SUKETU H. NANAVATI, M.D. VS. CAPE REGIONAL MEDICAL CENTER SUKETU H. NANAVATI, M.D. VS. CAPE REGIONAL HEALTH SYSTEMS, D/B/A CAPE REGIONAL MEDICAL CENTER (C-000078-16 AND L-4126-17, CAPE MAY COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4111-17T3
A-4126-17T3
SUKETU H. NANAVATI, M.D.,
Plaintiff-Appellant,
v.
CAPE REGIONAL MEDICAL
CENTER,
Defendant-Respondent.
____________________________
SUKETU H. NANAVATI, M.D.,
Plaintiff-Appellant,
v.
CAPE REGIONAL HEALTH
SYSTEMS, d/b/a CAPE REGIONAL
MEDICAL CENTER, CAPE REGIONAL
HEALTH SYSTEM BOARD OF
TRUSTEES, JOANNE CARROCINO,
WILLIAM BRADWAY, D.O.,
MICHAEL BORISS, D.O., and
ARTHUR CHILDS, D.O.,
Defendants-Respondents.
__________________________________
Argued December 12, 2019 – Decided May 19, 2020
Before Judges Alvarez, Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Cape May County, Docket No.
C-000078-16 in A-4111-17.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0125-17 in
A-4126-17.
Anthony Morgano, Jr. argued the cause for appellant
(Levine Staller Sklar Chan & Brown, PA, attorneys;
Anthony Morgano, Jr., on the briefs).
Anthony P. Monzo argued the cause for respondents
(Monzo Catanese Hillegass, PC, attorneys; Anthony P.
Monzo, on the briefs).
PER CURIAM
Plaintiff Suketu H. Nanavati, M.D., a board certified cardiologist, appeals
from two orders granting summary judgment dismissing his complaints in
related cases. In 2016, Nanavati filed a Chancery action appealing defendant
Cape Regional Medical Center's (Hospital) failure to reappoint him as a staff
physician, and the termination of his clinical privileges at the facility. In 2017,
Nanavati filed an action in the Law Division seeking damages, among other
causes of action, pursuant to the New Jersey Law Against Discrimination
A-4111-17T3
2
(NJLAD), N.J.S.A. 10:5-1 to -49, common-law claims of wrongful discharge
under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), and the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14,
allegedly caused by the Board of Trustees of Cape Regional Health System
(Board), and certain named individuals, stemming from his termination of
employment by the Hospital. Nanavati and the Hospital's predecessor entity
have previously engaged in litigation regarding his status as a Hospital
physician. See Nanavati v. Burdette Tomlin Mem'l Hosp., 107 N.J. 240 (1987).
We now reverse both orders. As to the Chancery matter, we conclude the
standards of review employed by the Fair Hearing Committee (Committee) in
two proceedings substantively strayed from the standard expressed in Nanavati.
Thus, we reverse the grant of summary judgment to defendants in the Chancery
proceeding, as the decision assumed the standard applied by the Committee was
correct.
We also reverse the grant of summary judgment dismissing Nanavati's
complaint in the Law Division matter. That court, ignoring an unopposed
request for adjournment made by defendants, who had filed a motion to dismiss
for failure to state a claim, converted defendants' motion to an "unopposed"
summary judgment motion before discovery was taken. We also reverse the
A-4111-17T3
3
Law Division's denial of Nanavati's request for reconsideration, in which the
court, while acknowledging the request for adjournment and Nanavati's
assumption it would be granted, denied reconsideration on the merits without
explaining the reason the adjournment request was overlooked.
By way of abbreviated background, Nanavati has openly expressed his
disapproval of Hospital policies and some staff for years; he and the Hospital
have a history of being at odds. The ongoing conflict led to the Hospital's
Credentials Committee's initial recommendation on March 25, 2015, to the
Medical Staff Executive Committee (MSEC) that Nanavati's request for
reappointment and renewal of his medical privileges be denied. This
recommendation, adopted by the MSEC, led to the hearings before the
Committee. The Committee recommended that Nanavati complete a behavioral
program, which he did but months after the deadline.
The later June 6, 2016 Committee report stated:
[Nanavati] has failed to prove that the recommendation
was arbitrary, unreasonable or capricious because of a
lack of evidence that his behavior toward others could
adversely affect the ability of the hospital to deliver
quality health care to patients.
