s requirements or is deficient in some regard, as Englewood Hospital argues it is.

Contemporaneous with filing their Complaint, Plaintiffs filed an AOM authored by Dr.

Fein, a board-certified physician specializing in the practice of pulmonary and internal

medicine and critical care. AOM ¶¶ 1-2, ECF No. 2. Dr. Fein’s experience includes private

practice as well as serving as the Director of Pulmonary and Critical Care Medicine at two

different hospitals from 1983 through 1997, and 1997 through 2001, respectively. Id. ¶ 3.

Having “performed tracheostomies, evaluated the performance of same and determined

whether tracheostomies are indicated in hundreds of patients,” Dr. Fein offered the

following opinion:

[T]he doctors involved in Leo B. Simon’s medical care, specifically Carmine

A. Gianatiempo, M.D., and Killol Patel, M.D., deviated from the good and

accepted standard of medical practice in performing a tracheostomy that was

not indicated and improperly performed on January 19, 2017. Each doctor

acted outside of the scope of their specialties as this was an elective non-

emergent procedure that should have been done by an Otorhinolaryngology

(ENT)/Head and Neck Surgeon.

Id. ¶ 4. Dr. Fein further opined that “the care, skill and/or knowledge exercised and/or

exhibited by the staff” and “by the agents and/or employees that were acting on behalf of

Englewood Hospital . . ., Carmine A. Gianatiempo, M.D., and Killol Patel, M.D. fell below

accepted medical standards and treatment practices” and were “a substantial contributing

factor in causing injuries to Leo B. Simon.” Id. ¶¶ 6-8.

Englewood Hospital challenges the sufficiency of the AOM on the grounds that Dr.

Fein’s statements implicating general, unnamed staff, agents, and employees cannot

support vicarious liability claims against the hospital.5 Def. Mov. Br. at 8-14, ECF No.

63-1. The Court agrees. “Courts have repeatedly held that a plaintiff’s AOMs must

specifically name the employees whose negligence underlies [the] vicarious liability

claims.” White v. Willingboro Twp., No. 18-10964, 2020 WL 3604091, at *4 (D.N.J. July

2, 2020) (collecting cases). While the AOM here specifically identifies Drs. Gianatiempo

and Patel, its references to unnamed staff, agents, and employees are merely blanket terms;

they do not put Englewood Hospital on notice of the identities or roles of any other

allegedly negligent healthcare providers on whom Dr. Fein may or may not be qualified to

opine. See, e.g., Johnson v. Handler, No. A-3862-13T3, 2015 WL 10677203, at *6-7 (N.J.

Super. Ct. App. Div. Apr. 15, 2016) (concluding that in vicarious liability cases against

healthcare facilities, an AOM must specifically identify whose negligence the affiant

purported to review; merely referring to the hospital’s “physicians and other healthcare

providers” was insufficient). To that end, Plaintiffs cannot base vicarious liability claims

against the hospital on the negligence of staff not explicitly identified in the AOM.

Englewood Hospital also challenges the sufficiency of the AOM on the grounds that

Dr. Fein did not offer, and is not qualified to offer, an opinion on Plaintiffs’ direct claims

5 The record reflects that Englewood Hospital objected to the AOM and notified Plaintiffs’ counsel of the

alleged deficiencies on multiple occasions throughout the early stages of this litigation. See Def. Exs. D-

G, ECF Nos. 63-8 through 63-11; see also Answer at 9, ECF No. 9 (demanding AOM for “any and all

claims asserted against [Englewood Hospital]”).

for negligent credentialing, hiring, training, and supervising of the hospital’s healthcare

providers. The hospital argues that Dr. Fein did not address “hospital policy, procedures,

and the like” related to the direct claims, nor is he qualified to do so. Def. Mov. Br. at 15,

ECF No. 63-1. Plaintiffs assert that Dr. Fein is qualified to opine on these claims by virtue

of his prior experience as a former Director of Pulmonary and Critical Care Medicine at

two hospitals. Pls. Opp. Br. at 5-6, ECF No. 72. Even assuming Dr. Fein is qualified to

offer an opinion on Englewood Hospital’s credentialing, hiring, training, and supervising,

the hospital is correct that Dr. Fein does not address these subjects, nor does he purport to

address them, in the AOM. He strictly confines his opinions to the performance of Simon’s

tracheostomy and the applicable standard of care for that procedure. Plaintiffs, therefore,

have not provided Englewood Hospital with an AOM that vouches for the meritoriousness

of the negligence claims asserted directly against it in the Fourth Cause of Action. Because

the failure to provide an AOM is deemed a failure to state a cause of action, Plaintiffs’

direct claims against the hospital must be dismissed.6 See N.J.S.A. 2A:53A-29 (deeming

noncompliance with the AOM statute a failure to state a cause of action); Couri v. Gardner,

173 N.J. 328, 333 (2002) (“[F]ailure to provide an affidavit results in dismissal of the

complaint.”).

2. Whether Englewood Hospital is Entitled to the Cap on

Damages Under the Charitable Immunity Act

Finally, Englewood Hospital invokes the Charitable Immunity Act, N.J.S.A.

2A:53A-8, and seeks an Order limiting its damages at trial for any alleged negligence. Def.

Mov. Br. at 25, ECF No. 63-1.

