In 2020 we will likely get a published Appellate Division decision that resolves whether a medical provider can bring a medical claim petition in New Jersey where virtually all contacts are in New York State except for where the surgery occurs and sometimes where the claimant lives. One hint of how the Appellate Division may lean comes from a recent medical malpractice case entitled Pullen v. Dr. Aubrey Galloway, A-1373-18T2 (December 9, 2019).
The case involved jurisdictional issues between New Jersey and
New York in connection with a law suit filed by the widower of Jeanne Pullen,
who underwent surgery in New York City to replace her aortic valve but died
shortly thereafter. Mr. Pullen, the
widower, filed a medical malpractice case against Dr. Aubrey Galloway who
performed the surgery at NYU Langone Medical Center in New York City. Dr. Galloway practiced only in New York and
saw patients only in New York.
The decedent lived in New Jersey and her widower filed the
medical malpractice case in New Jersey.
The decedent was referred to Dr. Galloway by her New Jersey licensed
physician, Dr. Edwin Blumberg. Dr. Galloway argued that there was no
jurisdiction over him in New Jersey. He had been licensed to practice in New
Jersey between 2004 and 2009 but he had never actually practiced in New Jersey.
Pullen countered that the New Jersey referring doctor, Dr.
Blumberg, had a personal friendship with Dr. Galloway. He also argued that Dr. Galloway solicited
business through commercials and local television stations.
The trial court dismissed the lawsuit for lack of
jurisdiction in New Jersey over Dr. Galloway.
The Appellate Division said, “General
jurisdiction exists when the plaintiff’s claims arise out of the defendant’s
continuous and systematic ‘contacts with the forum state.’” The Court added, “Applying these
well-established standards, Dr. Galloway is not subject to personal
jurisdiction in New Jersey. Dr. Galloway does not have continuous and
substantial contacts that would subject him to general jurisdiction in New
Jersey. Dr. Galloway lives and practices
medicine in New York. He certified that
he had a New Jersey medical license only between 2004-2009 and never actually
practiced medicine in New Jersey.”
The Court also rejected the allegation that Dr. Galloway
should be subject to jurisdiction in New Jersey because he advertised on local
television stations. “Plaintiff did not
identify any actual advertising on local television stations. Instead, plaintiff merely asserted that Dr.
Galloway had engaged in such advertisement.
That contention is not supported by any specific facts such as the
nature of the advertising, when and where the advertising was actually aired,
and whether the advertisement was directed at New Jersey residents.”
The Court added, “We have previously held that a doctor’s out-of-state treatment of a New Jersey resident does not, in and of itself, establish personal jurisdiction. Bovino v. Brumbaugh, 221 N.J. super. 432,437 (App. Div. 1987). In Bovino, we explained that when a patient seeks personal services from an out-of-state physicians those services are not directed towards a particular place; rather, they are directed at the needs of the patient. In that regard, we noted that it is fundamentally unfair to subject an out-of-state physician to jurisdiction in New Jersey when treatment is provided exclusively in another state.”
The reason this case is important is that in there are many
hundreds of MCP cases pending in New Jersey involving New York accidents to
largely New York residents who work in New York. The only contact with New Jersey occurs when the
surgeon decides to schedule the main medical procedure in the State of New
Jersey where there is no fee schedule — unlike New York. All the treatment up to surgery has occurred
in New York State, the employment contacts are in New York, yet the surgical
procedure is shifted to New Jersey solely to avoid the New York fee schedule.
When the carrier and employer insist on paying the surgeon under the New York
fee schedule, the medical provider hires a New Jersey law firm who files a
Medical Claim Petition in the New Jersey Division of Workers’ Compensation to
get paid the difference between the New York fee schedule and the bill for the
procedure.
It would seem under the rationale in Pullen to be completely insufficient for the Division of Workers’ Compensation to accept jurisdiction over the fee dispute in a situation like this where all the contacts were in New York. There are no continuous or systematic contacts with New Jersey, to quote the decision in Pullen.
Thanks to David Lustbader, a prominent New Jersey practitioner, for sending this case to our attention.
The post Jurisdictional Issue in Med Mal Decision In New Jersey May Presage Likely Dismissal of MCP Cases Arising from New York Injuries and New York Employment appeared first on NJ Workers' Comp Blog.
