McFarlane v. S. Jersey Family Med. Ctrs.
| Decision Date | 30 August 2021 |
| Docket Number | A-0380-19 |
| Parties | OWEN R. MCFARLANE, M.D., Plaintiff-Appellant, v. SOUTHERN JERSEY FAMILY MEDICAL CENTERS, INC., LINDA Y. FLAKE, ATLANTICARE PHYSICIAN GROUP, P.A., BLAIR BERGEN, M.D., ATLANTICARE REGIONAL MEDICAL CENTER, and THE BOARD OF GOVERNORS OF ATLANTICARE REGIONAL MEDICAL CENTER, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 9, 2021
On appeal from the Superior Court of New Jersey, Law Division Ocean County, Docket No. L-2893-18.
Christina Vassiliou Harvey argued the cause for appellant (Lomurro, Munson, Comer, Brown & Schottland, LLC attorneys; Michael D. Schottland and Christina Vassiliou Harvey, of counsel and on the briefs; Angel Falcon, on the brief).
Emily J. Daher argued the cause for respondents Southern Jersey Family Medical Centers, Inc., and Linda Y. Flake (Ballard Spahr, LLP, attorneys; Louis L. Chodoff and Emily J. Daher of counsel and on the brief).
Eric M. Wood argued the cause for respondents Atlanticare Regional Medical Center, Atlanticare Physician Group, and Blair Bergen, M.D. (Eric M. Wood, of counsel and on the brief; Ciera A. Logan, on the brief).
Before Judges Ostrer, Accurso, and Enright.
Plaintiff Owen R. McFarlane, M.D. appeals from two orders dated August 26, 2019, one of which granted a motion to dismiss filed by defendants Southern Jersey Family Medical Center (SJFMC) and its President and Chief Executive Officer (CEO), Linda Y Flake, and the other of which awarded summary judgment to defendants AtlantiCare Regional Medical Center (ARMC), AtlantiCare Physician Group (APG) and Dr. Blair Bergen. We affirm.
I.
This litigation stems from the fact that on August 6, 2015, plaintiff, a licensed physician, and SJFMC entered into an "Agreement to Provide Medical Services" (agreement), which was signed by plaintiff and Flake, as President and CEO of SJFMC. The agreement was to commence on August 18, 2015, [1] and continue in force for a period of three years. Importantly, under the agreement's terms, SJFMC retained the right to terminate the agreement for various reasons, including if:
Also, under the agreement, plaintiff had to perform certain duties, such as "maintain privileges at [ARMC] and provide in-hospital care for [S]FMC's admitted] patients . . . within the accepted standards of Obstetrics and
Gynecology." Further, plaintiff agreed "to maintain the generally accepted community standards of professional care of all patients served by him." Consistent with the terms of the agreement, plaintiff applied for privileges at ARMC in August 2015 and received notice in October 2015 that he was approved for appointment to ARMC's medical staff.
Between February 2017 and June 2017, plaintiff had three "adverse medical events" at ARMC as follows:
Case One - On February 5, 2017, following a laparoscopically-assisted vaginal hysterectomy, plaintiff inadvertently packed the patient's rectum instead of her vagina. The next day, he examined the patient, noticed the vaginal packing was not present, and was unsure of its location. He ordered an abdominal x-ray, which revealed the gauze was coiled over the patient's pelvis. The patient was placed under anesthesia, and the packing was removed from her rectum. The next day plaintiff reported the incident to Dr. Bergen, who was ARMC's Chair of the Department of Obstetrics and Gynecology. The patient remained hospitalized until February 10, 2017.
Case Two - On May 12, 2017, plaintiff performed a dilation and curettage hysterectomy and a uterine polyp removal on a patient and released her that day. The patient went to the emergency room the following day, complaining of abdominal pain. Examination of the patient revealed a uterine perforation and a small bowel perforation, both of which plaintiff repaired. The patient experienced post-operative abscesses and required a three-week hospitalization.
