FIRM NEWS:

We are pleased to welcome June DuBois MacCarthy, Esquire, who joined our law firm on January 2, 2007. June is a graduate of Rutgers University School of Law (J.D. 2001), and Susquehanna University (B.S. May, 1989).

PROFESSIONAL NEGLIGENCE

A Negligence Complaint Filed Against a Hospital Requires Plaintiff File a Certificate of Merit if Plaintiff was at the Hospital For the Sole and Specific Purpose of Receiving Medical Care and Treatment

In Ditch v. Waynesboro Hospital, 2007 WL 38387 (Pa.Super. January 08, 2007), Catherine S. Verdier suffered a stroke and was taken to the emergency department at Waynesboro. While being moved from the emergency department to a hospital room, Verdier fell from her hospital bed striking her head on the floor. Due to the fall, Verdier suffered a right orbital fracture and a subdural hematoma from which she died on March 26, 2002. Ditch, as the administratrix of Verdier's estate, filed a wrongful death and survival action. In this initial complaint, Ditch argues that Verdier's death was caused by the negligence and carelessness of Waynesboro, acting through its employees and agents. Specifically, Ditch averred that Waynesboro was negligent in failing to properly restrain Verdier, failing to properly train the staff with regard to proper procedures in transporting patients, and in leaving Verdier alone while she was being transported.

Waynesboro filed a Praecipe for entry of judgment of non pros against Ditch pursuant to Pa. R.C.P. 1042.6 for failing to file a certificate of merit, and the trial court granted its motion. Plaintiff filed a petition to open and/or strike the judgment of non pros and subsequently filed a certificate of merit as to Waynesboro. The trial court denied Ditch's petition to open and/or strike the judgment of non pros finding the original complaint raised a professional negligence claim and hence required a certificate of merit.

Plaintiff appealed raising, inter alia, the following question for review: Whether every negligence complaint filed against a hospital necessarily requires the plaintiff to file a certificate of merit if the plaintiff was at the hospital for the sole and specific purpose of receiving medical care and treatment?

Plaintiff likened her claim to one of “slip and fall.” The Superior Court disagreed stating:

Verdier was at the hospital to receive medical treatment for her stroke from Waynesboro and its employees. It was during the course of treatment that someone in the emergency room with medical knowledge made the decision to transport Verdier to a regular hospital room. Furthermore, the decision was made to transport Verdier without restraints. See Grossman, 868 A.2d at 571 (stating that consideration of medical condition in preparation of medical services implicates medical judgment); see also, Banfi v. American Hosp. for Rehab., 207 W.Va. 135, 529 S.E.2d 600, 606-07 (W.Va.2000)(noting that the decision of whether to restrain a patient is a technical medical determination). ‘Our Court has found that the actions of employees who assist with the care and treatment of a health care professional's patients form an integral part of providing professional services. See Yee, 878 A.2d at 912-13 . . . Reviewing Ditch's entire complaint, we conclude that the complaint should be characterized as one sounding in medical malpractice because ‘the conduct at issue constituted an integral part of the process of rendering medical treatment’ to Verdier. Grossman, 868 A.2d at 570 (citation omitted); see also, Yee, 878 A.2d at 913 (“The ultimate and unassailable fact is that in the case at bench, the injury caused to [the patient] occurred during, and as a direct result of the performance of professional services.”) (citation omitted).

The only support Plaintiff provided for her assertion that this claim is similar to a “slip and fall” case in a hospital was that expert testimony is needed to prove a medical malpractice case. Plaintiff averred that Waynesboro did not properly restrain Verdier during transport, that an agent, servant, or employee of Waynesboro left Verdier unattended before her fall, and that Waynesboro failed to properly train its employees in the proper procedures in transporting patients. The Court concluded that these averments would require expert testimony stating:

While the complaint states Verdier was in the hospital because of a stroke, it is unknown whether she was conscious or had any mobility upon being moved by Waynesboro employees from the emergency department to the hospital room. A layperson's lack of understanding of the effects of a stroke, the procedures in treating a stroke victim, as well as moving and monitoring them would necessitate expert testimony in this case.

EMPLOYMENT LITIGATION ISSUES

An Employer Cannot Be Required To Give Preferential Treatment to Female Employees Who Become Pregnant

In Larsen v. Township Of Branchburg, 2007 WL 135706 (N.J. Super. Jan. 22, 2007), an unpublished opinion, Plaintiff was employed as a patrol officer in the Township of Branchburg Police Department (Department) since January 1995. In June 2001, the Department eliminated its light-duty work policy. On December 9, 2002, plaintiff learned from Dr. Alan Morgan, her fertility specialist, that she was pregnant. On that date, Dr. Morgan gave plaintiff a note, confirming her pregnancy and “restricting her to light duty.” Plaintiff delivered the note to Chief Fitzgerald and requested that she be placed on a light-duty work schedule. Because plaintiff was not assigned to light duty, she applied for and received an unpaid leave of absence from the Department.

