Thomas Paschos and Assoc
July, 2007

EMPLOYMENT LITIGATION

Under the New Jersey Law Against Discrimination, Employers may be Held Liable for Refusing to hire Disabled Blind Applicants.

In Oliver v. Birchwood Adult Day Center, 2007 WL 191305 (N.J. Super. App. Div. July 5, 2007), an unpublished opinion, plaintiff, Sandfra Oliver, filed suit against defendants, Birchwood Adult Day Center, and several employees thereof, alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49. Specifically, plaintiff alleged that Defendants refused to hire her because of her disability, and failed to accommodate her disability. Defendants filed a Motion for Summary Judgment, which was initially denied, but then granted upon reconsideration. Plaintiff appealed that ruling. The Appellate Court reversed, reinstating the Complaint.

Plaintiff was a State licensed and certified social worker, holding a Bachelor’s Degree n Human Resource management, and a Master’s Degree. She was employed as a coordinator for the Resident Opportunity Self-Sufficiency Program with a local Township Housing Authority. She has been blind since age 33.

Defendant, Birchwood is an Adult Day Center. Defendants, William and Stephen Frohlich serve, respectively, as President and Administrator of Birchwood. Defendant Tracey Robinson was a social worker for Birchwood, and Defendant Janet Ocasio was an outside consultant with Birchwood.

In June 2003, Plaintiff responded to a newspaper advertisement for the position of social worker with Defendant, Birchwood Adult Day Center. In July, 2003, Plaintiff was interviewed by Defendants Ocasio and William Frohlich. Shortly thereafter, she was brought back for a second interview with Defendant Robinson, and Defendants Ocasio and Stephen Frohlich. Following the second interview, while Plaintiff was waiting for her ride, Defendant Ocasio approached and advised her that Birchwood could not hire her, because there were doubts about her ability to maneuver through the facility. When Plaintiff contested this, Defendant Ocasio rubbed plaintiff’s arm and stated, “I don’t think you can maneuver this building. I can’t hire you.”

This matter was examined under the three-part test set forth in McDonnell-Douglas. Under that test, Plaintiff had to first make out her prima facie case by showing, in part, that she was qualified for the position. Defendants asserted that Plaintiff was unable to meet this burden. Specifically, Defendants asserted that Plaintiff could not satisfy the requirements of N.J.A.C. 8:43F-5.1(a), because she could not perform a “visual” assessment of a client’s home, and she could not read and maintain the files. The trial court, in finding Plaintiff did not meet her burden, adopted Defendants’ arguments that (1) Plaintiff was required by code to make a “visual” assessment of a client’s home, and (2) the “JAWS” computer program which could convert scanned documents to audio would be extremely timely, and could not read many of their handwritten records.

The Appellate Division reversed the trial court’s decision, noting that Plaintiff had a “rather modest evidentiary burden” to meet in order to establish her prima facie case, and that the trial court did not view the evidence in the light most favorable to Plaintiff. With regard to the home assessment, the Appellate Division noted that the code did not require a “visual” assessment, and that Plaintiff could make such an evaluation based upon other criteria, as she had done in her prior position. Further, the Appellate Division found that the trial court should not have accepted as true Defendants’ assertions regarding the JAWS program, without Defendants having submitted any affidavit, certification, or other form of evidence to support their assertions.

Having found that Plaintiff met her burden and established her prima facie case, the Appellate Division reversed, and remanded the matter for further proceedings.


INSURANCE COVERAGE ISSUES

In Pennsylvania, a Plaintiff May Maintain an Action for Bad Faith Action Against an Insurer Under Both Statute and Common Law.

In Kakule v. Progressive Cas. Ins. Co., 2007 WL 1810667 (E.D. Pa. June 20, 2007), plaintiff, Kambale Kakule, brought suit against defendant, Progressive Cas. Ins. Co. alleging that defendant acted in bad faith by delaying and hindering payment on his claim. The District Court dismissed Count I (breach of contract) and Count III (Pennsylvania Unfair Trade Practices and Consumer Protection Law) of Plaintiff’s Complaint. Plaintiff then sought reconsideration of that order, or in the alternative, certification for immediate appeal. The District Court granted plaintiff’s Motion in part, reinstating Count I of the Complaint, breach of contract.

On January 5, 2003, while insured by Progressive Casualty Insurance Company, plaintiff was involved in a motor vehicle accident. When the driver of the other vehicle could not be located, plaintiff filed a claim with Progressive for uninsured motorist benefits. Plaintiff sought to recover $100,000, the maximum amount available under the policy, for injuries to his upper body. Progressive offered $18,000 in satisfaction of the claim. Plaintiff rejected that offer, and invoked the appraisal option under the policy. Following an arbitration panel decision in plaintiff’s favor, Progressive paid plaintiff the maximum amount available under the policy.

Thereafter, plaintiff brought suit against defendant, alleging bad faith in the mishandling of the claim. Plaintiff alleged breach of contract based upon Progressive’s bad faith conduct in handling the claim, statutory bad faith under 42 Pa. Cons. Cat. § 8371, and violation of Pennsylvania’s Unfair Trade Practices In Consumer Protection Law. Following the District Court’s dismissal of Counts I and III of plaintiff’s Complaint, plaintiff moved for reconsideration. As to Count I of Complaint, breach of contract, plaintiff based his motion on the grounds that the Court had erred in its interpretation of Pennsylvania law regarding the ability of insureds to raise contract claims against insurers for bad faith conduct.

