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Eagan v. Boyarsky6/7/1999
Argued November 30, 1998
On appeal from the Superior Court, Law Division, Middlesex County.
The basic issue in this case, as in Lowe v. Zarghami, ____ N.J. ____ (1999), also decided today, is whether a clinical professor employed by the University of Medicine and Dentistry of New Jersey ("UMDNJ"), who practices medicine in a UMDNJ affiliated private hospital, is a public employee entitled to notice under the Tort Claims Act, N.J.S.A. 59:1-1 to 14.4 ("TCA"). We again conclude that UMDNJ faculty physicians practicing in affiliated private hospitals are public employees for the purposes of the Tort Claims Act.
I.
A. The Medical Malpractice Claim
Thomas Eagan was a member of HIP-Somerset, a health maintenance organization. In August, 1994, he visited his primary care physician from HIP complaining of a sore throat and fever. The doctor discovered a possible goiter. After some diagnostic testing, Eagan's physician referred him to Dr. Andrew H. Boyarsky and Dr. James Mackenzie. After examinations by both doctors in September, Eagan agreed to undergo a thyroidectomy and a mediastinoscopy. The surgeries were performed on October 25, 1994 at Robert Wood Johnson University Hospital. The doctors were assisted by two medical residents, Dr. Lisa Benton and Dr. Joseph Heether.
After the surgeries, Eagan was able to speak only in a whisper. He also complained of a sore throat. Dr. Boyarskyarski's report on the surgery documents an intraoperative injury in which Eagan's right recurrent laryngeal nerve "may have been severed."Eagan saw Dr. Boyarsky for two postoperative office visits. Both visits were conducted at the HIP treatment facility. During both visits, Eagan complained of hoarseness. Eagan was examined by two specialists and a neurologist in late November and early December 1994. All three doctors diagnosed Eagan as suffering from bilateral vocal cord paralysis. The doctors concluded that both recurrent laryngeal nerves were severed during Eagan's surgeries.
B. Defendants' Employment with UMDNJ
Drs. Boyarsky and Mackenzie are clinical professors who are employed by UMDNJ, a public entity entitled to the protection of TCA. Each received a letter of appointment from UMDNJ. Those letters of appointment do not specify the terms and conditions of employment, but do incorporate the terms and conditions of the negotiated agreement between a union bargaining unit and UMDNJ. All full-time faculty members have a recognized bargaining agent in the American Association of University Professors, which negotiates on their behalf for benefits, holidays, merit pay procedures, grievances under the collective bargaining agreement and termination for cause procedures.
Defendants performed plaintiff's surgery at Robert Wood Johnson University Hospital ("RWJUH"). RWJUM had an affiliation agreement with UMDNJ similar to the one described in Lowe, supra, ___ N.J. at ___ (slip op. at 4-5). Although a private hospital, RWJUM is a teaching hospital for UMDNJ. Pursuant to the agreement, defendants became members of RWJUH's medical staff in accordance with that hospital's rules and regulations. The bylaws of the hospital and the medical staff as well as the policies set forth by RWJUH's Board of Directors govern the hospital's operation. UMDNJ is entitled to twenty-five percent representation on the governing board of RWJUH.
UMDNJ also controls RWJUH's Professional Affairs Committee that oversees "medical staff membership and privileges, quality assurance, medical staff by-laws and regulations, and the performance of medical staff in fulfilling its obligations to RWJUH." The Chief Administrative Officer of the hosp
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