There is substantial credible evidence in the record
before the [MSEC] from which it could have concluded
that [Nanavati] had engaged in a course of conduct,
from 2009 to 2014, that was so disruptive as to interfere
A-4111-17T3
4
with the orderly operation of the hospital in a way that
could affect the ability of the hospital to deliver quality
health care to patients.
[(emphasis added).]
The Hospital bylaws express a different standard than the one employed by the
Committee:
A basis for corrective action exists whenever a
Practitioner engages in any action or behavior which is
disruptive or is reasonably likely to be disruptive of
Medical Center operations or to be detrimental to
patient safety or delivery of good patient care, as
outlined in the Medical Staff policy "Code of Conduct."
[Article IX, § 5 (Disruptive Behavior) of the Medical
Staff (emphasis added).]
The MSEC adopted the Committee's June 6, 2016 report. After Nanavati
completed the internal appeal process, the Board affirmed the denial of his
request for reappointment and renewal of clinical privileges. Nanavati filed the
Chancery complaint following this decision.
By August 10, 2017, when a telephonic case management conference was
conducted in the Chancery matter, Nanavati had also initiated the Law Division
action. The Chancery judge requested the parties file cross-motions for
summary judgment on the legal issues. Nanavati indicated he would seek only
A-4111-17T3
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partial summary judgment because the Committee had applied an incorrect
standard in its decision.
In the interim, an incident occurred which led to Nanavati's summary
suspension. The summary suspension hearing was guided by the same hearing
officer who guided the Committee through the parallel reappointment process.
The Committee issued a report on September 18, 2017, stating that Nanavati had
failed to carry his burden of proof of demonstrating by clear and convincing
evidence that the Board acted arbitrarily and without a credible basis in
summarily suspending him on June 16, 2015, and upheld the suspension.
The Law Division action, filed March 20, 2017, was assigned a 450-day
discovery track, scheduled to end August 17, 2018. On May 24, 2017,
defendants moved to dismiss the Law Division complaint for failure to state a
claim or, in the alternative, for summary judgment, pursuant to Rule 4:6-2(e).
The parties agreed the motion would be adjourned to allow the summary
suspension hearing to move forward. On June 14, 2017, Nanavati's attorney
requested an adjournment until August 14, 2017, to allow sufficient time for a
hearing in the companion Chancery matter to occur. That request was granted
and communicated to defense counsel on June 20, 2017. On June 22, 2017,
A-4111-17T3
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defendants, the moving parties, requested a second postponement—which was
granted—that the motion be carried until September 2017.
During an August 10, 2017 telephonic management conference in the
Chancery matter, the parties again agreed to carry defendants' Law Division
motion until the cross-motions for summary judgment in the Chancery matter
were decided. Nanavati's attorney took no action because he assumed the
request would be handled internally and conveyed to the Law Division by the
Chancery court.
On August 31, 2017, defendants' counsel contacted Nanavati's attorney to
confirm his consent to the adjournment. He confirmed consent because the Law
Division calendar still listed the motion as returnable on September 1.
Defendants' attorney, upon receiving confirmation of the consent, again
requested the court adjourn the motion. He wrote:
Please accept this letter as our request for an
adjournment of the Motion for Summary Judgment
pending before this Court. We are requesting that a
hearing in this matter be adjourned until the first motion
date in December. Adjourning the return date on this
Motion will allow for a determination to be made in the
Chancery Division case, Docket No. CPM-C-78-16.
Cross Summary Judgment Motions are scheduled to be
heard on October 3, 2017, and a resolution of the
Chancery matter will likely resolve portions of the Law
Division case. We have spoken to opposing counsel,
and he has consented to this adjournment.
A-4111-17T3
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The Law Division judge, without notice to either party, decided the
motion. He found there was "no general issue of material fact[,]" and that "[t]he
arguments in Plaintiff's Complaint contradict themselves or the relevant statute
. . . ." The judge noted in the decision that the application was "unopposed." He
converted the motion to dismiss for failure to state a claim to a motion for
summary judgment.
