SEXUAL ASSAULT AND MEDICAL MALPRACTICE
keywords, sexual assult, liability, lawyer, sexual assault lawyer, claim,
statute of limitations, sexual assault lawsuit, claim, sexual assault claim,
child sexual abuse, sexual assault,
Zuidema v. Pedicano, (App. Div. 2004)
Defendants James J. Pedicano, M.D. and James J. Pedicano, M.D., P.A.
appeal from an adverse jury verdict of $150,000 in an action originally
instituted by plaintiffs Wendy and John Zuidema as a malpractice action, but
which was amended to assert additional claims of sexual assault and"medical
negligence." This appeal presents the issue of whether sexual relations by a
physician with a patient can be considered medical malpractice or"medical
negligence" as opposed to an assault where the medical malpractice claims were
dismissed before trial and the jury found no sexual assault. Plaintiffs*fn1
cross-appeal the judge's calculation of prejudgment interest using the filing
date of the amended complaint.
On appeal defendants argue: (1) plaintiff's claim of sexual assault was a new
claim unrelated to her malpractice claim and was time-barred; (2) it was error
to permit plaintiffs to rely on N.J.A.C. 13:35-6.3 on their negligence claim;
(3) it was error to instruct the jury on"medical negligence" and include that
term on the verdict form as to the sexual assault aspect; and (4) there was no
medical testimony of any permanent damages. Defendants seek entry of judgment in
their favor, or alternatively, ask that if there is a remand for a new trial
that the jury's finding of no sexual assault not be disturbed.
In 1996, Zuidema lived in Pine Bush, New York and worked part time at Valley
Hospital in Ridgewood, where Dr. Pedicano had staff privileges. Zuidema, then
about thirty-eight years old,*fn2 went to see Dr. Pedicano at his Ridgewood
office for swelling and pain in her hand from picking up her baby. At that first
visit, Dr. Pedicano advised her that the swelling would go away and further
treatments were not required.
In early May 1997, Zuidema met Dr. Pedicano in a hallway at Valley Hospital and
showed him a lump that had developed on her wrist. He told her that the lump was
a ganglion cyst and suggested she call his office to schedule a same-day
surgical procedure. Zuidema scheduled surgery for Thursday, June 5, 1997.
However, by the middle of May the lump had disappeared, and when she saw Dr.
Pedicano in the hallway of Valley Hospital, she told him that she wanted to
cancel the surgery because her wrist condition had improved. Later that day,
Zuidema again met Dr. Pedicano in the hallway and commented that"there must be
some sort of karma." This time Dr. Pedicano told her that she should have the
surgery anyway to prevent the lump from returning. On Dr. Pedicano's advice,
Zuidema decided to continue with the wrist procedure. On May 30, Zuidema went to
Dr. Pedicano's office for a pre surgery physical and brought her then-eighteen
month old baby along. A brief conversation ensued and Dr. Pedicano allegedly
asked Zuidema if she meant her"karma" comment at Valley Hospital. The question
caused such a reaction on Zuidema's face that Dr. Pedicano apologized, and
jokingly said"I hope you're not going to sue me for sexual harassment." After
Zuidema assured him that she would not, he began the physical, but she said he
seemed nervous and his hands were shaking.
Zuidema testified that the conversation then turned to Dr. Pedicano's marriage,
his marital problems, and that one of his friends was leaving his wife to marry
his girlfriend. Zuidema responded that one of her previous doctors was leaving
his wife to marry his nurse. After the physical, Zuidema left the office.
On June 5, 1997, Dr. Pedicano performed the surgery on Zuidema's wrist. Zuidema
testified that while being prepped for the procedure, Dr. Pedicano leaned over
and said she"was the most beautiful patient he had ever operated on." After the
procedure, Zuidema was placed in an enclosed area for post-operative patients,
where Dr. Pedicano visited her and began talking about personal interests,
including bicycle riding. Dr. Pedicano gave Zuidema a business card with his
home phone number and private voice mailbox number, and joked"[i]n case you want
to leave me dirty messages." Nonetheless he looked down his scrubs and said"I
better stop this before I get into trouble." Zuidema believed he was looking
towards his penis as a sexual innuendo.
