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Sunday, February 24, 2013

No damages for possible violation here of Patient Bill of Rights

No damages for possible violation here of Patient Bill of Rights


DOCKET NO. A-1233-11T1





January 15, 2013

Submitted December 4, 2012 - Decided

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7070-10.

Arnold Greenstein, appellant pro se.

O'Connor Kimball, LLP, attorneys for respondents (Stephen E. Siegrist, on the brief).

Plaintiff Arnold Greenstein appeals from the summary judgment dismissal of his civil rights complaint against defendants Cogent Healthcare of New Jersey, P.C. (Cogent), and Sunitha Moonthungal, M.D.2 We affirm.
On January 14, 2010, plaintiff sought medical treatment at the Hackensack University Medical Center for persistent rib pain following a fall from his bicycle. He was admitted for treatment and first interviewed by a nutritionist the next day. She recorded his responses, including his statement, "[I] will kill myself if I don't lose weight."
Later on July 15, 2010, Dr. Moonthungal, who was employed by Cogent, performed her rounds and met with plaintiff, who became upset because he felt she ignored his question about necessary treatment. Plaintiff recalls Dr. Moonthungal offering a diagnosis of "a lung blockage" and explained he needed to use an oxygen canister. Plaintiff suggests she failed to consult with a pulmonologist.
A second consulting physician, Dr. Cyrus Yau, spoke to plaintiff and reaffirmed he might be required to continue his use of oxygen when discharged. That afternoon, plaintiff again spoke to Dr. Moonthungal because he wanted to check himself out of the hospital. She explained he needed to remain because his statement referencing a desire to harm himself required a psychiatric consultation. Plaintiff averred Dr. Moonthungal refused to issue his discharge. Dr. Moonthungal left the hospital at 7 p.m. The psychiatry department had not yet cleared plaintiff for discharge.
Later that evening, two psychiatrists evaluated plaintiff. At approximately 9 p.m., he desired to leave the hospital and was told by the nurses on duty he must execute a general release relieving the hospital and its staff for liability resulting from his "voluntary departure from said hospital and the termination of [his] stay as a patient therein." He declined to do so. After speaking to someone by telephone, the nurse was instructed she could not make plaintiff execute the release. He left the hospital at approximately 9:15 p.m.
Plaintiff's complaint alleged Dr. Moonthungal violated the New Jersey Patients' Bill of Rights; did not treat him "as a human being, but as a machine"; and engaged in a "shouting match." Further, he blamed her for including a retaliatory, false chart entry, listing him as suicidal (which he claims was subsequently removed from his records), requiring him to remain hospitalized. Finally, he attributes the release instruction to Dr. Moonthungal, who sought to be absolved of liability for her conduct. Plaintiff sought one million dollars for "[e]motional [s]tress and [d]istress, for the [t]hreat that would have put [him] in a [m]ental [h]ospital, and for [f]alse [i]mprisonment, in preventing [him] [f]rom leaving the [h]ospital unless he sign [sic] a 'General Release.'"
Following discovery, defendants moved for summary judgment. Judge Rachelle L. Harz considered the parties' arguments. The judge found no factual basis to support plaintiff's civil rights claims. She concluded Dr. Moonthungal did not violate the Patients' Bill of Rights, N.J.A.C. 8:43G-4.1, and, nevertheless, the sole remedy for such a violation was administrative. As for the tort claim of intentional infliction of emotional distress, the conduct alleged was not intentional, reckless, or outrageous, but rather the facts reflected "a concern for the well being of the patient[.]" Further, the judge determined the facts did not support a claim for false imprisonment, as defendants' actions were directed at reviewing plaintiff's expressed statement of possible self-harm. The judge dismissed plaintiff's complaint. Plaintiff appeals.
Our review of the trial court's decision is governed by well-established principles. When reviewing the grant of summary judgment, we "'view the facts in the light most favorable to plaintiff.'" Livsey v. Mercury Ins. Group, 197 N.J. 522, 525 n.1 (2009) (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 348 (2008)). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment."Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (internal quotation marks and citations omitted). We employ the same standard in our review.Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004) (citations omitted).
On appeal, plaintiff suggests factual disputes rendered summary judgment inappropriate. He poses several questions he believes should be presented to a jury for review. However, he has failed to present the foundational facts supporting determination by a trier of fact. For example, he asks: "May a physician require a patient to sign a 'general release' as a condition for [r]elease from a hospita[l]?" However, plaintiff admitted he did not know with whom the nurses were conversing on the telephone; he merely assumed it was Dr. Moonthungal. However, Dr. Moonthungal's shift ended at 7 p.m. and she left the hospital. Plaintiff also asks: "May a physician use the threat of the commitment to a mental hospital as a vendetta?" However, he cannot establish such a threat was ever uttered by Dr. Moonthungal.
We reject plaintiff's arguments, as "'unsubstantiated inferences and feelings' are not sufficient to support or defeat a motion for summary judgment."Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) (quotingOakley v. Wianecki345 N.J. Super. 194, 201 (App. Div. 2001)). "In addition, '[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'" Ibid.(quoting U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n67 N.J. Super. 384, 399-400 (App. Div. 1961)).
Regarding plaintiff's assertion rights granted by N.J.A.C. 8:43G-4.1 were abridged, Judge Harz correctly explained the remedy for such claims rests with the hospital administration, not the courts. Specifically, the regulatory provision states "[t]he hospital administrator shall be responsible for developing and implementing policies to protect patient rights and to respond to questions and grievances pertaining to patient rights." N.J.A.C. 8:43G-4.1(a).
The New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, was adopted "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin194 N.J. 607, 611 (2008) (citations omitted). However, plaintiff expressed no facts demonstrating Dr. Moonthungal or Cogent acted to deprive him "'of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State,'" or that the "'exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law.'" Ibid. (quoting N.J.S.A. 10:6-2(c)). Simply stated, Dr. Moonthungal provided medical advice after reviewing plaintiff's chart, which included his comments to the nutritionist and Dr. Yau's psychiatric referral. Because plaintiff had suggested he would kill himself if he did not lose weight, Dr. Moonthungal acted prudently, following through with the psychiatric consultation to assure plaintiff's protection.
Moreover, the doctor's conduct does not form the basis of the intentional torts of infliction of emotional distress or false imprisonment. See Taylor v. Metzger,152 N.J. 490, 509 (1998) (stating the proofs necessary to sustain a cause of action for intentional infliction of emotional distress); Mesgleski v. Oraboni330 N.J. Super. 10, 24 (App. Div. 2000) (listing the elements of false imprisonment).
Following our review of the arguments presented on appeal, in light of the record and applicable law, we conclude Judge Harz correctly determined there were no materially disputed facts, and summary judgment in favor of defendants was appropriate. Consequently, we may not disturb the dismissal of plaintiff's complaint.
1 Cogent Healthcare of New Jersey, P.C., was incorrectly named as Cogent Hospital Group.
2 Dr. Moonthungal's medical practice was dismissed from the litigation by order dated March 25, 2011.