Nanavati's counsel was served with the summary judgment order
September 25, 2017, and on October 11, moved for reconsideration. In their
response, defendants did not object to the rescheduling of the motion to dismiss
to allow Nanavati to file "a reply brief," and have the "opportunity to present
oral argument to the court." Defendants reiterated that the request for
adjournment stemmed from the parties' consensus that resolution of the
Chancery action "would have simplified the claims for damages in the [Law
Division action] . . . ." They also asserted that they were entitled to summary
judgment as a matter of law.
In his decision on the motion for reconsideration, the judge did not
mention his notation that the prior application was "unopposed," nor did he
explain the reason he decided the initial application in the face of the movant's
unopposed request for adjournment, stemming from the earlier parallel
A-4111-17T3
8
proceeding in Chancery, and before discovery had begun in the matter. The
court instead addressed the merits—finding that Nanavati was an independent
contractor not protected under NJLAD, common law, or CEPA, and further
finding that the Healthcare Quality Improvement Act of 1986 (HCQIA), 42
U.S.C. §§ 11111(a)(2) and 11151(9), immunized defendants from any action
taken adverse to Nanavati.
Nanavati raises the following points on the appeal of the Chancery matter:
POINT I
The Lower Court Erred In Holding That The Hospital's
Bylaws Afforded Dr. Nanavati A Fundamentally Fair
Process.
A. The Lower Court Erred In Declaring That
Dr. Nanavati Received A Fair Process As The
Hospital's Bylaws Allow The MSEC To Reach
An Ex-Parte Recommendation Before Dr.
Nanavati Is Entitled To Any Due Process.
B. The Lower Court Erred In Declaring That
Dr. Nanavati Received A Fair Process As Once
The Ex-Parte Recommendation Is Made, The
Hospital's Bylaws Impermissibly Shift The
Burden Of Proof To The Physician To Prove By
Clear And Convincing Evidence That
Recommendation Was Arbitrary, Capricious, Or
Unreasonable.
POINT II
The Lower Court Erred In Failing To Address Dr.
Nanavati's Argument That The Hearing Officer
Misapplied Controlling Supreme Court Precedent.
A-4111-17T3
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POINT III
The Lower Court Erred As A Fair Process Required Dr.
Nanavati To Have Subpoena Power To Compel
Recalcitrant Witnesses To Appear For A Hearing.
POINT IV
The Lower Court Erred In Failing To Address Dr.
Nanavati's Argument That He Was Precluded By The
Hearing Officer From Introducing Highly Relevant
Evidence.
A. The Hearing Officer Improperly Precluded
Dr. Nanavati From Introducing Evidence That He
Had Attended An Approved Behavior
Modification Course, And Psychiatric
Evaluation.
B. The Hearing Officer Erred In Allowing
The Hospital To Introduce Evidence Of Certain
Events That Occurred Before 2010 While
Simultaneously Precluding Dr. Nanavati From
Testifying As To Events That Occurred During
The Same Time Period.
POINT V
The Lower Court Erred In Failing To Address Dr.
Nanavati's Arguments That The Hospital Violated Its
Own Bylaws During The Course Of Its Investigations.
A. The Lower Court Erred In Failing To
Address Dr. Nanavati's Argument that the MSEC
failed to interview all relevant witnesses and
failed to include relevant exculpatory eviden[ce].
B. The Lower Court Erred In Failing To
Address Dr. Nanavati's Argument That The
Appointment Of A Non-Physician To The
A-4111-17T3
10
Investigative Committees Violated The
Hospital's Bylaws.
POINT VI
The Lower Court Erred As A Matter Of Law In
Granting Summary Judgment In Its Entirety As The
Record Was Deeply Controverted And Necessitated A
Plenary Hearing.
In the Law Division matter, Nanavati raises the following issues:
POINT I
The Lower Court's September 13, 2017 Order Erred In
Granting Defendants' Motion To Dismiss As
Unopposed.
A. The Lower Court Abused Its Discretion
When It Decided Defendants' Motion As
Unopposed In Light Of The Fact That Defendants
Had Requested An Adjournment Of Its Own
Motion, Plaintiff Consented Thereto, And The
Court Provided No Notice Of Its Intention To
Decide The Motion As Unopposed.