Zuidema called the next day to schedule a post-operative check-up and she
said Dr. Pedicano told her that Monday would be too late to remove the bandages,
which only left Saturday. Zuidema went by herself to the checkup on Saturday,
June 7, 1997.
When Zuidema arrived at Dr. Pedicano's office, she observed that the other
doctors' secretaries were there. Dr. Pedicano led Zuidema to an examination room
toward the rear of his office. Zuidema could not remember the chronological
sequence of what occurred next and could only remember flashes of the events,
but recalled when they were both in the room, Dr. Pedicano embraced her and
began kissing her. She could not remember how long the kiss lasted, but she was
finally able to tell him not to kiss her. She stated that Dr. Pedicano did stop
kissing her, but then reached under her shirt and began touching her breasts.
Zuidema said she wanted to leave the room but was in shock.
She testified that Dr. Pedicano pushed her down by the shoulders to perform
oral sex on him and forcefully inserted his penis into her mouth. However, she
soon came to her senses, and told him she could not do it. She did notice that
he had a scar on his stomach and no hair on his chest. After the incident, Dr.
Pedicano talked about his sex life and a vasectomy, and changed her wrist
bandages. She left his office shortly thereafter, sat in her car and cried.
According to Zuidema, the events of that day affected her relations with
her husband. She said she did not have these problems before the incident and
required therapy from four different doctors and medication. Her son and husband
testified that Zuidema had changed significantly after the incident and did not
want to be touched or hugged. No expert witnesses testified for the plaintiffs,
either as to any standard of medical care or as to Zuidema's damage claims.
Dr. Pedicano's office manager testified that it was normal post-operative
treatment procedure for patients to return to the office one to three days after
the procedure. However, she stated that Dr. Pedicano normally did not have
Saturday hours and he would only see a patient on Saturday on special occasions.
Before she took any appointments for a Saturday visit, she would check with the
doctor and would never let the caller speak directly with the doctor. She also
stated that Dr. Pedicano's staff advised patients not to drive if their hand was
bandaged.
Dr. Pedicano denied having any sexual relations with Zuidema, or making
comments to her regarding karma or asking whether she was going to sue him for
sexual harassment or talking about his sex life. He admitted having a
post-operative scar on his abdomen from the treatment of an ulcer and having had
a vasectomy fifteen years ago, but did not know how Zuidema knew that. He
confirmed that he had very little chest hair, and attributed Zuidema's knowledge
of that fact to pictures in his office and to the open scrubs that he wore. He
admitted giving Zuidema his phone numbers, but stated that he did so solely to
help her and her husband, who was unemployed at the time.
The doctor said he accepted Zuidema's Saturday follow-up appointment
because she told him that her children had medical appointments the following
week. However, he believed Zuidema would have someone else drive her. He
contradicted Zuidema's account of what happened in the examination room.
According to him, Zuidema attempted to kiss him at the very end of the office
visit and he rejected her advances, stating"I don't think this is a good idea."
Afterwards, he felt uncomfortable and they walked out of the office together.
Although Zuidema asked to come in on another Saturday, a second follow-up
visit was scheduled for June 18, 1997, a weekday, to avoid having the same
problem. The second follow-up visit was routine. Zuidema did not mention this
second follow up visit in her testimony.
Although the medical malpractice claim relating to Zuidema's wrist surgery
was dismissed, on the second day of trial the judge ruled that Zuidema stated
a"cause of action for medical negligence based on common knowledge"*fn3 and that
medical expert testimony was not necessary to establish a standard of care. The
judge also stated that he would instruct the jury on the New Jersey
Administrative Code sections that forbid medical professionals from having
sexual relations with their patients. N.J.A.C. 13:35-6.3. The judge was of the
view that the evidence presented only supported two factual versions of the
events: the assault either happened or it did not. The case was considered to
have only two remaining issues: whether there was medical negligence and whether
there was assault and battery.
