A recent case before the Supreme Court of New Jersey (“New Jersey Supreme Court”) arose out of a medical malpractice action based on the failure to detect the decedent’s cervical cancer via PAP smears. The New Jersey medical malpractice wrongful death lawsuit was filed against Quest Diagnostics, Inc. (“Quest”) and two of its employees (“the Quest defendants”). The Quest defendants then filed third-party claims for contribution and indemnification against the decedent’s gynecologist and her family practitioner. The plaintiff then filed an affirmative claim against the family practitioner but not against the gynecologist. The issue before the New Jersey Supreme Court arose out of the plaintiff’s decision not to file a direct claim against the defendant gynecologist.
The Quest defendants never served an affidavit of merit with regard to the gynecologist but later served an expert report stating that the gynecologist deviated from the standard of care. Subsequently, the Quest defendants filed an amended third-party complaint against the family practitioner, seeking contribution and indemnification. The gynecologist filed an answer, raising counterclaims for contribution and indemnification against the Quest defendants and the family practitioner. The family practitioner then filed an answer that included counterclaims against both the Quest defendants and the gynecologist.
The plaintiff then filed an amended complaint to include direct claims and an affidavit of merit against the family practitioner and his medical group but did not file suit against the gynecologist because the plaintiff’s reviewing gynecologist expert did not provide a basis for alleging a claim against the decedent’s gynecologist.
The defendant gynecologist filed a motion arguing that since the plaintiff never sued him, the plaintiff cannot recover from him. The gynecologist sought to insulate himself from participating at trial and to have any liability apportioned to him reduced from the plaintiff’s recovery. The plaintiff opposed the motion, and the trial judge denied the motion. The gynecologist appealed.
New Jersey Supreme Court Opinion
The New Jersey Supreme Court stated, “The legal question before us is whether a third-party defendant must participate in a trial to establish underlying liability under the circumstances presented here or whether he should be dismissed from the case because no direct claim was asserted against him and he was not served with an affidavit of merit.”
The New Jersey Supreme Court stated that the Comparative Negligence Act provides that in all negligence actions in which the question of liability is in dispute, the trier of fact makes two determinations: (1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party’s damages, and (2) The extent, in the form of a percentage, of each party’s negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%. N.J.S.A. 2A:15-5.2(a).
The judge then molds the judgment in accordance with the jury’s allocation of fault to all parties, whose liability is limited in accordance with each party’s percentage of fault. However, the recovering party may recover the full amount of the damages from any party determined by the trier of fact to be 60% or more responsible for the total damages. In that instance, the party that is compelled to pay more than the percentage of damages corresponding to the jury’s allocation of fault to that defendant ordinarily has a remedy under the Comparative Negligence Act (i.e., a claim for contribution from the other joint tortfeasors).
The Joint Tortfeasors Contribution Law provides that when “a joint tortfeasor pays the judgment ‘in whole or in part,’ that party shall be entitled to recover contribution from other joint tortfeasors ‘for the excess so paid over his pro rata share.’” N.J.S.A. 2A:53A-3. As to those parties “determined by the trier of fact to be less than 60% responsible for the total damages,” their liability is limited to “[o]nly that percentage of the damages directly attributable to [their] negligence or fault.” N.J.S.A. 2A:15-5.3(c).
The New Jersey Supreme Court stated that although an active third-party defendant must participate in the litigation and is subject to liability in contribution, a plaintiff cannot recover directly from a party against whom he never files an affirmative claim. Thus, a third-party defendant who is never sued directly by the plaintiff is potentially liable only to the third-party plaintiff that filed the claim for contribution against him, if and after the third-party plaintiff is compelled to pay more than his percentage share and the trier of fact accords a percentage of fault against the third-party defendant. In that instance, the third-party plaintiff is entitled to recover contribution from the third-party defendant in the amount of the third-party defendant’s share in the judgment.
The New Jersey Supreme Court stated that in the case it was deciding, it is undisputed that the Quest defendants properly filed a third-party complaint against the gynecologist, seeking contribution and indemnification. Pursuant to that claim for contribution, the gynecologist is an active party in the litigation as a joint tortfeasor, regardless of the plaintiff’s decision not to file an affirmative claim against him. Therefore, a trial is necessary for the trier of fact to determine the allocation of percentage of negligence to each defendant.
New Jersey Supreme Court Holding
The New Jersey Supreme Court held that while the plaintiff cannot recover from the decedent’s gynecologist directly, if the trier of fact determines the Quest defendants or the family practitioner to be sixty percent or more at fault, then the plaintiff can recover the full amount of damages from that party, and if the gynecologist is found to be between one and forty percent at fault, then he would be liable for his percentage of fault in contribution to the party that paid the full amount of damages to the plaintiff. If the gynecologist is determined by the trier of fact to be sixty percent or more at fault, then the plaintiff’s recovery will be limited to the remaining percentages of fault allocated to the Quest defendants and the family practitioner. If the gynecologist is determined to be 100% at fault, then the plaintiff recovers nothing.
The New Jersey Supreme Court further held: “the fact that plaintiff cannot recover from [the gynecologist] directly does not mean that his participation is not necessary to enable the trier of fact to allocate fault.” However, the New Jersey Supreme Court “decline[d] to address whether a third-party plaintiff is required to serve an affidavit of merit against a third-party defendant it brings into a lawsuit pursuant to Rule 4:8-1″ because the gynecologist did not oppose the Quest defendants’ motion “for an [o]rder declaring that [they] are not required to serve an [a]ffidavit of [m]erit with respect to their third[-]party claims . . . against [the gynecologist],” which was granted by the court, and the gynecologist did not file a motion for reconsideration or challenge the grant in his appeal.
Source Samuel Mejia v. Quest Diagnostics, Inc. (A-88-18) (082739).
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