New Jersey’s Charitable Immunity Act limits the liability of nonprofit hospitals for

negligence at $250,000. N.J.S.A. 2A:53A-8. The statute provides:

[A]ny nonprofit corporation . . . organized exclusively for hospital purposes

shall be liable to respond in damages to such beneficiary who shall suffer

damage from the negligence of such corporation . . . or of its agents or

servants to an amount not exceeding $250,000, together with interest and

costs of suit, as the result of any one accident and to the extent to which such

damage, together with interest and costs of suit, shall exceed the sum of

$250,000 such nonprofit corporation . . . organized exclusively for hospital

purposes shall not be liable therefor.

Id. To qualify for the protections of the statute, “a defendant must demonstrate two

elements: (1) that the defendant is a charitable organization that is organized exclusively

for hospital purposes, and (2) that the plaintiff was a beneficiary of its services.”

6 This ruling does not disturb Plaintiffs’ vicarious liability claims against Englewood Hospital articulated

in the Fourth Cause of Action. See Am. Compl. ¶¶ 41-44, 47, ECF No. 4.

Hottenstein v. City of Sea Isle City, 981 F. Supp. 2d 292, 294 (D.N.J. 2013) (citing Mottola

v. Union City, 2006 WL 2177405, at *2 (D.N.J. July 31, 2006)).

The Court is satisfied that Englewood Hospital has met its burden as to both

elements. The hospital submitted an affidavit completed by its Chief Financial Officer,

Anthony Orlando, attached to which are the hospital’s Amended and Restated Certificate

of Incorporation, Revised Bylaws, and a letter dated September 23, 1996, from the Internal

Revenue Service. See Orlando Aff., ECF No. 63-3. The affidavit and documents reflect

that the hospital is a charitable organization within the meaning of Section 501(c)(3) of the

Internal Revenue Code and organized exclusively for the purpose of providing hospital

facilities and services for the treatment and care of acutely ill individuals. Id., Exs. A-C.

This evidence, which Plaintiffs do not challenge, sufficiently demonstrates Englewood

Hospital is a charitable organization within the meaning of the Charitable Immunity Act.

See Hottenstein, 981 F. Supp. 2d at 295 (finding defendants satisfied the Act by producing

certification from hospital staff stating that it was a nonprofit entity organized exclusively

for hospital purposes and a Revised Articles of Incorporation which supported that

assertion).

Likewise, Englewood Hospital demonstrates that Simon was a beneficiary of its

services. Simon presented to the hospital’s emergency room and remained a patient for

approximately two weeks, during which time he received medical treatment and care, the

very activities that the hospital was organized to advance. See Sexton v. Rizzetta, No. 15-

3181, 2017 WL 6055386, at *3 (D.N.J. Dec. 7, 2017) (finding that the “triage evaluation,

multiple medications, and other nursing assessments” that plaintiff received compelled the

conclusion that he was a beneficiary of the defendant medical center’s services); Mottola,

2006 WL 2177405, at *2 (“[E]very patient at the hospital receiving care is a beneficiary of

its work. Plaintiff has received treatment at both [hospitals] and is therefore considered a

beneficiary under the statute.”).

In opposition, Plaintiffs contend that the Charitable Immunity Act is inapplicable

because Defendants’ actions amounted to gross negligence. Pls. Opp. Br. at 12-13, ECF

No. 72; see N.J.S.A 2A:53A-7(c) (“Nothing in this section shall be deemed to grant

immunity to: (1) any nonprofit corporation . . . or its trustee, director, officer, employee,

agent, servant or volunteer, causing damage by a willful, wanton or grossly negligent act .

. . .”). But the Complaint does not articulate a claim for gross negligence, and Plaintiffs do

not explain how the evidentiary record demonstrates something more than the alleged

ordinary negligence. Their argument concerning the application of the Charitable

Immunity Act to grossly negligent behavior is therefore moot. See Hottenstein, 981 F.

Supp. 2d at 295, n.5 (finding plaintiffs’ gross negligence argument in response to the

application of the Charitable Immunities Act moot where plaintiffs raised the argument in

their opposition to defendant’s motion for summary judgment and failed to explain how

the evidentiary record supported allegations of gross negligence).

Accordingly, the Court finds Englewood Hospital is entitled to an Order limiting its

liability for negligence to damages of $250,000.

V. CONCLUSION

For the reasons stated above, Englewood Hospital’s motion for partial summary

judgment, ECF No. 63, is GRANTED; Drs. Gianatiempo and Patel’s motion for partial

summary judgment, ECF No. 64, is GRANTED; and Plaintiffs’ motion for partial

summary judgment, ECF No. 65, is DENIED.

As a result, any vicarious liability claims against Englewood Hospital based on the

negligence of unidentified employees or agents are DISMISSED WITH PREJUDICE;

any direct claims of negligence against Englewood Hospital are DISMISSED WITH

PREJUDICE; all claims against Dr. Patel are DISMISSED WITH PREJUDICE; and

Plaintiffs Laura and John Simon’s Third Cause of Action for loss of a child’s services is

DISMISSED WITH PREJUDICE. The following claims remain: Plaintiff Leo Simon’s

First Cause of Action against Dr. Gianatiempo for medical malpractice, Second Cause of

Action against Dr. Gianatiempo for lack of informed consent, and Fourth Cause of Action

against Englewood Hospital for vicarious liability based on the alleged negligence of Dr.

Gianatiempo.

An appropriate Order shall accompany this Opinion.

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

Date: April 21, 2022