During the jury charges, the judge instructed the jury on medical
negligence and read the cited section of the administrative code pertaining to
conduct by doctors, indicating that the regulations"set up the standard of
conduct for physicians." The judge also instructed the jury on the law of
assault and battery.
The jury found that Zuidema did not show by a preponderance of the evidence
that Dr. Pedicano assaulted and battered her.*fn4
However, the jury unanimously found that Dr. Pedicano was medically
negligent. One juror voted that Zuidema's injuries were not proximately caused
by the negligence. The jury awarded $150,000 to plaintiffs for medical
negligence.
An important threshold issue discussed at oral argument is whether Zuidema
was entitled to assert a claim for"medical negligence" against Dr. Pedicano
based upon the sexual assault allegation. The issue has important public policy
implications.*fn5
It is, of course, the responsibility of the courts to determine the scope
of tort liability." President v. Jenkins, 357 N.J. Super. 288, 313 (App. Div.
2003), aff'd in part, rev'd in part on different grounds, 180 N.J. 550 (2004).
There is no doubt that plaintiffs could assert a tort of sexual assault or
assault and battery independent of any malpractice claim. The essence of
plaintiffs' medical negligence claim is that Dr. Pedicano's alleged assault was
not within the standard of care that physicians owe their patients. The issue is
squarely framed by the procedural posture of the case in that all malpractice
claims based on the hand surgery were dismissed for lack of expert support.
Therefore, the remaining issues for trial revolved around the sexual incident
alleged.
We are aware of no case in this State that allowed or disallowed a medical
negligence claim, presumably based on an unintentional act, premised on sexual
assault, an intentional act. Rather, the cases involving sexual assault
generally are in the context of denial of coverage by malpractice carriers due
to an intentional act of the accused physician. See, e.g., Princeton Ins. Co. v. Chunmuang, 151 N.J. 80 (1997) (sexual assault claim was covered under
contractual language of physician's malpractice policy, but not covered due to
an exclusion for criminal activities); Hirst v. St. Paul Fire & Marine Ins. Co.,
683 P. 2d 440 (Idaho Ct. App. 1984) (physician who operated outside of the
mental health arena was not covered under the professional services language of
liability policies for sexual assault); Public Serv. Mut. Ins. Co. v. Goldfarb,
425 N.E. 2d 810 (N.Y. 1981) (insurer had duty to defend dentist against claims
of sexual abuse where the policy language clearly indicated intent to do so);
Physicians Ins. Co. v. Pistone, 726 A. 2d 339 (Pa. 1999) (insured physician's
acts of sexual abuse were outside coverage of professional liability insurance
policy); Washington Ins. Guar. Ass'n v. Hicks, 744 P. 2d 625 (Wash. Ct. App.
1987) (sexual acts of a chiropractor during a treatment session were not covered
medical incidents under his liability policy). Those cases generally involved
disputes between physicians and their insurance carriers over insurance coverage
under contract law.
[37] However, no authority in this State or from other jurisdictions allows a
claim of sexual assault to support a claim for medical malpractice in a civil
action as a matter of tort law. Therefore, the only guidelines available to date
are the general principles of a medical malpractice action.
[38] A malpractice action is based on the improper performance of a professional
service that deviated from the acceptable standard of care. See Sanzari v.
Rosenfeld, 34 N.J. 128, 134-135 (1961); F.G. v. MacDonell, 291 N.J. Super. 262,
271-272 (App. Div. 1996), aff'd in part, rev'd in part on different grounds, 150
N.J. 550 (1997); 61 Am. Jur. 2d Physicians, Surgeons, Etc. § 287 (2002). In a
typical medical malpractice action, a plaintiff must establish by expert
testimony the applicable standard of care owed by a physician to a patient, a
deviation from that standard of care, and that the deviation proximately caused
the injuries. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004).
