Salah v. Gilson, 041913 NJSUP, A-3617-11T2

Docket NºA-3617-11T2
Opinion JudgePER CURIAM
Party NameHASSAN H. SALAH, M.D., Plaintiff-Appellant, v. H. VICTOR GILSON, Ed.D, in his individual capacity, and CITY OF BRIDGETON BOARD OF EDUCATION, Defendants-Respondents.
AttorneyThe Vigilante Law Firm, P.C. and the Law Offices of Ralph Lamar, attorneys for appellant (Jacqueline M. Vigilante and Ralph Lamar, on the brief). Purcell, Mulcahy, O'Neill & Hawkins, LLC, attorneys for respondents (Alyssa K. Weinstein, of counsel and on the brief).
Judge PanelBefore Judges Lihotz, Ostrer and Kennedy.
Case DateApril 19, 2013
CourtSuperior Court of New Jersey

HASSAN H. SALAH, M.D., Plaintiff-Appellant,

v.

H. VICTOR GILSON, Ed.D, in his individual capacity, and CITY OF BRIDGETON BOARD OF EDUCATION, Defendants-Respondents.

No. A-3617-11T2

Superior Court of New Jersey, Appellate Division

April 19, 2013

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 10, 2012

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-228-10.

The Vigilante Law Firm, P.C. and the Law Offices of Ralph Lamar, attorneys for appellant (Jacqueline M. Vigilante and Ralph Lamar, on the brief).

Purcell, Mulcahy, O'Neill & Hawkins, LLC, attorneys for respondents (Alyssa K. Weinstein, of counsel and on the brief).

Before Judges Lihotz, Ostrer and Kennedy.

PER CURIAM

Plaintiff appeals from orders of the Law Division granting summary judgment to defendants, H. Victor Gilson and the City of Bridgeton Board of Education (Board), dismissing plaintiff's complaint alleging defendants violated his due process rights and free speech rights under the New Jersey Constitution, and that Gilson libeled, slandered and defamed him. We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.

I.

The motion record reveals that on February 28, 2009, plaintiff, a pediatrician, examined a three-year-old child at the request of the child's mother. The child was developmentally delayed and had been attending sessions at an "Early Childhood Center" run by the Board. Plaintiff, the child's regular pediatrician, examined the child's ear and found it swollen and red, with "deep marks that look like nail marks." Plaintiff asked the child's mother what had occurred, and the mother started to cry and said the "child has been coming back from school . . . hurt" every other day. She also said that she had complained to the school nurse, the teacher, the school's principal, and the bus driver, about her child, without avail.

Plaintiff concluded that the marks on the child's ear were "most likely due to an adult or . . . somebody whose nails are large." He added that he "didn't know whether it was really bullying by another student or was inflicted by a teacher or somebody who is older."

Because the examination took place on a Saturday, plaintiff could not call anyone at the school, and so he wrote a note on a prescription pad and gave it to the mother with instructions to "give that note on Monday to somebody." The hand-written note stated, "[U]nder my care, patient has physical, medical evidence of being abused/bullied in school. I urge the school and Board of Education to take their responsibility to make [the child] safe in school environment." That same day, plaintiff also reported the matter to the Division of Youth and Family Services (DYFS).1

The following week, the child's mother gave plaintiff's note to the school nurse, who then gave it to the school's principal. The principal forwarded the note to Gilson, who, at the time, was the superintendent of the Bridgeton school district. On March 5, 2009, Gilson responded to plaintiff with a letter, which stated:

I received a copy (see attached) of a very irresponsible prescription blank from you indicating your conclusion that one of our students, [the child], is being bullied in school and you infer the school is taking no action to protect him. I am considering filing a compl[ai]nt against you with the New Jersey State Board of Medical Examiners because of your written allegation. Your accusation is offensive, irresponsible, and you seem to be pandering to the parent. Do not appease the parent at the expense of the school. How do you know [the child] is being bullied in school? How do you know who caused the marks on [the child]? How do you know where he was when they occurred? How do you know what the school has done to address issues involving [the child]? If you want to report your concerns to us, please do so. Do not arrive at conclusions about the school without the facts.

