In its decision dated February 1, 2022, the Superior Court of New Jersey, Appellate Division (“New Jersey Appellate Court”) stated in a New Jersey medical malpractice case on appeal: “There is no question but that the contracts obligated Middlesex, Joshi and Borja to render services in accordance with JFK’s applicable bylaws, policies, rules and requests. That those policies are intended to — and likely do — promote patient care is also not to be doubted. But that only establishes patients of JFK as incidental beneficiaries; it is not enough to make those patients, including plaintiff, intended third-party beneficiaries of the contracts with the right to sue to enforce them.”

The Underlying Facts

Plaintiff Shawn Labega, then forty-years-old, went to the Emergency Room at Defendant JFK Medical Center in January 2018, complaining of aching pain in his right ankle that had persisted for several days, although he could not recall injuring it. Plaintiff was triaged by Defendant Colleen T. Murphy, RN and assessed and evaluated by Defendants Mary V. Whitecavage, RN and Carolyn Hudak, RN. Whitecavage noted the nailbeds of two toes on plaintiff’s right foot were cyanotic, and the toes were cool to the touch. Plaintiff was examined by Defendant Jonathan Borja, PA-C, who ordered pain medication and a muscle relaxer, as well as an x-ray, which showed no fracture. Borja diagnosed plaintiff with a sprained ankle and discharged him with an air cast and recommendations for follow-up care. Defendant Hetal C. Joshi, M.D. was the attending physician in the ER that day, responsible for supervising the physician assistants, including Borja. He did not examine plaintiff but discussed his care with Borja and signed off on the chart the following day. Both Joshi and Borja had contractual agreements with Defendant North Jersey Emergency Physicians, PA d/b/a Middlesex Emergency Physicians, PA, the entity JFK contracted with to staff its emergency department.

Plaintiff returned to the ER five days later, again complaining of pain, and now cold, in his right foot. A vascular workup revealed a right popliteal occlusion from thrombus. When doctors were unable to restore blood flow, plaintiff underwent a below-knee amputation of his right leg.

Plaintiff sued the defendants alleging medical negligence and, as to Middlesex, JFK and Joshi, vicarious liability for the negligent acts of their agents or employees. Three months before the end of extended discovery, plaintiff moved to file a third amended complaint to assert seven new counts alleging causes of action for breach of contract and negligence per se. Specifically, plaintiff alleged the terms of express contracts entered into between JFK and Middlesex, and those between Middlesex and Joshi and Borja, as well as JFK emergency department policies, procedures, and protocols, required defendants to comply with specific terms and provisions governing patient care. Plaintiff further claimed that as a patient of defendants, he was an intended third-party beneficiary of those contracts, policies, protocols and procedures; that defendants breached their express obligations under their contracts and violated JFK’s emergency department policies, procedures, and protocols, and that those breaches and violations resulted in his injuries, thereby allowing him to recover damages. Plaintiff also alleged defendants were liable for negligence per se for violating JFK’s policies, protocols and procedures incorporated into the contracts because those acts or omissions “violate standards of care of professional practice that govern and guide patient care at JFK’s emergency department.”

The New Jersey Appellate Court held: “Because the terms of the contracts are clear and unambiguous and offer no support for plaintiff’s claim that he was an intended third-party beneficiary of the three agreements on which he sued, and there is nothing in the policies themselves to support his novel theory that he could sue the hospital for its alleged violation of its own policies as an intended third-party beneficiary, the court erred as a matter of law in finding the agreements ambiguous and denying defendants summary judgment dismissing counts nine through thirteen, as well as count fifteen (alleging defendants’ vicarious liability for any contractual breaches or policy violations) of the third amended complaint.”

“Because defendants’ alleged violation of hospital policy is not negligence per se as a matter of law, the judge erred in denying their motions for partial summary judgment on count fourteen of the third amended complaint. On remand, plaintiff will be limited to proving negligence in accordance with the Court’s controlling precedents of Nicholas and Morlino.”

Source Labega v. Joshi

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