Gary A. Matusow v. Inspira Health Network, Inc

NOT FOR PUBLICATION WITHOUT THE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-3797-21

GARY A. MATUSOW,

Plaintiff-Appellant,

v.

INSPIRA HEALTH NETWORK,

INC., a/k/a SOUTH JERSEY

HEALTH SYSTEM, INC.,

GLADWYN D. BAPTIST,

M.D., DAVID S. SHIELDS, M.D.,

and STEVEN C. LINN, M.D.,

jointly, severally and in the

alternative,

Defendants-Respondents,

and

SOUTH JERSEY HOSPITAL, INC.,

and THOMAS F. MITROS, M.D.,

Defendants.

Argued September 25, 2024 – Decided November 12, 2024

Before Judges Mayer, DeAlmeida and Puglisi.

On appeal from the Superior Court of New Jersey, Law

Division, Cumberland County, Docket No. L-0216-19.

Anthony M. Bedwell Law, LLC, attorneys for appellant

(Anthony M. Bedwell and Alissa Pyrich, of counsel and

on the briefs).

Jennifer B. Barr argued the cause for respondents

(Cooper Levenson, PA, attorneys; Jennifer B. Barr and

Brittany A. Bonetti, on the brief).

PER CURIAM

Plaintiff Gary A. Matusow appeals from the Law Division's June 27, 2022

order granting summary judgment in favor of defendants Inspira Health

Network, Inc., a/k/a South Jersey Health System, Inc., South Jersey Hospital,

Inc., Gladwyn D. Baptist, M.D., David S. Shields, M.D., Thomas F. Mitros,

M.D. and Steven C. Linn, M.D., and dismissing plaintiff's complaint. We

affirm.

I.

Plaintiff, a gastroenterologist, held privileges at defendant South Jersey

Hospital, Inc. (hospital). He performed endoscopy procedures at the hospital

and other ambulatory surgical centers not affiliated with the hospital.

In 2007 and 2008, the hospital convened four ad hoc committees to

investigate plaintiff's performance. The first investigation concerned several

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procedures plaintiff performed using conscious sedation 1 (CS), and resulted in

a finding plaintiff "engaged in professional conduct which may have affected

the delivery of patient care and which [did] not conform to professional

standards as determined by the [m]edical [s]taff." The second and third

investigations concerned plaintiff's workplace behavior and failure to complete

a reappointment application, respectively, and both resulted in plaintiff's

reprimand and admonishment. Plaintiff then filed a complaint against

defendants2 alleging breach of contract and tort claims, and seeking injunctive

relief and monetary damages.

The fourth investigation again concerned plaintiff's practices including

the use of CS procedures. At his request, plaintiff began a fair hearing process

to address the allegations against him. In December 2012, the parties entered

into a settlement agreement, resolving the hospital's investigation, plaintiff's

complaint and the fair hearing process.

1

CS has been replaced by "moderate sedation," defined as "a drug-induced

depression of consciousness during which patients respond purposefully to

verbal commands, either alone, or accompanied by light tactile

stimulation." See 53 N.J.R. 2013(a), 2045 (adopted Oct. 13, 2021) (codified at

N.J.A.C. 13:35-4A.3).

2

Inspira Health Network, Inc. was not named as a defendant.

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Pursuant to the terms of the agreement, plaintiff agreed, "consistent with

the practice of other [g]astroenterologists at the [h]ospital . . . to utilize the

services of [a]nesthesia for the procedures he conducts at the [h]ospital and to

not utilize CS at the [h]ospital under any circumstances."

Plaintiff also agreed not to exercise CS privileges at South Jersey

Healthcare Regional Medical Center, a division of the hospital, unless he and

the hospital agreed in writing. The hospital consented to considering

reinstatement of plaintiff's CS privileges conditioned on its review of his

performance of CS at the independent ambulatory surgical centers.

The agreement also contains specific language for the hospital's reporting

obligations, including the National Practitioner Database 3 (NPDB):

The [h]ospital shall report the following to the [NPDB],

and to all other circumstances where there is a reporting

obligation:

It was proposed that the practitioner be

subject to corrective action for certain

alleged clinical and behavioral issues. The

hospital and the practitioner have agreed to

resolve all matters and therefore no

determinations were made by the Fair

Hearing Committee with respect to the

merits of such issues, and no corrective

action was implemented.

