Balthazar v. Atlantic City Medical Center, Civ.A. No. 02-1136.

• Decision Date: 15 August 2003
• Docket Number: Civ.A. No. 02-1136.
• Citation: 279 F.Supp.2d 574
• Parties: Enez BALTHAZAR, Plaintiff, v. ATLANTIC CITY MEDICAL CENTER, Atlantic City Medical Center Community Health Services, Barbara Henderson, M.D., Joseph DeStefano, M.D., Allan Feldman, M.D., Phillip Korzeniowski, M.D., DeStefano, Feldman & Kaufman, P.A., DeStefano, Feldman, Kaufman, & Korzeniowski, P.A. University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine And Richard Cooper, D.O., Defendants.
• Court: U.S. District Court — District of New Jersey

279 F.Supp.2d 574

Enez BALTHAZAR, Plaintiff, v. ATLANTIC CITY MEDICAL CENTER, Atlantic City Medical Center Community Health Services, Barbara Henderson, M.D., Joseph DeStefano, M.D., Allan Feldman, M.D., Phillip Korzeniowski, M.D., DeStefano, Feldman

& Kaufman, P.A., DeStefano, Feldman, Kaufman, & Korzeniowski, P.A. University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine And Richard Cooper, D.O., Defendants.

Civ.A. No. 02-1136.

United States District Court, D. New Jersey.

August 15, 2003.

COPYRIGHT MATERIAL OMITTED

Frank D. Branella, Philadelphia, PA, for Enez Balthazar.

Sean Robins, Gold, Butkovitz & Robins, P.C., Elkins Park, PA, for Atlantic City Medical Center and Atlantic City Medical Center Community Health Services.

Sharon K. Galpern, John A. Talvacchia, Stahl & DeLaurentis, P.C., Voorhees, NJ, for Barbara Henderson, M.D., and Phillip Korzeniowski, M.D.

Joseph A. Martin, Kerri E. Chewning, Archer & Greiner, P.C., Haddonfield, NJ, for Joseph DeStefano, M.D., Allan Feldman, M.D., DeStefano, Feldman & Kaufman, P.A., and DeStefano, Feldman, Kaufman & Korzeniowski, P.A.

Thomas F. Marshall, Mount Holly, NJ, for University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine and Richard Cooper, D.O.

OPINION

ORLOFSKY, District Judge.

Once again, this Court is confronted with the painful and difficult duty of determining whether to impose sanctions against an attorney pursuant to Rule 11 of the Federal Rules of Civil Procedure. In this case, an attorney who failed to file an Affidavit of Merit in a medical malpractice case in state court, thereby causing his client's case to be dismissed, has attempted under the guise of the federal RICO statute, to relitigate the merits of his client's state law claims in this Court. Moreover, Plaintiff's counsel has persisted in pursuing an action in this Court despite a letter from this Court warning him in advance of the risk of Rule 11 sanctions, should he do so, and the issuance of an Order to Show Cause as to why such sanctions should not be imposed. For the reasons that follow, I find that Plaintiff's counsel, Frank D. Branella, Esq., has violated Rule 11. Accordingly, I shall order Mr. Branella to complete continuing legal education courses in: (1) Federal Practice and Procedure; and (2) Professionalism and the Rules of Professional Conduct; (3) within one year from the date of this Opinion and Order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following factual recitation is based upon the allegations set forth in Plaintiff's Complaint filed with this Court on March 14, 2002. On January 27, 1998, Enez Balthazar ("Balthazar"), a resident of Ocean City, New Jersey, underwent a total abdominal hysterectomy at Atlantic City Medical Center ("ACMC"), a medical facility located in Pomona, New Jersey. Compl. ¶¶ 3, 5, 15. The procedure was performed by Defendants, Dr. Barbara Henderson ("Henderson") and Dr. Phillip Korzeniowski ("Korzeniowski"), physicians who specialize in obstetrics and gynecology, and was attended by Dr. Richard Cooper ("Cooper"), who was then a resident at ACMC working under the supervision of University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine ("UMDNJ"). Id. ¶¶ 6, 9, 15. On January 30, 1997, a board certified urologist, Dr. Barry Kimmel ("Kimmel"), discovered that Balthazar was suffering from a left uretal obstruction. Kimmel testified in a deposition that he believed Balthazar's left ureter had been lacerated during the hysterectomy performed on January 27, 1998. Id. ¶¶ 16, 18. Subsequently, on January 31, 1998, Kimmel, assisted by Henderson and Dr. Allan Feldman ("Feldman"), conducted an exploratory laparotomy, in which Kimmel discovered several stitches on and around Balthazar's left ureter. Id. ¶ 17.

A. The State Court Proceedings

On June 21, 1999, Balthazar commenced a medical malpractice suit in the Superior Court of New Jersey, Law Division, Camden County ("Superior Court") against ACMC, Atlantic City Medical Center Community Health Services (the "Community"), Henderson, Dr. Joseph DeStefano ("DeStefano"), Feldman, Korzeniowski, DeStefano, Feldman & Kaufman, P.A., DeStefano, Feldman, Kaufman, & Korzeniowski, P.A. (collectively, "the Associations"), UMDNJ, and Cooper.¹ Compl., Balthazar v. Atlantic City Medical Ctr. et al., No. L-4527-99 (N.J.Super.Ct. Law Div. June 21, 1999). In her complaint, Balthazar alleged that she sustained injuries as a result of the Defendants' allegedly negligent performance of the hysterectomy. Id. Specifically, she contended that "Henderson, Korzeniowski, and Cooper used medically unacceptable procedures which prevented their ability to identify, isolate and/or protect the Plaintiff's left ureter from being transected." Id. ¶ 19.

