Ryans v. Lowell

• Citation: 484 A.2d 1253,197 N.J.Super. 266
• Parties: Gerald J. RYANS, Plaintiff-Appellant, v. Edward LOWELL, M.D., Defendant-Respondent.
• Decision Date: 23 October 1984
• Court: New Jersey Superior Court – Appellate Division

Page 266

197 N.J.Super. 266

484 A.2d 1253

Gerald J. RYANS, Plaintiff-Appellant, v. Edward LOWELL, M.D., Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted March 21, 1984.

Decided Oct. 23, 1984.

Vincent E. Halleran, Jr., Freehold, for plaintiff-appellant.

Shanley & Fisher, Morristown, for defendant-respondent (Thomas J. Alworth, Morristown, of counsel; Wanda M. Akin, Morristown, on the brief).

Before Judges FRITZ and DEIGHAN.

The opinion of the court was delivered by

DEIGHAN, J.A.D.

In this action plaintiff Gerald J. Ryans, alleges defendant Edward Lowell, M.D., a psychiatrist, made an improper diagnosis of plaintiff's condition by failing to examine the plaintiff and then making recommendations to the New Jersey Commission for Blind and Visually Impaired (Commission). Plaintiff contends that as a result of these recommendations, plaintiff's benefits from the Commission were terminated. Plaintiff appeals from a summary judgment in favor of defendant dismissing the complaint. We affirm.

Gerald Ryans had been a client of the Commission for many years having received numerous benefits including vocational training. Defendant is a psychiatrist retained by the Commission on a fee basis as a medical consultant. In August 1980, apparently in response to an application by plaintiff for further benefits, the Commission requested defendant to review the file of plaintiff for an evaluation. After his review of the file, defendant on August 6, 1980 prepared a handwritten memorandum as follows:

FROM: Dr. Lowell

SUBJECT: GERALD RYANS

I have overseen this C's case for a decade now. Clearly he is not FEASIBLE for REHABILITATION and the case should be closed as such. ALL data supports this; events have supported the data. Being intimidated by C, capitulating to his demands, manipulations, etc merely and malignantly feed his "act".

PAG felt him to be psychotic years ago.

PSYCHIATRIC opinion is: close out as (illegible) rehab ... immediately.

Case has chance--a declaredly remote chance of being re-opened IF meets both, not either of 2 requirements.

viz; (1) He allow, authorize and permit full disclosure of all pertinent (we determine this) data regarding his medical (illegible) state, including & especially psychiatric treatments, examinations & HOSPITALIZATIONS.

(2) He agree NOW to having psychiatric evaluation IF that is DETERMINED APPROPRIATE AFTER # (1) COMPLETED.

(3) He comply with rules, regulations, policies & practices of N.J.C.B. & not operate outside of channels.

Capitulation to his machinations is counter productive, counter rehabilitative, counter-therapeutic--and unconscionable squandering futilely of Commission funds.

This report was placed in plaintiff's file with other documents and was subsequently brought to the attention of Norma F. Krajczar, Executive Director of the Commission.

On August 15, 1980 Mrs. Krajczar sent a letter to plaintiff outlining the conditions required of plaintiff by the Commission for the continuance of benefits. These conditions reflected the conditions recommended by defendant. Receiving no response from plaintiff, on October 28, 1980 she again wrote to plaintiff concerning the conditions set forth in her letter of August 15.

On January 13, 1981 plaintiff finally met with Mrs. Krajczar to clarify the position of the Commission concerning the conditions under which plaintiff would continue to be eligible for benefits. On January 20, 1981 Mrs. Krajczar wrote to plaintiff and outlined those conditions.

Following are the conclusions of our conference which I noted in braille and presented to you for your concurrence:

1. We have reworked the conditions which we presented to you in our letter of August 15, have consolidated them from three (1) [sic ] points to one (1). That condition is as follows:

It will be necessary for you to sign a release form which will give us the opportunity to obtain all medical and psychiatric records related to your medical history. Depending upon the records we receive, we may or may not wish to request a further psychiatric evaluation for you which, of course, will be paid for by the Vocational Rehabilitation Department. Determination of the necessity for such an evaluation will be made by Dr. Lowell, our Consulting Psychiatrist. Should it be determined that we can continue to serve you in our Vocational Rehabilitation program we will insist that you comply with all procedures determined by you and our staff to be appropriate for this service. If you determine that you cannot cooperate in this fashion and under these guidelines, then it will be impossible for us to continue service and we shall have to terminate you from our Vocational Rehabilitation program.