Plaintiff filed an application for disability benefits with the Township's disability insurer. Part of the application completed by Dr. Morgan stated: “Patient should not perform strenuous activities associated with being a police officer, breaking up fights, et cetera.” Concerning his prognosis, the doctor stated “desk job, light duty, no physical exertion, (running after thieves, et cetera).” Lastly, the note provided “[t]he patient has a normal pregnancy, but should avoid situations that will put her baby at risk, trauma, et cetera.” The disability insurer denied plaintiff's application because she “was having a normal pregnancy.”

After plaintiff delivered her daughter on August 23, 2003, she returned to work full time as a Township patrol officer on December 28, 2003, receiving all appropriate salary increments.

On April 4, 2003, plaintiff filed her complaint against the defendants, Township of Branchburg, Township of Branchburg Police Department, and Chief Fitzgerald, alleging disability, and perceived-disability discrimination under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. Plaintiff filed an amended complaint alleging gender discrimination under the NJLAD. Summary judgment was granted to defendant Chief Fitzgerald, dismissing all counts of the complaint. In a separate order, partial summary judgment was granted dismissing plaintiff's claims for disability and perceived-disability discrimination. The gender discrimination claim was tried to a jury. Plaintiff's claim for disparate treatment was dismissed on motion at the close of her case, R. 4:37-2(b). Plaintiff's disparate impact claim was submitted to the jury, resulting in a verdict of no-cause of action in favor of the Township and the Department. An order for judgment, dismissing plaintiff's complaint, was entered.

On appeal, plaintiff argued that the trial court erred in granting summary judgment, dismissing her disability and perceived-disability discrimination claims under the NJLAD. Plaintiff contends that defendants failed to provide a reasonable accommodation for her pregnancy by assigning her to a light-duty work schedule or to a comparable compensation post elsewhere in the Township. Plaintiff contends that a normal pregnancy without complications, qualifies as a physical disability under N.J.S.A. 10:5-4.1. The Court disagreed holding:

A normal pregnancy, absent complications, is not a “physical disability [or infirmity] ... caused by bodily injury, birth defect or illness....” N.J.S.A. 10:5-4.1. See also Haynes v. Bloomfield Tp. Educ. Bd., 190 N.J.Super. 36, 39 (App.Div.1983) (holding that a normal pregnancy is neither an illness nor an injury). Thus, plaintiff failed to establish a prima facie case of disability discrimination. Svarnas, supra, 326 N.J.Super. at 80.

Plaintiff also argued that even if she had not suffered from a disability as defined in the NJLAD, defendants' motion for summary judgment should have been denied because she had presented evidence that defendants had perceived her suffering from a qualifying disability. The Court provided:

It is not disputed that “those perceived as suffering from a particular [disability] are as much within the protected class as those who are actually [disabled].” Rogers v. Campbell Foundry Co., 185 N.J.Super. 109, 112 (App. Div.), cert. denied, 91 N.J. 529 (1982). Such claims, however, are premised on the defendant perceiving the plaintiff as having a physical or mental condition that would qualify the person as “disabled” under the NJLAD if the condition actually existed. See Heitzman v. Monmouth County, 321 N.J.Super. 133, 142 (App.Div.1999) . . . Here, defendants had perceived plaintiff as undergoing a normal pregnancy, which as previously stated, does not qualify as a disability under the NJLAD. The only evidence was that defendants believed plaintiff was pregnant, and that her pregnancy was normal and without complications. Accordingly, we are satisfied the trial court properly dismissed plaintiff's perceived-disability claim on summary judgment.

Plaintiff's claim of unequal treatment based on gender was dismissed at the close of plaintiff's case under Rule 4:37-2(b). On appeal, the Court agreed that plaintiff failed to establish a prima facie claim for disparate treatment, and that the trial judge correctly dismissed that claim stating “Plaintiff was treated by defendants the same as all other police officers, male or female. The no-light-duty policy was applied equally across the board, and there were no exceptions to the policy from the time it was established in 2001.” The Court provided, “Although childbirth is unique to women, and an employer is prohibited from discriminating against a woman who becomes pregnant, an employer cannot be required to give preferential treatment to female employees who become pregnant.” Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 404 (2005).