B. Plaintiff's Complaint, Which Must Be
Read Liberally, Sufficiently Stated Causes Of
Action To Withstand A Motion To Dismiss.
1. Defendants' Argument That Plaintiff
Failed To Plead Sufficient Facts To
Support A New Jersey Law Against
Discrimination Claim.
2. Defendants' Position That Dr.
Nanavati Failed To State A Claim Under
CEPA was without merit.
A-4111-17T3
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3. Defendants' Immunity Argument
Was Premature.
4. Plaintiff's Common Law Claims
Were Not Waived By Asserting A CEPA
Claim.
C. The Lower Court Improperly Converted
Defendants' Motion To Dismiss Into A Motion
For Summary Judgment Which Was Procedurally
Premature As No Discovery Had Taken Place.
POINT II
The Lower Court's April 18, 2018 Order Erred In
Denying Plaintiff's Motion For Reconsideration.
A. The Court's Decision Made No Findings
With Respect To Plaintiff's Procedural
Arguments That Defendants' Motion To Dismiss
Should Not Have Been Granted As Unopposed In
Light Of The Fact That Defendants Had
Requested An Adjournment Of Their Own
Motion, Plaintiff Consented Thereto, And The
Court Provided No Notice Of Its Intention To
Decide The Motion As Unopposed.
B. The Court Erred As A Matter Of Law In
Finding That Plaintiff Was An Independent
Contractor And Therefore Not Protected Under
The Law Against Discrimination.
C. The Court Erred In Finding That Plaintiff
Had Failed To Plead Sufficient Facts To
Demonstrate A Hostile Work Environment.
D. The Court Erred As A Matter Of Law In
Finding That Plaintiff Could Not Maintain A
Conscientious Employee Protection Act Claim
A-4111-17T3
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Because He Was Classified As An Independent
Contractor.
E. The Court Erred As A Matter Of Law In
Finding That The Hospital Was Entitled To
Immunity Under The Health Care Quality
Improvement Act.
F. The Court Erred In Finding That Plaintiff
Had Failed To State Causes Of Action For Breach
Of Contract And Breach Of Good Faith And Fair
Dealing.
We discuss each judge's analysis in greater detail in the relevant sections
of this decision.
I.
In Nanavati, the Court decided the appropriate standard for termination of
hospital privileges during a fair hearing requires "concrete evidence" that the
"prospective disharmony" caused by a staff physician, "will probably have an
adverse impact on patient care." Nanavati, 107 N.J. at 254 (emphasis added)
(quoting Sussman v. Overlook Hosp. Ass'n, 92 N.J. Super. 163, 182 (Ch. Div.
1966)). The Court instructed hospitals to "follow fair procedures when
considering staff privileges," prohibiting them from "arbitrarily foreclos[ing]
otherwise qualified doctors from their staff." Id. at 248. It is unnecessary that
the prospective disharmony actually harm patients—only that it "will probably
have an adverse impact on patient care." Id. at 254.
A-4111-17T3
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To merit termination, "hospital authorities should present concrete
evidence of specific instances of misbehavior, such as unjustified altercations
with other doctors or nurses, violations of hospital practices or rules, breaches
of professional standards, or the commission of some other act that will
adversely affect health care delivery." Ibid. The physician's conduct must be
so disruptive "as to throw the hospital into turmoil and prevent it from
functioning effectively. So substantial a disruption could lead the hospital
authorities to conclude that the probable outcome will be harm to the patients."
Id. at 255.
In contrast with the Nanavati standard, the Committee concluded that
Nanavati "failed to prove that the recommendation was arbitrary, unreasonable
or capricious because of a lack of evidence that his behavior towards others
could adversely affect the ability of the hospital to deliver quality health care to
patients." (emphasis added).
This articulation of the standard made Nanavati's burden of proof
insurmountable and predetermined the outcome—to prevail, he was required by
"clear and convincing evidence" to prove the record lacked any evidence that
his behavior "could" adversely affect patient care. The burden placed on him
A-4111-17T3
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was even greater than the burden of proof defined in the bylaws—which itself
diverged to some extent from the language in Nanavati.
The Hospital bylaws state a practitioner exposes himself to "corrective
action . . . whenever a Practitioner engages in any action or behavior . . .
reasonably likely to be disruptive of Medical Center operations or to be
detrimental to patient safety or delivery of good patient care . . . ."