[39] Under the facts of this case, giving plaintiffs the benefit of the
inferences, the alleged sexual contact was neither related to nor necessary for
any actual medical service Dr. Pedicano may have rendered. He performed the
surgery on Zuidema before the incident and he gave post-operative medical care
after the incident. Regardless of whether the sexual act or contact occurred, it
was independent of any professional service Dr. Pedicano rendered and
unnecessary to it. Zuidema asserted a medical malpractice claim because Dr.
Pedicano happened to be a physician. A doctor's duty to refrain from sexual
misconduct, a separate intentional act, does not give rise to a medical
malpractice action, although other potential causes of action might exist. To
conclude otherwise and allow a malpractice cause of action in such circumstances
would essentially incorporate intentional sexual conduct as a part of a
physician's professional service. And, as an intentional act, it generally would
not be covered by professional malpractice insurance. See Princeton Ins. Co. v.
Chunmuang, supra (151 N.J. at 94-96).
[40] Furthermore, there is an incongruity in allowing a plaintiff to prove a
negligence action based on a defendant's intentional conduct. Plaintiffs asked
the jury to conclude that a doctor has a duty not to engage in sexual relations
with a patient, and that Dr. Pedicano's willful decision to engage in such
conduct constituted a negligent deviation from that duty. Under that rationale,
a physician would also have a duty not to steal a patient's property while under
the doctor's care and not to falsely imprison his patients in an examination
room. While these examples may be common knowledge of improper conduct by
anyone, including a physician, or indeed any licensed professional, they are no
different than the duties that every individual owes to others and are not the
performance of a professional service. If Dr. Pedicano was not a physician, he
would still owe the same duty not to sexually assault Zuidema.
[41] There is no reported case that we are aware of that has allowed any form of
negligence to be proven by a sexual assault, an intentional act. Therefore,
Zuidema's medical negligence claim cannot stand independent of any medical
malpractice claim and should have been likewise dismissed.*fn6 Plaintiffs would
then be left with a potential claim of negligent sexual assault or contact.
Their intentional sexual assault claim was rejected by the jury. No negligent
act was established here, let alone what was referred to as medical negligence.
[42] Our decision does not conflict with that in Princeton Ins. Co. v. Chunmuang,
which held that an allegation of sexual assault by a patient against her
physician constituted a"medical incident." 151 N.J. at 98. That case interpreted
the scope of coverage for a professional liability policy based on contract law
principles. Id. at 87. It also noted that at that time, physicians were not
statutorily required to have malpractice insurance. Ibid. N.J.S.A. 45:9-19.17
now makes malpractice insurance for physicians compulsory.
[43] For the sake of completeness, we note that the trial judge ruled that
expert testimony was not required to establish Dr. Pedicano's standard of care
for what he denominated"medical negligence" because the common knowledge
doctrine could be applied. The judge left the jury to rely on their experience,
without the aid of an expert, to determine the standard of care that Dr.
Pedicano owed Zuidema as to medical negligence and sexual misconduct. However,
this ruling undercuts the concept that professional services were involved and
that as such the claim had to be that Dr. Pedicano deviated from professional
standards.
[44] As stated, in the usual malpractice case, the standard of care is generally
established by expert testimony, except where the common knowledge doctrine
applies. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). Common knowledge comes
into play where"the issue of negligence is not related to technical matter[s]
peculiarly within the knowledge of the licensed practitioner" and the jury is
allowed"to supply the applicable standard of care and thus to obviate the
necessity for expert testimony relative thereto." Ibid. (quoting Sanzari, supra
(34 N.J. at 141-142)). The common knowledge doctrine applies where the
negligence of the defendant is apparent to"anyone of average intelligence and
ordinary experience." Ibid.
