Glassman v. Friedel

• Decision Date: 03 December 2020
• Docket Number: DOCKET NO. A-4042-19T3
• Citation: 243 A.3d 1268,465 N.J.Super. 436
• Parties: Todd B. GLASSMAN, as Executor of the Estate of Jennifer K. Collum-Glassman, deceased, Plaintiff-Appellant, v. Steven P. FRIEDEL, M.D., Charles W. Farrell, M.D., Lon Weiner, M.D., Natacha Field, R.N., Tanya Gooden, R.N., Constance MacKay, R.N., Anuradha Thalasila, M.D., and Hackensack Meridian Health d/b/a Riverview Medical Center, Defendants-Respondents, and Juanito's Inc. and KLE Properties, LLC, Defendants.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 436

243 A.3d 1268

Todd B. GLASSMAN, as Executor of the Estate of Jennifer K. Collum-Glassman, deceased, Plaintiff-Appellant,

v. Steven P. FRIEDEL, M.D., Charles W. Farrell, M.D., Lon Weiner, M.D., Natacha Field, R.N., Tanya Gooden, R.N., Constance MacKay, R.N., Anuradha Thalasila, M.D., and Hackensack Meridian Health d/b/a Riverview Medical Center, Defendants-Respondents,andJuanito's Inc. and KLE Properties, LLC, Defendants.

DOCKET NO. A-4042-19T3

Superior Court of New Jersey, Appellate Division.

Argued September 21, 2020

Decided December 3, 2020

Christina Vassiliou Harvey, Freehold, argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Jonathan H. Lomurro, Freehold, of counsel; Christina Vassiliou Harvey, Freehold, of counsel and on the brief; Alan J. Weinberg, on the brief).

Jeffrey J. Niesz argued the cause for respondent Steven Friedel, M.D. (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Paul F. Schaaff, Jr., of counsel; Jeffrey J. Niesz, on the brief).

Matthew J. Heagen argued the cause for respondent Charles W. Farrell, M.D. (Grossman, Heavy & Halpin, PC, attorneys; Matthew J. Heagen, on the brief).

Charles C. Koernig, Parsippany, argued the cause for respondent Lon Weiner, M.D. (Kaufman Borgeest & Ryan, attorneys; Charles C. Koernig, Parsippany, and Jennifer C. Willis, on the brief).

Anthony M. Tracy argued the cause for respondents HMH Hospitals, Corp. d/b/a Riverview Medical Center, Natasha Field, R.N., and Tanya Gooden, R.N. (Ronan, Tuzzio & Giannone, attorneys; Anthony M. Tracy, of counsel and on the brief).

Michael R. Ricciardulli, Westfield, argued the cause for respondent Anuradha Thalasila, M.D. (Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys; Michael R. Ricciardulli, Westfield, of counsel and on the brief; Jessica J. Mahony, on the brief).

Herbert Kruttschnitt, III, Brick, argued the cause for respondent Constance MacKay, R.N. (Dughi, Hewit & Domalewski, PC, attorneys; Herbert Kruttschnitt, III, Brick, of counsel and on the brief; Ryan A. Notarangelo, on the brief).

Before Judges Messano, Suter and Smith.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In Ciluffo v. Middlesex General Hospital, we adopted a framework for trial courts to follow in addressing the thorny issues posed when a plaintiff settles a negligence claim with the original tortfeasor and proceeds to trial against a medical professional whose subsequent negligent treatment results in additional injuries and damages. 146 N.J. Super. 476, 370 A.2d 57 (App. Div. 1977). In Ciluffo, the plaintiff injured her neck when she fell down a flight of stairs at a friend's house. Id. at 479, 370 A.2d 57. After examining the plaintiff the next afternoon at the hospital, the defendant-doctor released her home with a cervical collar and medication for pain. Ibid. Further review by another doctor of the x-rays taken at the hospital revealed a fracture of the plaintiff's cervical spine. Ibid. Treatment of the fracture led to further complications, including the need for cervical traction

, and the onset of blood poisoning and pneumonia. Ibid.

The plaintiff settled her claim with the owner of the premises where she fell for $30,000. Id. at 480, 370 A.2d 57. Based on the evidence, the trial judge determined that plaintiff failed to prove any complications were causally related to the delayed treatment of the fracture. Ibid. He also "dismissed [the] plaintiff's claim for added pain and suffering for the period between her release from the emergency room and the time she reported back to the hospital for further treatment," concluding "in effect, that the claim for pain and suffering during the period of less than [twenty-four] hours during which treatment was delayed would not support a verdict in excess of the $30,000 already paid to plaintiff" by settlement with the premises owner. Id. at 480–81, 370 A.2d 57.

We observed that "[w]hen a plaintiff settles with the first of successive independent tortfeasors we usually do not know whether that settlement constituted payment in full for all claims." Id. at 482, 370 A.2d 57 (emphasis added). The initial tortfeasor — the owner of the premises — was "potentially liable for all the natural and proximate injuries that flow from the initial tort, including the consequences of medical treatment ... caused by his wrong." Ibid. (citing Knutsen v. Brown, 96 N.J. Super. 229, 235, 232 A.2d 833 (App. Div. 1967) ). However, we noted that "questions of liability may make [the] plaintiff's recovery from either tortfeasor uncertain[,]" and "[t]he degree of injury caused by the second tortfeasor adds another variable." Ibid.

