Following a colloquy among the trial court, counsel for
DYFS, the Law Guardian, and the natural mother pro se, the trial
court entered an order directing a change of custody of a child
from DYFS to his natural mother, when no exigent circumstances
existed. We reversed and remanded directing that the court
conduct a proper evidentiary hearing on the issue of change of
custody.
Monday, November 3, 2008
State v. Jeffrey Nemes
10-30-08
A-6320-07T4
An interlocutory order denying a motion to dismiss on
double jeopardy grounds is not appealable as a final judgment.
A-6320-07T4
An interlocutory order denying a motion to dismiss on
double jeopardy grounds is not appealable as a final judgment.
Estate of Cordero, et al. v. Christ Hospital
On appeal from a grant of summary judgment in favor of the
defendant hospital, plaintiffs contend the evidence was adequate
to permit a jury to find the hospital liable for an
anesthesiologist's negligence under a theory of "apparent
authority." There is apparent authority when "a hospital by its
actions, has held out" a doctor as its agent and "a patient has
accepted treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital." Basil v.
Wolf, 193 N.J. 38, 67 (2007) (quoting and approving Arthur v.
St. Peters Hosp., 169 N.J. Super. 575, 581 (Law. Div. 1979)).
Based on the absence of evidence that the hospital "actively
held out" or "misled" the patient "into believing" that the
anesthesiologist was its agent, or that patient was misled, the
trial court dismissed plaintiffs' claim.
The court held that when a hospital provides a doctor for a
patient and the totality of the circumstances created by the
hospital's action and inaction would lead a patient to
reasonably believe the doctor's care is rendered in behalf of
the hospital, the hospital has held out that doctor as its
agent. We also hold that when a hospital patient accepts a
doctor's care under such circumstances, the patient's acceptance
in the reasonable belief the doctor is rendering treatment in
behalf of the hospital may be presumed unless rebutted. Appellate Divison Docket A-1289-07T1
defendant hospital, plaintiffs contend the evidence was adequate
to permit a jury to find the hospital liable for an
anesthesiologist's negligence under a theory of "apparent
authority." There is apparent authority when "a hospital by its
actions, has held out" a doctor as its agent and "a patient has
accepted treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital." Basil v.
Wolf, 193 N.J. 38, 67 (2007) (quoting and approving Arthur v.
St. Peters Hosp., 169 N.J. Super. 575, 581 (Law. Div. 1979)).
Based on the absence of evidence that the hospital "actively
held out" or "misled" the patient "into believing" that the
anesthesiologist was its agent, or that patient was misled, the
trial court dismissed plaintiffs' claim.
The court held that when a hospital provides a doctor for a
patient and the totality of the circumstances created by the
hospital's action and inaction would lead a patient to
reasonably believe the doctor's care is rendered in behalf of
the hospital, the hospital has held out that doctor as its
agent. We also hold that when a hospital patient accepts a
doctor's care under such circumstances, the patient's acceptance
in the reasonable belief the doctor is rendering treatment in
behalf of the hospital may be presumed unless rebutted. Appellate Divison Docket A-1289-07T1
Philip D'Ambrosio v. Department of Health and Senior
10-29-08
A-0914-07T3
The Department of Health and Senior Services has the
authority under the 1984 Emergency Medical Services Act,
N.J.S.A. 26:2K-7 to -53 (the "EMS Act"), to regulate emergency
medical technicians, commonly known as "EMT-Bs", who provide
basic life support services, despite the fact that the
classifications in the EMS Act do not specifically list EMT-Bs
as a discrete subcategory of EMTs. The corresponding
Departmental regulations pertaining to EMT-Bs, N.J.A.C. 8:40A-
1.1 to -10.4, are therefore valid and applicable to appellant's
effort to obtain recertification to serve in this State as an
EMT-B.
Additionally, the authority of the Department of Health and
Senior Services to certify EMTs such as appellant who happen to
serve on local rescue squads is not affected by municipal
certification requirements for rescue squad members set forth in
the Highway Traffic Safety Act of 1987, N.J.S.A. 27:5F-13.1 to -
43 (the "Traffic Safety Act"). The Traffic Safety Act
supplements, but does not supplant, the regulation of EMTs that
is conducted by the Department of Health and Senior Services.
A-0914-07T3
The Department of Health and Senior Services has the
authority under the 1984 Emergency Medical Services Act,
N.J.S.A. 26:2K-7 to -53 (the "EMS Act"), to regulate emergency
medical technicians, commonly known as "EMT-Bs", who provide
basic life support services, despite the fact that the
classifications in the EMS Act do not specifically list EMT-Bs
as a discrete subcategory of EMTs. The corresponding
Departmental regulations pertaining to EMT-Bs, N.J.A.C. 8:40A-
1.1 to -10.4, are therefore valid and applicable to appellant's
effort to obtain recertification to serve in this State as an
EMT-B.