[45] In malpractice cases involving common knowledge,"[t]he trial of such a case
is essentially no different from'an ordinary negligence case.'" Rosenberg, supra
(99 N.J. at 325) (citing Sanzari, supra (34 N.J. at 141)). Here, it may well be
within the common knowledge of the average juror that physicians should not
engage in sexual relations with their patients. But the sexual assault was an
intentional act and the jury found no sexual assault. In that sense, if a sexual
assault could be a basis for medical malpractice on a common knowledge theory,
the terms"medical negligence" and"medical malpractice" would be interchangeable.
Here, the claim was of an intentional act, and the jury verdict finding"medical
negligence" was fatally inconsistent with the acts of the doctor at issue and
requires reversal.
[46] However, the jury could not consider the malpractice claim because that was
dismissed. Additionally, it is erroneous to use the term"medical negligence"
because it could only refer to a form of malpractice, couched in terms of
negligence, or an unintended tort. Here, the allegations involved intentional
sexual activity, not accidental or negligent conduct.
[47] If the jury could determine the standard of care without the aid of an
expert, then the clear implication is that the standard of care did not involve
any matter within the specialized knowledge of Dr. Pedicano. The alleged sexual
assault clearly did not constitute a professional service.
[48] Simply stated, sexual relations between a physician and patient are
certainly not condoned, but Zuidema may not utilize a medical malpractice type
theory to support a claim based on an intentional act independent of a
physician's practice, or for a claim of sexual assault. See Chunmuang, supra
(151 N.J. at 100-101); Ambassador Ins. Co. v. Montes, 76 N.J. 477, 484 (1978).
[49] The jury found that there was no sexual assault, thus rejecting this claim,
and the jury incorrectly considered a medical negligence issue because it was
improperly based on an intentional act. Thus, we reverse the jury's verdict.
[50] II.
[51] We briefly address Dr. Pedicano's other arguments. He asserts that Zuidema
should not have been allowed to amend her complaint to include the sexual
assault claim because it was unrelated to the malpractice claim and the statute
of limitations had run on the June 1997 claim.
[52] Personal injury claims based on sexual assault, even as an intentional act,
are subject to the two-year statute of limitations. N.J.S.A. 2A:14-2. Even
though the statute of limitations ran, a claim for sexual assault may be brought
in amended pleadings if it relates back to the original pleading filed prior to
the running of the statute. R. 4:9-3. The claim in the amended pleading,
however, must arise"out of the conduct, transaction or occurrence set forth or
attempted to be set forth in the original pleading...." R. 4:9-3.
[53] Furthermore, the trial judge"may, upon terms, permit the statement of a new
or different claim or defense in the pleading." R. 4:9-3.
[54] Although the limitations period on the sexual assault claim arguably
expired in June 1999, that claim related back to the original complaint because
the event occurred during the timeframe of the treatment involving the medical
procedures referenced in the malpractice claim, i.e., the surgery Dr. Pedicano
performed on Zuidema's hand. The amended claim related to an alleged sexual
incident. The motion judge was not required to sort out the niceties of the
malpractice claim and consider whether there would be expert proofs or whether
an intentional act was involved. Harr v. Allstate Ins. Co., 54 N.J. 287, 299-300
(1969). So long as the claims alleged implicated the same transaction or
occurrence, regardless of the merits, a liberal application of the rule allowed
Zuidema to amend her pleadings to include her sexual assault claim.
[55] III.
[56] Dr. Pedicano argues that the judge erred in charging the jury on sections
of the New Jersey Administrative Code related to sexual misconduct of
physicians, N.J.A.C. 13:35-6.3(c), (d), and (i), adopted pursuant to the
authority of N.J.S.A. 45:9-2.
[57] The sections of the administrative code the judge read to the jury state in
pertinent part:
[58] (c) A licensee shall not engage in sexual contact with a patient with whom
he or she has a patient-physician relationship. The patient-physician
relationship is considered ongoing for purposes of this section in all contexts
other than the provision of psychiatric or psychotherapeutic services, unless:
actively terminated, by way of written notice to the patient and documentation
in the patient record; or the last professional service was rendered more than
one year ago....