3

45 C.F.R. § 60.1 to .22.

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Five months after executing the agreement, the hospital filed a reporting

form with the New Jersey Division of Consumer Affairs (DCA). The form was

completed by Brenda Benton, the hospital's Director of Medical Staff Services,

and signed by Steven C. Linn, M.D. In the section of the form requiring the

reporting entity to describe "[t]he reportable action taken by the health care

entity," Benton checked the boxes indicating:

Voluntary relinquishment by health care professional

of any partial privileges or authorization to perform a

specific procedure if:

The health care entity is reviewing the

health care professional's patient care or

reviewing whether, based upon its

reasonable belief, the health care

professional's conduct demonstrates an

impairment or incompetence or is

unprofessional, which incompetence or

unprofessional conduct relates adversely to

patient safety.

However, when transcribing the reporting language specified in the

agreement, Benton mistakenly wrote, "It was proposed that the practitioner be

subject to corrective action for certain alleged criminal and behavioral issues."

(emphasis added). The hospital mailed a copy of the form to plaintiff. Six

months later, Benton was advised of the mistake and submitted an amended form

correcting the word "criminal" to "clinical."

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The New Jersey Board of Medical Examiners investigated plaintiff. In

October 2016, he voluntarily ceased practicing medicine pending the conclusion

of the investigation. While voluntarily suspended, plaintiff renewed several of

his patients' prescriptions and called in prescriptions for controlled substances

for himself using his partner's name. In July 2017, plaintiff surrendered his

federal Drug Enforcement Administration (DEA) registration, which the DEA

deemed to be for cause.

In May 2018, the Board's investigation concluded through a consent order

suspending plaintiff's medical license for three years and imposing other

conditions including education, programming and supervision. A subsequent

modified consent order permitted plaintiff to return to medical practice and

perform endoscopic procedures, subject to conditions including monitoring.

Upon conclusion of the monitoring period, plaintiff was permitted to petition

the Board for an unrestricted license.

In April 2019, plaintiff filed a complaint asserting breach of contract,

contending defendants violated the agreement by incorrectly reporting him to

the DCA. He sought compensatory and consequential damages, among other

relief. At the close of discovery, defendants moved for summary judgment,

which plaintiff opposed.

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After hearing oral argument on the motion, the trial judge granted

defendants' motion and dismissed the complaint. The judge reasoned:

[The agreement] ended the investigation. But for the

investigation, this restriction of privileges would have

never occurred, and you can't argue anything else. So

I think the hospital clearly, by law and . . . under the

terms of this agreement had to report to the DCA.

. . . [I]t's very unfortunate that . . . the hospital

person reporting and writing the information down on

the form wrote criminal instead of clinical where it was

supposed to be written. Did that have any effect on

what the Board of Medical Examiners did? I can't say

that it did.

....

I see nothing wrong that the hospital did. I think

they did exactly what they were obligated to do under

this agreement, and under law.

On June 27, 2022, the judge entered an order memorializing the decision.

This appeal follows, in which plaintiff contends the judge incorrectly concluded

defendants were required to report to the DCA, overlooked evidence defendants

reported incorrect information to the DCA and demonstrated bias against

plaintiff. He also argues a jury should have decided whether the defendants

acted in good faith in reporting to the DCA.

II.

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We review de novo a trial court's ruling on a motion for summary

judgment, applying the same standard used by the trial court. Samolyk v.

Berthe, 251 N.J. 73, 78 (2022) (citing Woytas v. Greenwood Tree Experts, Inc.,

237 N.J. 501, 511 (2019)). We must decide whether "there is [a] genuine issue

as to any material fact" when the evidence is "viewed in the light most favorable

to the non-moving party[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405-06 (2014) (first quoting R. 4:46-2(c); and then quoting Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "To decide whether a genuine

issue of material fact exists, the trial court must 'draw[ ] all legitimate inferences

from the facts in favor of the non-moving party.'" Friedman v. Martinez, 242

N.J. 449, 472 (2020) (alteration in original) (quoting Globe Motor Co. v.

Igdalev, 225 N.J. 469, 480 (2016)).

"The court's function is not 'to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.'" Rios

v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). "If

there is no genuine issue of material fact, the court must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).

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On de novo review, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Rowe v. Vell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration

in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

A motion for summary judgment must be granted "if the pleadings,

depositions, answers 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." R. 4:46-2(c).

We first address whether the hospital was required to report plaintiff to

the DCA under the New Jersey Health Care Professional Responsibility Act (the

Act), (codified at N.J.S.A. 26:2H-12.2a to -12.2d, with amendments to other

statutory provisions). Pertinent here, a hospital shall notify the DCA in writing

if a health care professional whom it has granted privileges

voluntarily relinquishes any partial privilege or

authorization to perform a specific procedure if: (a) the

health care entity is reviewing the health care

professional's patient care or reviewing whether, based

upon its reasonable belief, the health care professional's

conduct demonstrates an impairment or incompetence

or is unprofessional, which incompetence or

unprofessional conduct relates adversely to patient care

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or safety; or (b) the health care entity, through any

member of the medical or administrative staff, has

expressed an intention to do such a review . . . .