In deciding plaintiff’s motion, the District Court was governed by the substantive law as pronounced by the Pennsylvania Supreme Court. Thus, the District Court looked to the matter of Birth Center St. Paul Co., Inc. 67 Pa. 386 (2001). In Birth Center, the Pennsylvania Supreme Court found that a breach of the insurer’s obligation to act in good faith is a breach of an insurance contract. Further, although a statutory scheme may be in place to deal with an insurer’s bad faith conduct, that statutory scheme does not alter the contract remedy available under common law. Accordingly, the District Court stated “it appears clear that Pennsylvania permits an insured to bring an action sounding in contract for the bad faith conduct of an insurer who fails to uphold its duty to defend its insured.” The District Court further found that the holding in Birth Center would apply to both first- and third-party insured situations.

The District Court next addressed whether plaintiff could recover emotional distress damages under his contract claim for breach of the duty of good faith and fair dealing. While the general rule in Pennsylvania has been that emotional distress damages are not recoverable under a breach of contract action, the Pennsylvania Supreme Court has stated that “the possibility cannot be ruled out that emotional distress damages may be recoverable on a contract where, for example, the breach is of such a kind that serious emotional disturbance was a particularly likely result.” Therefore, the District Court, having found that plaintiff might be able to establish a set of facts under which relief for emotional distress damages could be granted, granted plaintiff’s Motion for Reconsideration as to Count I, breach of contract, and denied defendant’s Motion to Dismiss Count I of the Complaint.


PROFESSIONAL LIABILITY

The New Jersey Supreme Court Rules That Where a Physician Performs a Procedure Not Reserved for a Specialist, the Appropriate standard of Care is that of a General Practitioner.

In Liquori v. Elmann, 191 N.J. 527, 924 A. 2d 556 (June 25, 2007), plaintiffs Patricia Liquori and John C. Liquori, filed suit against defendants, Elie Elmann, M.D, John D. Hunter, M.D., and various other parties, alleging wrongful death. Specifically, plaintiffs alleged medical malpractice, asserting that a negligently performed post-surgical procedure resulted in the death of their mother, and that informed consent was not obtained for the post-surgical procedure. Other claims contained within the complaint were dismissed prior to trial. The trial in this matter resulted in a jury verdict for Defendants. On appeal, the Appellate Court affirmed, with one judge dissenting as to the issue of whether the jury should have been charged as to the standard of care of a general practitioner versus a specialist, as to Defendant Hunter. As a result of the dissent, the matter proceeded to the Supreme Court, which found that the trial court had not erred when it charged the jury as to the standard of care for a general practitioner, versus that of a specialist.

On December 9, 1999, Plaintiff-Decedent underwent quadruple coronary bypass surgery, performed by Defendant Elmann with the assistance of Defendant Hunter. A chest x-ray performed post-surgery in the ICU revealed a collapsed lung. Because Defendant Elmann was in the middle of another surgery, Defendant Hunter was sent to attend to Plaintiff-Decedent. Defendant Hunter determined it was medically necessary to insert a chest tube, which he had done between 100 and 200 times over the prior 13 years, without event. Shortly after the insertion of the chest tube, Plaintiff-Decedent experienced distress, as well as substantial bleeding. Upon being advised of the situation, Defendant Elmann contacted his partner, Dr. Praeger, who immediately went to the hospital, and performed an emergency surgery on Plaintiff-Decedent. Dr. Praeger discovered and repaired a hole in the left ventricle of Plaintiff-Decedent’s heart, which he associated with the insertion of the chest tube. Plaintiff-Decedent later died from septic shock that had allegedly resulted from complications of her surgeries.

Prior to trial, the Court dismissed several of Plaintiffs’ claims, and granted plaintiffs’ motion for directed verdict on causation, finding that Plaintiff-Decedent’s death was caused by complications arising from the laceration to her heart during insertion of the chest tube. However, the jury returned a verdict in favor of defendants, finding that Defendant Hunter “did not deviate from the accepted standard of medical practice in the insertion of the chest tube.” Plaintiff appealed the jury verdict, raising thirteen separate issues on appeal, including whether the trial court erred in charging the jury to hold Defendant Hunter to the standard of care of a general practitioner, rather than that of a surgeon/specialist. The Appellate Division affirmed, although one judge filed a dissent, limited to the issue of the appropriate standard of care. The matter then proceeded to the New Jersey Supreme Court.

In evaluation the appropriate standard of care, the New Jersey Supreme Court first examined Defendant Hunter’s own testimony. Defendant Hunter was a licensed physician in the State of New Jersey. Although he completed a 2-year surgical residency program, he did not complete all steps necessary to become a board-certified surgeon. Further, at the time of the within, he was not eligible to participate in the process to become a board-certified surgeon. His title at the time was “cardiac surgery assistant/fellow,” and as such, he could perform various duties leading up to, and also post-surgery. He also assisted other surgeons during surgery. As to the bypass surgery herein, while Defendant Hunter assisted with the surgery, he was not the actual surgeon. Further, testimony was provided, and not disputed by plaintiffs, that the chest tube insertion was not a procedure reserved for specialists. Accordingly, because there was no debate concerning the proper standard of care for a physician attempting to insert a chest tube, the Supreme Court, in light of the evidence presented, found that the proper standard of care, that of a general physician, was applied, and so the judgment was affirmed as to that issue. The Supreme Court noted that, in this instance, there was no need to reach the dissenting judge’s broader issue as to whether the appropriate standard of care should be determined by the manner in which a physician “undertakes to act . . . and in that sense holds himself out.”



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