[59] (d) A licensee shall not seek or solicit sexual contact with a patient with
whom he or she has a patient-physician relationship and shall not seek or
solicit sexual contact with any person in exchange for professional services....
[60] (i) A licensee shall not engage in any other activity (such as, but not
limited to, voyeurism or exposure of the genitalia of the licensee) which would
lead a reasonable person to believe that the activity serves the licensee's
personal prurient interests or is for the sexual arousal, the sexual
gratification or the sexual abuse of the licensee or patient.
[61] [N.J.A.C. 13:35-6.3.]*fn7
[62] The appendix following N.J.A.C. 13:35-6.3, states:
[63] It is beyond dispute that sexual contact with patients is in conflict with
the very essence of the practice of medicine.... It is well established that
sexual activity between physicians and patients is almost always harmful to the
patient and is prohibited.
[64] Violations of the administrative code provisions could result in suspension
or revocation of a license to practice medicine. See N.J.S.A. 45:9-16,*fn8 which
was in effect at the time of the events at issue in this appeal. Current medical
ethical standards and administrative regulations forbid sexual contact between
physicians and patients. N.J.A.C. 13:35-6.3. As such, although physicians
generally owe a duty not to engage in sexual relations with their patients, such
a duty is not part of any professional medical service. A claim of a sexual
offense committed by a physician is relevant in administrative proceedings for
admission to medical practice, license suspension, or license revocation. See
N.J.S.A. 45:1-21; N.J.A.C. 13:35-6.3; In re Polk, 90 N.J. 550 (1982).
[65] Our courts have recognized both the availability and unavailability of
administrative regulations as evidence of a standard of care. See, e.g., Fisch
v. Bellshot, 135 N.J. 374, 385 (1994) (dram shop regulations do not create a
negligence standard for alcoholic beverage servers and licensees); Harris v.
State, 61 N.J. 585, 593 (1972) (prison regulations related to the conduct of
prison employees are not evidence of the standard of care owed to prisoners);
Constantino v. Ventriglia, 324 N.J. Super. 437, 442 (App. Div. 1999), certif.
denied, 163 N.J. 10 (2000) (OSHA regulations are evidence of the standard of
care for the construction industry); Cromartie v. Carteret Sav. & Loan, 277 N.J.
Super. 88, 101 (App. Div. 1994) (HUD regulations are not evidence of a standard
of care). There is no published opinion that has addressed the applicability of
the quoted regulation in the context of a medical malpractice claim.
[66] In our view, reliance on the administrative code to establish a deviation
from medical care is inappropriate. It establishes an ethical rule of conduct,
by defining a bad practice and prohibiting such conduct. See Baxt v. Liloia, 155
N.J. 190 (1998).
[67] Although sexual assault by a physician against a patient may constitute a
crime or another type of tort, it does not constitute professional malpractice
because it simply does not constitute a legitimate professional service and is
not made a negligent act by the regulations.
[68] IV.
[69] Dr. Pedicano contends that the trial judge erred in using the term"medical
negligence" in his instructions to the jury.
[70] The judge allowed the case to be presented to the jury as a negligence-type
action against a physician, despite the intentional nature of the conduct,
leaving the standard of care up to the jury without any expert testimony. The
judge erred in doing so and instructing the jury that the Board's regulation
established a standard of care or conduct. The judge further erred in permitting
the jury to find negligence based solely on a violation of a regulation of the
Board of Medical Examiners.
[71] This allowed the regulation to become the sole basis for civil liability.
That was improper. N.J.A.C. was not intended to establish a standard of civil
liability. Rather, it established an ethical standard to guide the Board of
Medical Examiners in its licensing and disciplinary determinations. N.J.A.C.
13:35-6.3 (appendix); 28 N.J.R. 65(a).
[72] In an analogous context, Baxt, supra (155 N.J. at 203), held that the rules
of professional conduct (RPC) for attorneys do not, in and of themselves,
provide the basis for civil liability. A violation of an RPC can be considered
as some evidence of negligence when taken into consideration with other evidence
of negligence. Aside from the fact that in this case there was no negligent act
alleged, the judge in his instruction told the jury that it would find
negligence by the doctor based solely on N.J.A.C. 13:35-6.3, which was improper.