[N.J.S.A. 26:2H-12.2b(a)(4).]

Hospitals are required to report by submitting the requisite DCA form

within seven days of the reportable action or event. N.J.S.A. 26:2H -12.2b(e).

The DCA then forwards the report to the appropriate licensing board. N.J.S.A.

45:1-40.

Plaintiff argues the hospital was not required to file a report because he

did not permanently relinquish his CS privileges, he merely had a condition

placed on the privilege. We disagree.

Pursuant to the terms of the agreement, plaintiff could not practice CS

privileges at the hospital under any circumstances, until the hospital reinstated

those privileges. That is, he "gave up" or relinquished CS privileges, at least for

a time. Nothing in the Act limits a hospital's reporting obligation to physicians

who permanently relinquish privileges, and we reject plaintiff's cramped reading

of the statute particularly because its purpose is protection of the public. See 42

N.J.R. 2577(a), 2577 (Nov. 1, 2020) ("The Act was designed to strengthen

patient protections by assuring that health care professionals who have

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demonstrated impairment or incompetence or engaged in professional

misconduct become known to their licensing boards.")

We also find unavailing plaintiff's contention the hospital was not required

to report because it was no longer "reviewing" him at the time it made the report.

While not addressed by the parties, the Act requires a hospital to report within

seven days of the reportable action or event. N.J.S.A. 26:2H-12.2b(e). Thus,

the hospital was arguably required to report plaintiff to DCA within seven days

of forming an ad hoc committee to investigate his conduct regarding CS,

although it did not file the report until five months after the parties executed the

agreement. The reporting requirement was not extinguished by the agreement

because the hospital could not contract out of its statutory obligation to report,

and the agreement anticipated both federal and "other mandatory reporting."

Plaintiff further argues the hospital checked off the wrong box on the

reporting form, and instead should have indicated the reporting was based on:

Conditions or limitations placed on the exercise of

clinical privileges or practice within the health care

entity (including, but not limited to second opinion

requirements, non-routine concurrent or retrospective

review of admissions or care, non-routine supervision

by one or more members of the staff, completion of

remedial education or training).

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He further contends this error, along with the incorrect reporting of his

conduct as criminal, created disputed issues of fact as to whether the hospital

provided the information "in good faith and without malice," which should have

been resolved by a jury. We disagree.

There was no support in the record that the misstatement was anything

other than a clerical transcribing error corrected by Benton when she learned of

it. In addition, plaintiff cannot establish a loss or damages resulting from the

reporting, even viewing the facts in the light most favorable to him. He does

not challenge the hospital's report to the NPDB, which contained the agreed

upon language in the agreement and which the NPDB was required to forward

to the Board. See 45 C.F.R. § 60.18. The record was bereft of any evidence the

initial misreporting caused plaintiff any harm because the Board would have

conducted an investigation regardless of the information reported. N.J.S.A.

45:9-19.9(c). As here, "conclusory and self-serving assertions by one of the

parties are insufficient to overcome the [summary judgment] motion." Puder v.

Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted).

We next turn to plaintiff's contention the trial judge demonstrated bias by

expressing his personal opinion of plaintiff's competence as a physician,

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commenting on plaintiff's risk to future patients and suspension from practice,

and speculating on whether plaintiff had a substance abuse issue.

"Litigants ought not have to face a judge where there is [a] reasonable

question of impartiality." Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div.

2001) (quoting Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir.

1993)). The inquiry is whether "a reasonable, fully informed person [would]

have doubts about the judge's impartiality[.]" In re Advisory Letter No. 7-11 of

the Sup. Ct. Advisory Comm. on Extrajudicial Activities, 213 N.J. 63, 75 (2013)

(quoting DeNike v. Cupo, 196 N.J. 502, 517 (2008)). "[I]nappropriate

comments do not, by themselves, necessarily equate to bias." Panitch, 339 N.J.

Super. at 68 (citing State v. Leverette, 64 N.J. 569 (1974)).

The judge's comments about plaintiff's competence and suspension were

made in the context of the hospital's obligation to report his conduct and its delay

in doing so. Likewise, the judge mentioned plaintiff's substance abuse because

the record reflected he self-prescribed controlled substances and twice attended

a treatment program. Having reviewed the transcript, we are unconvinced the

judge's discussion, considered in the context of the motion, would cause a

reasonable, fully informed person to doubt the judge's impartiality.

Affirmed.

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