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Lowe v. Zarghami6/7/1999
Argued November 30, 1998
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 305 N.J. Super. 90 (1997).
The basic issue in this case, as in Eagan v. Boyarsky, ___ 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").
I.
A. The Medical Malpractice Claim
On September 7, 1994, plaintiff, Linda Lowe, who was seeking treatment for cervical cancer, was referred to Dr. Zarghami by her personal physician. She saw Dr. Zarghami on two occasions in his office. On September 26, 1994, Dr. Zarghami performed a hysterectomy and a lymphadenectomy on Lowe at Kennedy Memorial Hospital-Stratford Division ("KMH"). At least two medical residents were present in the operating room. A week after her release from the hospital, Lowe experienced severe pain in her lower right back and had difficulty urinating. An x-ray revealed an obstruction to Lowe's right distal ureter. The obstruction, a metallic clip apparently left on Lowe's ureter after her hysterectomy, was removed by Dr. Jerome Pietras in December 1994. Approximately two days after that surgery, Lowe claims that Dr. Zarghami called and informed her the urologist found a metallic clip in her body. He also allegedly indicated the clip would not cause any problems.
Lowe had further surgery in January of 1995, so that Dr. Pietras could remove a plastic stent he had used to keep Lowe's ureter open. On February 2, 1995, Lowe was admitted to the KMH emergency room, and diagnosed with a urinary tract infection. In May 1995, doctors discovered hydronephrosis of Lowe's right kidney. Lowe returned to KMH in August 1995, and was diagnosed with a stricture of the right distal ureter. She underwent another operation. After an unidentified medical resident told Lowe that her problems may have resulted from poor medical care, she contacted an attorney. The attorney investigated the medical records, and informed Lowe in December 1995 that she might have a valid malpractice claim. The merits of the underlying claim are not at issue.
B. Defendant's Employment with UMDNJ
In 1983, Dr. Faramarz Zarghami became an Assistant Professor of Clinical Obstetrics and Gynecology of the University of Medicine and Dentistry of the State of New Jersey. Dr. Zarghami's employment is not evidenced by a formal written contract, but rather by two letters verifying his appointment as an Associate Professor. The letter regarding his reappointment as Assistant Professor of Clinical Obstetrics and Gynecology sets forth the duration of the appointment, the job level, and the status of his salary.
UMDNJ is a public entity entitled to the protection of the Tort Claims Act. UMDNJ enters affiliation agreements with private hospitals so that UMDNJ faculty, like defendant, may treat patients and instruct medical students in affiliated hospitals. Such affiliation agreements are provided for by statute. See N.J.S.A. 18A:64G-2. The affiliations provide places for UMDNJ to operate its faculty practice plans. Those faculty practice service plans, designed to complement the policies and development of UMDNJ, are intended to attract patients for teaching purposes, supplement faculty salaries, establish UMDNJ as a patient referral source, and allow UMDNJ faculty to retain and refine their clinical skills.
KMH, a private hospital, entered into an affiliation agreement with UMDNJ that required Dr. Zarghami to work at KMH
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