Dr. Pedicano also asserts that expert testimony was required on the issue
of the permanency of damages and seeks judgment in his favor without a remand.
In light of our decision, the issue is moot.
Our decision also makes it unnecessary to address defendant's contention
that in the event of a remand the issue of the sexual assault should not be
revisited. In any event, we note that the issue of sexual assault was decided by
the jury and was a distinct issue from any negligence claim. See Ahn v. Kim, 145
N.J. 423, 434-435 (1996).
Zuidema's cross-appeal as to whether prejudgment interest should have been
calculated from the date of the filing of the original complaint on May 19,
1999, rather than the May 3, 2002 date of the amended complaint is also moot.
Reversed. Remanded for entry of judgment of no cause for action.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[79] *fn1 References to Zuidema or plaintiff in the singular refer to Wendy
Zuidema unless otherwise indicated. John Zuidema, Wendy's husband, asserted a
per quod claim.
fn2 At the time of the trial in 2003, Zuidema was forty-five years old and
had been married for twenty-five years. The Zuidemas have five children, ranging
from age seven to twenty four.
fn3 Medical malpractice is essentially a negligence or incompetence claim
against a physician. See Black's Law Dictionary, 7th Ed. 1999, p. 971.
fn4 Whether the verdict could be considered a finding by the jury that Dr. Pedicano and Zuidema had a consensual sexual relationship was not resolved. The
trial judge did comment in passing that the incident may have been consensual.
fn5 The contours of a medical malpractice suit become more significant for
members of the bar, health professionals, and malpractice insurers, because
physicians in this State are now statutorily required to carry malpractice
insurance. N.J.S.A. 45:9-19.17.
fn6 To allow a malpractice claim based on a sexual relationship would also
create a number of troubling issues where the patient consented, i.e., whether
the patient contributed to the cause of her alleged injuries, whether the
physician's insurance company was required to defend the action even though it
was based on an intentional act, see Princeton Ins. Co. v. Chunmuang, 151 N.J.
80 (1997), and whether an affidavit of merit would be required, see N.J.S.A.
2A:53A-27.
fn7 In addition, N.J.A.C. 13:35-6.3 states:
(j) Violation of any of the prohibitions or directives set forth at (c) through
(i) above shall be deemed to constitute gross or repeated malpractice pursuant
to N.J.S.A. 45:1-21(c) or (d) or professional misconduct pursuant to N.J.S.A.
45:1-21(e).
fn8 Under the former N.J.S.A. 45:9-16(h), repealed by L. 1999, c. 403,
effective January 18, 2000, the Board of Medical Examiners could revoke or
suspend a doctor's license for"gross malpractice or gross neglect in the
practice of medicine which has endangered the health or life of any person."
Under the now applicable statutory provisions of N.J.S.A. 45:1-21(c), (d), and
(h), as amended, revocation is permitted if the professional:
c. Has engaged in gross negligence, gross malpractice or gross incompetence
which damaged or endangered the life, health, welfare, safety or property of any
person;
d. Has engaged in repeated acts of negligence, malpractice or incompetence;
* * *
h. Has violated or failed to comply with the provisions of any act or regulation
administered by the board[.]
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QUALIFICATIONS AND EXPERIENCE OF THIS LAW OFFICE
Howard A. Gutman has been handling personal injury claims and other types of litigation for over 15 years. Prior to establishing his practice, Mr. Gutman was employed by one of the leading law firms in New Jersey and a prominent international law firm located in the Wall Street area. He has appeared on Good Day New Jersey been interviewed by NBC Nightly News and Newsday, and his cases have been profiled in the Star Ledger, Bureau of National Affairs Magazine, and New York Times.
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Keywords, negligent security, New Jersey
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abuse, sexual assault,