In reversing and remanding for a new trial on liability and damages as to the doctor, we held that "where [the] plaintiff has settled with the first tortfeasor and claims that she was not paid for all of her injuries, she is entitled to have the injuries caused by the successive independent tortfeasor assessed and compared with the damages recoverable for all of her injuries." Ibid. (emphasis added). In other words, the plaintiff was entitled to have a factfinder apportion the damages caused by the two events, i.e., her fall and the delay in treatment.

Our decision then set forth what is the crux of this appeal. We held that if the plaintiff succeeded in proving the doctor's negligence and damages caused by the delay in treatment at a new trial, the defendant-doctor was entitled potentially to a pro tanto credit¹ against any award based on the plaintiff's prior settlement with the owner of the premises.

If the settlement exceeds plaintiff's total provable damages she would be entitled to no further recovery from [the doctor]. If the settlement exceeds the amount of her provable damages minus the damages caused by [the doctor], the amount of such excess should be credited against the damages assessed solely for the harm caused by [the doctor]. If the settlement is less than the amount of her total provable damages minus the damages caused solely by [the doctor], plaintiff should recover the full amount of damages assessed against [the doctor] alone for the pain and suffering allegedly endured by her during the delay in treatment within the first [twenty-four] hours.

[ Id. at 482–83, 370 A.2d 57 (citations omitted).]

We explained the rationale for awarding a full pro tanto settlement credit to the defendant-doctor if the plaintiff's settlement exceeded the amount of her total "provable damages" as determined by the jury, or a partial credit if the settlement exceeded the difference between the total amount of damages, and the amount the jury apportioned to the medical negligence:

[N]either tortfeasor in this case has an interest in the claim [the] plaintiff has asserted against the other except that, as here, where two parties commit successive independent torts, one may receive credit for part of the payment made earlier by the other tortfeasor "to avoid duplicating compensation to the plaintiff."

[ Id. at 483, 370 A.2d 57 (quoting Daily v. Somberg, 28 N.J. 372, 381–86, 146 A.2d 676 (1958) ) (emphasis added).]

Our decision in Ciluffo did not address the continued viability of a settlement credit after enactment of the Comparative Negligence Act (CNA), N.J.S.A. 2A:15–5.1 to -5.8.² However, since passage of the CNA, the framework we devised in Ciluffo for potentially awarding the non-settling tortfeasor a pro tanto credit based upon the plaintiff's settlement with the original tortfeasor has been accepted, albeit without significant analysis, by other reported cases. See, e.g., Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super. 108, 119, 914 A.2d 838 (App. Div. 2006) (" Ciluffo can be applied in situations, like the instant matter, where plaintiff is first subjected to a tort that brings him to a hospital where medical care providers then subject plaintiff to a second, independent tort."); Mitchell v. Procini, PA, 331 N.J. Super. 445, 456, 752 A.2d 349 (App. Div. 2000) ("[T]o avoid duplicating compensation paid to a plaintiff, the successive tortfeasor may receive a credit for part or all of the payment made by the initial tortfeasor." (citing Ciluffo, 146 N.J. Super. at 483, 370 A.2d 57 )).

None of these cases, however, discussed the continued viability, after enactment of the CNA, of awarding an adjudicated tortfeasor a pro tanto settlement credit absent any finding that the initial tortfeasor was culpably negligent. And, although the Court has cited Ciluffo with approval in other contexts, see Williamson v. Waldman, 150 N.J. 232, 252, 696 A.2d 14 (1997) ; Evers v. Dollinger, 95 N.J. 399, 411, 471 A.2d 405 (1984) ; Lynch v. Rubacky, 85 N.J. 65, 80 n.3, 424 A.2d 1169 (1981) (Clifford & Schreiber, JJ., dissenting), it has never endorsed application of a pro tanto credit to a successive tortfeasor based on a plaintiff's settlement with an initial tortfeasor.

Here, plaintiff Todd Glassman, as executor of the estate of his deceased wife, Jennifer K. Collum-Glassman, sued defendants Juanito's Inc. and KLE Properties, LLC (collectively, Juanito's), the restaurant and property owner of the site where Jennifer fell and fractured her left ankle.³ Jennifer received medical treatment for the injury, ultimately "coming under the care" of defendants Hackensack Meridian Health, d/b/a Riverview Medical Center, Doctors Steven P. Friedel, Lon Weiner, Charles W. Farrell, Anuradha Thalasila, and Registered Nurses Natacha Field, Tanya Gooden, and Constance MacKay (collectively, the Medical Defendants).

In an amended complaint that added the Medical Defendants, plaintiff alleged their negligence during surgery performed on Jennifer's left ankle five days after the fall led to post-operative complications and injuries to her right leg, including weakness, "impaired sensory motor function[,]" "[p]ost-operative compressive neuropathy

," "foot drop," and "[c]ompression of the distal aspect of the right sciatic nerve and peroneal nerve with sensory...