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Wajner v. Newark Beth Israel Medical Center1/29/1997
The opinion of the court was delivered by
HAVEY, P.J.A.D.
This is a medical malpractice action instituted by plaintiff against defendant Drs. Ava Pannullo, Cory Vergilio and Kaushik C. Modi. Defendants were house-staff residents who attended Darryl Butler, a patient at the Beth Israel Medical Center. During decedent's hospitalization, Butler assaulted plaintiff's decedent, with whom he shared a room. In his complaint, plaintiff alleges that defendants were negligent in their supervision of Butler and in their failure to exercise reasonable care in protecting decedent from the assault.
In granting summary judgment, Judge Stein concluded that, as a matter of law, defendants were employees of the University of Medicine and Dentistry of New Jersey (UMDNJ). As such, they were "public employees" entitled to the benefits of the immunity provisions under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12.3. See Fuchilla v. Layman, 109 N.J. 319, 330-31, 537 A.2d 652, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988); see also N.J.S.A. 59:3-1 (a public employee is not liable for an injury where a public entity is immune from liability for that injury). The Judge determined that specific provisions of the TCA applied, and thus dismissed plaintiff's complaint.
We affirm substantially for the reasons expressed by Judge Stein in his comprehensive oral opinion rendered on January 23, 1996. We add only the following.
Whether a strict "control" test is applied, see New Jersey Property-Liability Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 9-13, 477 A.2d 826 (App. Div.), certif. denied, 99 N.J. 188, 491 A.2d 691(1984), or the "relative nature of the work" test, see Delbridge v. Office of the Public Defender, 238 N.J. Super. 288, 321-22, 569 A.2d 854 (Law Div. 1989), we are in accord with Judge Stein's determination that defendants were employees of UMDNJ and thus public employees as defined by N.J.S.A. 59:1-3. Defendants were subject to a written employment contract with UMDNJ. The agreement defined with specificity the terms and conditions of the residency program, regardless of the hospital to which the resident was assigned. The agreement includes details such as the starting date and duration of the residency, salary and job level, vacation benefits and the provisions by UMDNJ of liability insurance coverage on defendants' behalf. Beth Israel, to which defendants were assigned, is not a party to that agreement.
In addition, UMDNJ had entered into an Affiliation Agreement with Beth Israel under which several members of Beth Israel's staff received clinical appointments to the UMDNJ faculty. These members of UMDNJ's teaching staff assumed the responsibility for the day-to-day activities of the integrated residency program. Under the Agreement: (1) UMDNJ preserved the right to control the manner and means of defendants' performance as residents; (2) defendants' source of payment was from UMDNJ; (3) UMDNJ retained full power to discipline or discharge the residents; and (4) defendants were members of a union that collectively bargained with UMDNJ on the union members' behalf. See In re University of Med. and Dentistry, 144 N.J. 511, 516, 677 A.2d 721 (1996). In short, the Judge's application of the "control" test in concluding that defendants were UMDNJ employees is legally sound and supported by the undisputed facts.
We add parenthetically that defendants must be deemed "employees" of UMDNJ if we were to apply the "relative nature of the work" test, which considers "control" as a single, but not dispositive, factor. See New Jersey Property, supra, 195 N.J. Super. at 10; Marcus v. Eastern Agricultural Ass'n, Inc., 58 N.J. S
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