Additionally, the authority of the Department of Health and
Senior Services to certify EMTs such as appellant who happen to
serve on local rescue squads is not affected by municipal
certification requirements for rescue squad members set forth in
the Highway Traffic Safety Act of 1987, N.J.S.A. 27:5F-13.1 to -
43 (the "Traffic Safety Act"). The Traffic Safety Act
supplements, but does not supplant, the regulation of EMTs that
is conducted by the Department of Health and Senior Services.
In the Matter of Thomas J. Kim, M.D. to Practice
10-28-08
A-1488-07T1
The authority of the New Jersey Board of Medical Examiners
includes the ability to grant licensure conditioned by a
reprimand. Because the Board is vested not only with the
greater power to deny, revoke, or suspend a physician's medical
license, N.J.S.A. 45:1-21, but also with the power to invoke the
lesser sanctions of warnings, reprimands, or censure, N.J.S.A.
45:1-22(a), we concluded that to limit the exercise of the power
to grant or deny licensure, separate from the imposition of a
lesser and perhaps more appropriate action, was irrational and
may thwart the effectiveness of the Board's fundamental dual
purpose -- to permit qualified physicians licensure while
protecting the State citizenry.
A-1488-07T1
The authority of the New Jersey Board of Medical Examiners
includes the ability to grant licensure conditioned by a
reprimand. Because the Board is vested not only with the
greater power to deny, revoke, or suspend a physician's medical
license, N.J.S.A. 45:1-21, but also with the power to invoke the
lesser sanctions of warnings, reprimands, or censure, N.J.S.A.
45:1-22(a), we concluded that to limit the exercise of the power
to grant or deny licensure, separate from the imposition of a
lesser and perhaps more appropriate action, was irrational and
may thwart the effectiveness of the Board's fundamental dual
purpose -- to permit qualified physicians licensure while
protecting the State citizenry.
Fiona Bayne v. Earl Johnson
10-27-08
A-0974-06T1
We denied palimony to the claimant who lived with her
paramour and his wife for a substantial period of time based
upon absence of proof of a promise of lifetime support and also
because claimant left the relationship voluntarily.
A-0974-06T1
We denied palimony to the claimant who lived with her
paramour and his wife for a substantial period of time based
upon absence of proof of a promise of lifetime support and also
because claimant left the relationship voluntarily.
Donald J. Trump v. Timothy L. O'Brien, et al.
10-24-08
A-3905-06T2
Following the publication of the biography, TrumpNation,
its subject, Donald Trump, sued its author, Timothy O'Brien, and
his publisher, claiming that O'Brien's report that Trump's net
worth was only $150 million to $250 million, not the billions
that Trump asserted, was defamatory. During discovery, Trump
sought the identification of the three sources of O'Brien's
information, along with notes of interviews with those sources.
O'Brien refused to produce the requested discovery, citing the
newsperson's privilege. The trial court, applying New York's
Shield Law, found the information unprotected and ordered
production of this and other information and documentation.
On appeal, we reversed, determining that the identity and
statements of the sources were protected by New York's Shield
Law. In doing so, we found that non-fiction books were
protected by that Law, the information contained in TrumpNation
was of public interest and thus "news," and that O'Brien's
sources were confidential. We also found that Trump had failed
to meet the burden required to defeat the qualified privilege
applicable to allegedly non-confidential materials. Although we
recognized that both the confidential and allegedly nonconfidential
materials that O'Brien refused to disclose would be
protected by New Jersey's Shield Law, we did not resolve the
conflict of law issue thus raised, finding it not to have
ripened.
A-3905-06T2
Following the publication of the biography, TrumpNation,
its subject, Donald Trump, sued its author, Timothy O'Brien, and
his publisher, claiming that O'Brien's report that Trump's net
worth was only $150 million to $250 million, not the billions
that Trump asserted, was defamatory. During discovery, Trump
sought the identification of the three sources of O'Brien's
information, along with notes of interviews with those sources.
O'Brien refused to produce the requested discovery, citing the
newsperson's privilege. The trial court, applying New York's
Shield Law, found the information unprotected and ordered
production of this and other information and documentation.
On appeal, we reversed, determining that the identity and
statements of the sources were protected by New York's Shield
Law. In doing so, we found that non-fiction books were
protected by that Law, the information contained in TrumpNation
was of public interest and thus "news," and that O'Brien's
sources were confidential. We also found that Trump had failed
to meet the burden required to defeat the qualified privilege
applicable to allegedly non-confidential materials. Although we
recognized that both the confidential and allegedly nonconfidential
materials that O'Brien refused to disclose would be
protected by New Jersey's Shield Law, we did not resolve the
conflict of law issue thus raised, finding it not to have
ripened.
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