Case Three - On June 2, 2017, plaintiff performed an abdominal hysterectomy on a patient who later developed septic shock. An exploratory laparotomy on the patient revealed bilateral ureteral injuries and urine in her abdomen. A urologist performed a repair procedure.
Based on his concern that these adverse incidents occurred in a short timeframe, Dr. Bergen discussed the situation with ARMC's Chief Medical Officer, Marilouise Venditti. Venditti believed a precautionary suspension was in order, so Dr. Bergen notified plaintiff on June 7, 2017 that his clinical privileges were being suspended. Venditti issued a letter the next day, informing plaintiff his privileges were precautionarily suspended pending an investigation and review by ARMC's Medical Executive Committee (MEC). The letter stated:
This precautionary suspension is being taken because your continued practice of medicine may present a threat to the life, health or safety of any patient, employee or other person, and the failure to take prompt action may result in imminent danger to the health or safety of any person. Please note that we deemed this action necessary because of concerns raised during [three] recent cases [from] 2/5/17 . . ., 5/13/17 . . ., and 6/2/17 .... Of additional concern is the short time frame between the latter [two] cases.
The letter directed plaintiff to contact Dr. Bergen and arrange for alternate medical coverage for his hospitalized patients as well as patients who might require hospitalization while plaintiff's privileges remained suspended.
On June 21, 2017, the MEC and Dr. Bergen met to review the medical records involving the three adverse cases which prompted plaintiff's precautionary suspension. The MEC determined plaintiff's clinical privileges should be temporarily suspended and recommended that the Board of Trustees terminate his privileges permanently.
On June 26, 2017, Venditti sent a letter to plaintiff, notifying him of the MEC's decision to "continue the precautionary suspension and to also recommend termination of [his] clinical privileges and Medical Staff membership to the [ARMC] Board of Trustees." She wrote: "At this time you may not attend to patients or otherwise consult on a scheduled, routine or emergency basis at the hospital or utilize hospital facilities for any reason." Plaintiff timely requested a hearing before the Fair Hearing Committee (FHC) to challenge the MEC's recommendation. In a letter dated August 4, 2017, Venditti acknowledged plaintiff's request and advised that an FHC had been appointed. Additionally, Venditti informed plaintiff that since her June 26 letter, "four additional cases of concern have been identified, two of which involve cesarean section deliveries with lacerations to the baby."[2] Those four additional cases were described as follows:
Case Four - On December 11, 2016, plaintiff performed an emergency cesarean section. Neonatology noted three shallow intraoperative lacerations over the baby's left lower chest.
Case Five - On February 17, 2017, plaintiff induced labor and left a sulcal tear in the patient. Plaintiff sutured the tear and when bleeding did not subside, used vaginal packing. Because the bleeding continued, another physician performed an exam under anesthesia and identified a third-degree vaginal laceration, which she repaired.
Case Six - On March 2, 2017, plaintiff performed an emergency cesarean section. A 0.75 cm laceration on the baby's right canthus medium (eyelid) was attributed to delivery. The baby was treated in the neonatal intensive care unit for heart issues and possible sepsis.
Case Seven - On March 3, 2017, plaintiff performed an abdominal myomectomy and excisional biopsy of a patient's uterine serosa. Plaintiff inadvertently cut the left uterine artery, which needed to be sutured.
The FHC conducted hearings in April and June 2018. Plaintiff was represented at the hearings by counsel and was provided with the medical records at issue. He also was permitted to call and cross-examine witnesses, and provide testimony from his own expert, Dr. Anthony C. Quartell.
ARMC presented testimony from Venditti and Dr. Bergen. Further, in preparation for the hearing, it retained Dr. Jay Goldberg as its obstetrical/gynecological expert. Based on Dr. Goldberg's review of the medical records, he found that the occurrence of numerous serious and rare adverse events within a six-month timeframe demonstrated plaintiff's clinical judgment, surgical skills, and regard for patient safety fell outside the standard of care. He wrote:
Dr Quartell reviewed the medical records and also prepared a report. He agreed plaintiff deviated from the standard of care in two cases,...
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