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President v. Jenkins2/6/2003
ans with admitting privileges have malpractice insurance. The motion judge denied plaintiff leave to amend her complaint to include this additional count of negligence against the hospital, finding no cognizable legal claim. We agree.
Although New Jersey allows for liberal amendment of pleadings, R. 4:9-1, "courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law." Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997) (quoting Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)). This is because "there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted." Ibid. Such is the case here.
It is, of course, the responsibility of the courts to determine the scope of tort liability. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Before recovery will be allowed under a negligence theory, a defendant must first owe a duty to plaintiff. See Maussner v. Atlantic City County Club, Inc., 299 N.J. Super. 535, 548 (App. Div. 1997). Here, plaintiff seeks to impose a duty on the hospital on the dual basis that (1) St. Barnabas voluntarily assumed a duty by adopting by-laws requiring physicians with admitting privileges to maintain adequate insurance coverage, cf. Walck v. Johns-Manville Prods. Corp., 56 N.J. 533 (1970), and (2) as a matter of fairness and policy given the foreseeability of harm from physicians practicing without malpractice insurance, cf. Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230 (2001). Neither basis, however, supports the imposition of a duty as formulated by plaintiff.
In the first place, at the time of the incident, individual physicians were not required to carry medical malpractice insurance in New Jersey. Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 87 (1997). See generally N.J.S.A. 17:30D-1 to -17 (stating provisions related to medical malpractice liability insurance). Nevertheless, courts have upheld the right of a hospital to require members of its medical staff to be covered. Courtney v. Shore Mem'l Hosp., 245 N.J. Super. 138 (App. Div. 1990). See generally Wanda Ellen Wakefield, Annotation, Propriety of Hospital's Conditioning Physician's Staff Privileges on His Carrying Professional Liability or Malpractice Insurance, 7 A.L.R. 4th 1238 (1981). As we stated in Courtney, supra:
ospitals cannot function without rules governing the conduct of the health care providers. Many of the rules are required by law. Others may be dictated by hospital review organizations or generally recognized standards for proper medical care. Whatever their source, if they are reasonable, they are entitled to judicial recognition. (citation omitted) A necessary corollary of this is a recognition of the right of the institution to enforce its rules.
Here we have a by-law requiring that members of the medical staff carry medical malpractice insurance. The reasonableness of this requirement to protect the patient as well as the institution needs no discussion.
[Id. at 142.] See also Nanavati v. Burdette Tomlin Mem'l Hosp., 107 N.J. 240, 249-50 (1987). In recognizing this right, courts rely heavily on the fact that liability insurance coverage is necessary to protect the institution from bearing the financial burden of negligent acts committed by members of its medical staff, or that the hospital was compelled to institute such a requirement at the insistence of its own liability insurance carrier. See, e.g., Pollack v. Methodist Hosp., 392 F. Supp. 393 (E.D. La. 1975); Holmes v. Hoemako Hosp., 573 P.2d 477 (Ariz. 1977); Renforth v. Fayette Mem'l Hosp. Assoc., 383 N.E.2d 368
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