The Superior Court dismissed the action with prejudice against Henderson, DeStefano, Feldman, and Korzeniowski, because of Balthazar's failure to provide an Affidavit of Merit, pursuant to N.J. Stat. Ann. §§ 2A:53A-26, et seq. Order, Balthazar, No. L-4192-99 (N.J.Super.Ct. Law Div. May 14, 2001). Following discovery, Defendants, ACMC, UMDNJ, and Cooper, filed a motion for summary judgment, and Balthazar filed a motion for leave to amend the complaint to add allegations of common law battery, fraud, and fraudulent concealment. See Cert. of Thomas F. Marshall at Ex. F. On May 14, 2001, after hearing oral arguments, the Honorable Carol E. Higbee, J.S.C., granted Defendants' motion for summary judgment, denied Balthazar's motion for leave to amend the complaint, and dismissed the case as to all parties. Id. Judge Higbee explained her reasoning for this decision as follows:

The fact of the matter is we don't know what exactly what Cooper did.... Plaintiff suggests that the defendants are trying to forget on purpose, conceal what happened, and that because the patient's unconscious—and we do have a methodology for dealing with this ... If, in fact, a person's asleep in the operating room, negligence occurs, if you name everybody in the operating room bring them all in, have them all named defendants, the burden of proof's going to shift to them. That's your Anderson v. Sondberg [sic], that's your res ipsa in the operating room, that's your shifting of proofs that occur in those situations, but you have to have all the doctors in. You can't have—could have been one of the three doctors. We don't know which one, and two of them aren't in the case. If you've got all three doctors in the case then the defendants darn well better start remember [sic] who did what or they've got a problem.... Proving that nobody knows what happened is not sufficient proof to carry against the one defendant that's in this case.

See 5/14/01 Hr'g Tr. from Superior Court at 14-15. On June 26, 2001, Balthazar filed a notice of appeal to the Superior Court of New Jersey, Appellate Division ("Appellate Division"). Notice of Appeal, Balthazar, No. A-5661-00T3 (N.J.Super. Ct.App.Div. June 26, 2001).

On March 5, 2003, the Appellate Division affirmed Judge Higbee's decision. See Balthazar v. Atlantic City Med. Ctr., 358 N.J.Super. 13, 816 A.2d 1059 (App.Div. 2003). In addition to holding that Balthazar failed to "substantially comply" with the statutory requirements of providing an Affidavit of Merit, see id. at 23-24, 816 A.2d 1059, the Appellate Division found no evidence of fraud or fraudulent concealment in the record. Id. at 21-22, 816 A.2d 1059.

We do not find patent the "fraud" that plaintiff claims to exist, and find no other evidence to suggest that it occurred. Dr. Henderson presented a perfectly reasonable and essentially uncontroverted explanation for the existence of the two operative reports in Balthazar's hospital chart. Moreover, the second report was clearly designated "REDICTATION," thereby providing notice to anyone viewing the chart that another version had previously been given by her to the transcriber. Neither report contained overly exculpatory or inculpatory material. Both were dictated before damage to the ureter was discovered. Thus, this is not a case in which there is evidence of deliberate destruction or alteration of medical records in anticipation of the suit. Both operative reports existed in the chart essentially from the outset, and both were available to Balthazar for her analysis and use.

Id. at 21, 816 A.2d 1059. Balthazar has purportedly filed a Petition for Certification with the New Jersey Supreme Court. See Proposed Am. Compl. ¶ 49.

B. The Federal Court Proceedings

On March 14, 2002, Balthazar filed a Complaint in this Court, in which she alleged that Defendants, ACMC, the Community, Henderson, DeStefano, Feldman, Korzeniowski, the Associations, UMDNJ, and Cooper,² engaged in a pattern of racketeering activity as part of "an ongoing scheme to deprive Plaintiff of her property and ... an attempt to deprive the Plaintiff of due process of law in that the Defendants intentionally and maliciously sought to pervert the administration of justice." Compl. ¶ 36. According to Balthazar, Defendants engaged in an illegal campaign to cover up Henderson, Korzeniowski, and Cooper's allegedly negligent behavior during the January 27, 1998 hysterectomy. Specifically, Balthazar maintained that Defendants "provided false and fraudulent medical records ... with forged signatures," as well as "conspired to hide the whereabouts" of Cooper as she attempted to litigate her claims in state court. Id. ¶¶ 21-22.³

Accordingly, Balthazar alleged that Defendants conspired to defraud her "by impairing [her] ability to litigate the Malpractice Case and increasing the cost of litigation thereby wasting Plaintiff's assets," in violation of the federal RICO statute, 18 U.S.C. § 1962, and New Jersey's RICO statute, N.J. Stat. Ann. § 2C:41-4, Compl. ¶¶ 50, 59,⁴ as well as "conspired and agreed to commit fraudulent practices" against her and deprived her of her right to due process of law and equal protection in violation of 42...