34 F.3d 1173 (3rd Cir. 1994), 93-5265, Lundy v. Adamar of New Jersey, Inc.

Docket Nº:93-5265.
Citation:34 F.3d 1173
Party Name:Sidney LUNDY; Claire Lundy, Appellants, v. ADAMAR OF NEW JERSEY, INC., t/a Trop World, Defendant/Third Party Plaintiff, v. Dr. Domenic Frank CARLINO, individually; Dr. Domenic Frank Carlino, a Professional Association, Third-Party Defendants.
Case Date:July 06, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1173

34 F.3d 1173 (3rd Cir. 1994)

Sidney LUNDY; Claire Lundy, Appellants,

v.

ADAMAR OF NEW JERSEY, INC., t/a Trop World, Defendant/Third

Party Plaintiff,

v.

Dr. Domenic Frank CARLINO, individually; Dr. Domenic Frank

Carlino, a Professional Association, Third-Party Defendants.

No. 93-5265.

United States Court of Appeals, Third Circuit

July 6, 1994

Argued Nov. 1, 1993.

Sur Petition for Rehearing Aug. 12, 1994.

Page 1174

Andrew F. Napoli (Argued), Norman R. Segal, Manchel, Lundy & Lessin, Philadelphia, PA, for appellants.

Stephen Hankin (Argued), Thomas F. Bradley, Hankin, Sandson & Sandman, Atlantic City, NJ, for appellee Adamar of New Jersey d/b/a TropWorld Casino and Entertainment Resort.

James P. Savio (Argued), Savio, Reynolds & Drake, Absecon, NJ, for appellees-third-party defendants, Dr. Dominic Frank Carlino and Dr. Dominic Frank Carlino, a Professional Ass'n.

BEFORE: BECKER and STAPLETON, Circuit Judges, and RESTANI, [*] Judge, United States Court of International Trade.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellant Sidney Lundy suffered a heart attack while a patron at appellee's casino, TropWorld Casino ("TropWorld"), in Atlantic City, New Jersey. While he survived, Lundy was left with permanent disabilities. Lundy and his wife here appeal from a summary judgment entered against them by the district court. Their appeal raises two issues: (1) what duty, if any, did TropWorld owe under New Jersey law to provide medical care to Lundy, and (2) whether the Lundys were entitled to amend their complaint to include an additional defendant, Dr. Dominic Carlino. 1

The district court held that TropWorld's duty is, at most, to provide basic first aid to the patron when the need becomes apparent and to take reasonable steps to procure appropriate medical care. Because the court found no evidence that TropWorld was negligent in carrying out this duty to Lundy, it granted TropWorld's motion for summary judgment. With regard to the Lundys' motion to amend, the court found that the amendment would not relate back to the time of the filing of the complaint under Rule 15(c) and, accordingly, that the alleged claim against Dr. Carlino would be barred by limitations. We will affirm.

I. FACTUAL BACKGROUND

On August 3, 1989, Lundy, a 66 year old man with a history of coronary artery disease, was patronizing TropWorld Casino.

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While Lundy was gambling at a blackjack table, he suffered cardiac arrest and fell to the ground unconscious. Three other patrons quickly ran to Lundy and began to assist him. The first to reach him was Essie Greenberg ("Ms. Greenberg"), a critical care nurse. Ms. Greenberg was soon joined by her husband, Dr. Martin Greenberg ("Dr. Greenberg"), who is a pulmonary specialist. The third individual who aided Lundy did not disclose his identity, but he indicated to Dr. Greenberg that he was a surgeon. During his deposition, Dr. Greenberg stated that, when he first arrived on the scene, Lundy was unresponsive, not breathing, and without a pulse. Dr. Greenberg testified that he, his wife, and the surgeon immediately began to perform cardiopulmonary resuscitation ("CPR") on Lundy.

Meanwhile, the blackjack dealer at the table where Lundy had been gambling pushed an emergency "call" button at his table which alerted TropWorld's Security Command Post that a problem existed. The Security Command Post is electronically designed to designate the location from which such alarms are triggered and record the time that the alarm is sounded. The alarm was recorded as being received at 10:57 p.m. Noting that the source of the alarm was "Pit 3," a Security Command Post employee notified by phone the security post located on the casino floor near where Lundy had suffered his cardiac arrest. At 10:59 p.m., the Security Command Post employee sent radio directions to all of the guards on the casino floor requesting that they each go to Lundy's location.