Attached is the Bridgeton Board of Education Policy 5131.911(a) addressing "Harassment in School/Anti-Bullying." The nurse and principal have records indicating action that has been taken to address issues involving [the child]'s care at school. They have communicated with [the mother] and responded to her concerns, which are many. [The mother] has met with the teacher, school social worker, two nurses, assistant principal, and principal. The principal investigated [the mother's] allegations and they are unfounded. [The mother] has been contacted about her concerns and when addressed, she raises another concern. She has accused the bus driver of causing scratches on [the child]. She accused the teacher of causing scratches on [the child]. Yet, [the child] has come to school with filthy long unkempt fingernails suggesting [the mother] is not practicing good hygiene at home.

The relationship between [the mother] and the school staff is very important. The principal, teachers, and other employees at our Early Childhood Center are very aware of their responsibilities and take their jobs seriously. They care about the welfare of students and make efforts to forge positive relationships with parents. Your correspondence jeopardized that relationship and, quite frankly, I am surprised by your action.

Gilson sent copies of the letter to the school's nurses and doctor, some school administrators, a teacher and counsel.

By letter of March 12, 2009, plaintiff's attorney wrote to Gilson, challenging his statements in the March 5 letter, and conceding that while the school might have a "substantial amount of information" about the child, "how could [plaintiff] avoid notifying the school regardless of that information[?]" Counsel demanded a "written retraction and a written apology[, ]" absent which "legal action" would ensue against him. Counsel also advised if Gilson "ma[d]e good" on his "threat" to report plaintiff to the Board of Medical Examiners, plaintiff would "reserve all rights" in an "action against you and the Board of Education . . . ." The letter was also sent to several of the persons who had been sent copies of Gilson's letter.

On March 20, 2009, the Institutional Abuse Investigation Unit (IAIU) of the Department of Children and Families2 wrote to Gilson, informing him that it received a report on February 28, 2009, about the child and opened an investigation. The investigation revealed that the child had "superficial scratches to his ears" caused by another child in the classroom. The IAIU concluded that no abuse by adults had occurred, and that the allegation of abuse "is not substantiated." The record does not disclose precisely when Gilson received that letter.

On April 1, 2009, Gilson responded to plaintiff's counsel with a letter stating:

Your letter suggests to me that Dr. Salah's ignorance of the law or unwillingness to follow it is surpassed only by his arrogance. In answer to your question as to what I think, I think that Dr. Salah should follow the law as stated in N.J.S.A. 9:6-8.10. "Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services by telephone or otherwise." Your question offensively suggests to me that Dr. Salah was doing the district a favor by not calling the police. At least if he had called the police they would have known to follow the law. Unfortunately, I deal with DYFS all too often and I would rather follow the law and have DYFS do its job than have Dr. Salah make false written accusations. He was way out of line.

Furthermore, because Dr. Salah is a licensed professional[, ] I especially want him to follow the law because N.J.S.A. 9:6-8.14 states "any person knowingly violating the provisions of this act including the failure to report any act of child abuse having reasonable cause to believe that an act of child abuse has been committed, is a disorderly person." Did Dr. Salah immediately report his written conclusion that "patient has physical, medical evidence of being abuse/bullied in school"? Did he ever report it? Did he report it immediately?

I previously indicated to Dr. Salah in my letter that I do not think he should arrive at conclusions without an appropriate investigation. The Institutional Abuse Unit of DYFS has that investigative authority, not Dr. Salah. Had he adhered to the law and not wrongly indicted the Bridgeton Public Schools in a written document, we would not be exchanging letters. The only person who should be apologizing is Dr. Salah for behaving unprofessionally, not following the law, arriving at false conclusions, potentially damaging the relationship between the parent and school, and for now trying to cover up for his failings by having you try to intimidate and bully me into an apology.

The more I think about this, the more outraged I become. I continue to be appalled by Dr. Salah's behavior. In 36 years I have never seen such conduct from a doctor. He just doesn't get it! I am so appalled that I am no longer considering filing a report with the New Jersey State Board of Medical Examiners. I have filed a report. Now the Division of Youth and Family Services, Board of Medical Examiners, and the court can all do their jobs. I will have no further comment until Dr. Salah apologizes to the school district or you make good on your threat, in which case I will comment in court.

Copies of this letter were sent to the IAIU, and to the same individuals noted on Gilson's March 5 letter.

That same day, Gilson filed a complaint with the New Jersey State Board of Medical Examiners (Medical Board), alleging that:

Dr. Salah wrongly concluded and informed a parent...

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