2. You will sign a release form which Mrs. Hefferon will provide for you and which will specifically indicate that its only use is for us to secure records from Dr. Bertrans.

3. This letter will represent a directive in your case file that no release of information concerning yourself or your case will be provided by the Commission to anyone or any agency without your specific awareness and/or approval. You understand that we are mandated to provide information to certain agencies such as Social Security; however, should we be required to provide such agencies with information, you are to be notified that we have done so. I shall personally see to it that all relevant staff of the agency are aware of this directive.

4. The final conclusion of our meeting was my agreement to take specific note of the fact that you continue to view your employment goal as "travel representative." We will share this fact with Mrs. Hefferon.

Plaintiff did not respond to the letter of January 20, 1981 until September 1981 when he spoke with Mrs. Krajczar with reference to "opening" or "closing" his file. She advised him that Vocational Rehabilitation Services could no longer be provided until eligibility had been redetermined. Plaintiff was advised that unless he communicated with the Commission on or before October 1, 1981 his file would be closed. Plaintiff did not respond and on October 15, 1981, plaintiff's file was closed for "failure to cooperate."

At her deposition, Mrs. Krajczar testified that plaintiff's termination was not based upon any recommendation by defendant that plaintiff was "not feasible for rehabilitation." To the contrary, she testified that the recommendation of defendant in his memorandum of August 6, 1980 to the effect that the case should be closed, was not followed. Parenthetically, it is self evident that the Commission did not close plaintiff's file as recommended by defendant but continued to offer benefits to plaintiff on the conditions adopted from defendant's memo. Mrs. Krajczar also testified that the final decision to terminate plaintiff was based on his failure to live up to the "agreement" set forth in her letter of January 20, 1981. Despite the termination of the plaintiff for failure to cooperate, she further testified that the Commission remains willing to reconsider plaintiff's case if the appropriate conditions as previously specified in her letter of January 20, 1981 are complied with.

On this appeal plaintiff merely contends that it was error to grant defendant's motion for summary judgment because there were issues of material fact which were in dispute and that the summary judgment was based on a collateral issue. He contends that he was terminated from further benefits by the Commission because of the report of defendant; that the defendant rendered an opinion without having seen or examined plaintiff; that the file for all practical purposes was closed when defendant's recommendations were received; that the conditions were never agreed to by plaintiff and were therefore unilaterally imposed; that the closing of the file was the direct result of defendant's recommendation that plaintiff was unrehabilitative, and that plaintiff's attorney presented evidence that the closing of the file was based on psychiatric reasons.

Taking plaintiff's last point first, the "evidence" that plaintiff's counsel refers to was nothing more than a report which was objected to by defense counsel and was never entered into evidence and is not a part of the record. R. 2:5-4. Also, it is of no moment whether plaintiff did or did not "agree" to the conditions imposed in the various letters of Mrs. Krajczar. These were conditions required by the Commission as a prerequisite for plaintiff to continue benefits. As to the contention that, for all practical purposes, the file was closed at defendant's recommendation, the record indicates that the file was not closed then nor has it been closed even to this date. As Mrs. Krajczar testified, plaintiff may still obtain continued benefits by simply complying with the conditions in her letter of January 20, 1981. Plaintiff does not argue nor contend that the Commission does not have authority to impose conditions on its clients as a prerequisite to the receipt of benefits.

Concerning the remaining alleged factual disputes, we are not aware of, nor has any authority been cited to us, to prohibit an institution from retaining consultants for its own information and guidance to determine whether to admit a client for benefits, to determine a course of treatment or whether treatment is necessary, when or whether to terminate benefits and whether to readmit clients to continue benefits and to impose conditions for any of those determinations.

We are not favored in any respect as to the theory or nature of plaintiff's case nor cited any substantive law to support that theory. Plaintiff's complaint sounds in medical malpractice. The complaint alleges that defendant is a physician engaged in the practice of medicine; that he did not have or exercise the degree of care and knowledge ordinarily exercised or possessed by physicians in the Township of South Orange and was guilty of negligence in failing to make...