A sergeant in TropWorld's security force and a TropWorld security guard arrived at the blackjack table apparently within fifteen seconds of their receiving the radio message from the Security Command Post. The Greenbergs and the unidentified surgeon were already assisting Lundy. Upon arriving, the security guard called the Security Command Post on her hand-held radio and requested that someone contact the casino medical station, which was located one floor above the casino. Several witnesses agree that Nurse Margaret Slusher ("Nurse Slusher"), the nurse who was on-duty at the casino medical station at the time, arrived on the scene within a minute or two of being summoned. As soon as Nurse Slusher arrived, she instructed the security guards to call for an ambulance. TropWorld's records indicate that an ambulance was summoned at 11:00 p.m.

Nurse Slusher brought with her an ambu-bag, 2 oxygen, and an airway. 3 She did not, however, bring an intubation kit 4 to the scene. Dr. Greenberg testified that he asked Nurse Slusher for one and she told him that it was TropWorld's "policy" not to have an intubation kit on the premises. Dr. Greenberg also noted that Nurse Slusher told him that she previously worked at a different casino which did have an intubation kit in its medical station, and that she had requested one here as well. Nurse Slusher testified at her deposition that some of the equipment normally found in an intubation kit was stocked in TropWorld's medical center, 5 but that she did not bring this equipment with her because she was not qualified to use it.

Nurse Slusher proceeded to assist the three patrons in performing CPR on Lundy. Specifically, Nurse Slusher placed the ambu-bag over Lundy's face while the others took

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turns doing chest compressions. The ambu-bag was connected to an oxygen source. Dr. Greenberg testified that he was sure that air was entering Lundy's respiratory system and that Lundy was being adequately oxygenated during the period when he was receiving both CPR treatment and air through the ambu-bag. Dr. Greenberg went on to say that the only reason he had requested an intubation kit was "[t]o establish an airway and subsequently provide oxygen in a more efficient manner." App. 228.

The TropWorld Security Command Post radio log reflects that an Emergency Medical Technician ("EMT") unit arrived at TropWorld by ambulance at approximately 11:03 p.m. The EMT's report lists 11:02 p.m. as the time of arrival. Based on the fact that he performed CPR "for what seemed like an extensive amount of time," Dr. Greenberg estimated that "at least twenty minutes" elapsed between the time Lundy suffered cardiac arrest and the time the EMT unit arrived at Pit 3. App. 220.

Upon the arrival of the EMT unit, a technician, with the help of the two doctor patrons, attempted to intubate Lundy using an intubation kit brought by the EMT unit. Dr. Greenberg claimed that, due to Lundy's stout physique and rigid muscle tone, it was a very difficult intubation, and that there were at least a half dozen failed attempts before the procedure was successfully completed. After intubation, Lundy regained a pulse and his color improved. According to EMT reports, the ambulance departed from TropWorld with Lundy at 11:27 p.m., and it arrived at the Atlantic City Medical Center, which is located less than one mile from TropWorld, at 11:29 p.m.

The Lundys filed this diversity action against TropWorld less than two weeks before the applicable statute of limitations expired on August 3, 1991. 6 TropWorld filed an answer to the Lundys' complaint on September 12, 1991, along with a third-party complaint against a Dr. Carlino. TropWorld alleged that, in the event it were held liable to the Lundys, it would be entitled to either contribution or indemnification from Dr. Carlino.

TropWorld had a contract with Dr. Carlino providing that he would run an in-house medical station to supply medical services for TropWorld's employees, guests, and patrons in cases of work-related injuries and injuries or sicknesses occurring on the premises. The contract required that Dr. Carlino provide a licensed physician on the casino premises for five hours each day, and a physician "on-call" for the rest of the day. Any physician selected by Dr. Carlino was subject to dismissal by TropWorld for good cause only. Furthermore, Dr. Carlino was obligated to have a registered nurse present in the medical station during the hours that the casino was open. Each nurse was to be chosen by Dr. Carlino, but was subject to dismissal by TropWorld for any reason whatsoever. The contract specifically stated that Dr. Carlino's status would be that of an independent contractor and the doctors and nurses at the station were to be employees of Dr. Carlino. In August of 1989, Nurse Slusher was a registered, licensed nurse with over fifteen years of experience.

Dr. Carlino's contract with TropWorld required him to stock the medical station with certain designated medical hardware, including a Puritan-Bennett Manual Resuscitator (i.e. an ambu-bag with oxygen), intravenous solutions for cardiopulmonary resuscitation, a cardiac board, an oxygen cylinder with nasal canula and mask, and a laryngoscope with intubation tube. 7 The contract, which was signed on December 11, 1987, required that medical services be performed for a period of two years in exchange for a flat fee from TropWorld.

According to the Lundys, they did not know that Nurse Slusher was employed by an organization other than TropWorld until TropWorld filed its third party complaint against Dr. Carlino on September 11, 1991. By this time, however, the two-year statute of limitations had expired. Eight months later, the Lundys filed a motion under Fed.R.Civ.P. 15(c) to amend their original complaint

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