"[R]easonably likely" is not as exacting as "will probably have"—however, it is
more demanding than the "could affect" standard applied by the Committee
when reviewing Nanavati's conduct. "Could affect" encompasses an entire
universe of possibilities, as opposed to probabilities. And neither phrasing
mirrors the Nanavati language.
Nanavati argued to the Chancery judge that the Committee employed the
wrong standard, thereby depriving him of a fair hearing. Although the Chancery
judge repeatedly referenced Nanavati, and even correctly repeatedly referenced
the case's articulation of the standard, nowhere in the decision did he address
the Committee's failure to use the Nanavati standard. The court erred in granting
summary judgment to defendants, and in denying partial summary judgment to
Nanavati, because the Committee expanded their inquiry to include whether
Nanavati's conduct "could have" an adverse impact on patient care. Application
A-4111-17T3
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of a less exacting standard for his conduct to impact patient care prejudiced his
right to a fair hearing.
Separately from ignoring the Committee's actual language, the Chancery
judge focused on Nanavati's real-life failures. Nanavati did not, for example,
timely complete a behavior modification course as required by the Credentials
Committee. He did not complete the psychiatric evaluation that might have
prevented his immediate suspension. The judge said his conduct showed "a level
of recalcitrance that undermines his arguments." Although those facts may be
readily provable by defendants, and ultimately drive the outcome in the
Chancery case—the judge did not first address the law. Had he done so, the
inquiry would have stopped there.
In this case, the Committee decided Nanavati's conduct "could," as
opposed to "probably would," adversely impact patient care. See Nanavati, 107
N.J. at 25. Nanavati was entitled to partial summary judgment as a matter of
law.
Nanavati also contends that the judge should not have granted summary
judgment in light of the highly controverted record. We need not reach the issue.
A-4111-17T3
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II.
Nanavati also contends the Law Division judge erred in granting summary
judgment to defendants because the parties had agreed, with the Chancery
court's reasonable endorsement, to adjourn the motion to dismiss for failure to
state a claim. He argues summary judgment was procedurally improper because
the judge failed to address the fact the parties believed the matter was postponed,
and because no discovery had been taken. He further asserts that the complaint
sufficiently stated a cause of action to withstand a motion to dismiss. We decide
this appeal based upon the judge's failure to address the requested adjournment
in his summary judgment and reconsideration decisions, but briefly touch upon
the judge's comments on the merits.
The judge did not explain his decision to address the motion despite the
request for adjournment. To reiterate, defendants—the moving party—were the
ones who asked for the postponement. Although Nanavati did not join in that
request, he consented to and had previously obtained postponements.
In deciding whether to grant a request for adjournment, a court assesses a
number of well-established factors. See State v. Hayes, 205 N.J. 522, 538
(2011). A court is expected to engage in a "balancing process informed by
intensely fact-sensitive inquiry." Ibid. Applications for continuances or
A-4111-17T3
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adjournments are reviewed for abuse of discretion. State ex rel. Comm'r of
Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013).
That the judge here ignored the request for adjournment was in itself an
erroneous exercise of discretion. He failed to even acknowledge it, much less
make a fact-sensitive determination in light of the factors enumerated by
defendants in their written request.
The notation on his summary judgment decision that the application was
"unopposed" is also problematic. The judge was told a related Chancery action
was ongoing. He had previously granted two requests for postponements made
by Nanavati. This should have triggered some inquiry as to the status of
opposition.
Equally problematic is that the judge converted the motion to dismiss for
failure to state a claim to a summary judgment application even though they
should not ordinarily be granted prior to the completion of discovery. Mohamed
v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div.
2012) (citing Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App.
Div. 2003)). No discovery was taken here. Nanavati's discrimination and
retaliation causes of action in particular required discovery.
A-4111-17T3
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The judge's written decision on Nanavati's motion for reconsideration did
not mention in the analysis portion, or the conclusion section, the request for
adjournment. This is so despite the opinion mentioning the request in the
recitation of facts, and the contention that the court overlooked the request for
an adjournment. The judge instead denied the motion on the merits.
Motions for reconsideration are controlled by Rule 4:49-2. "And, the
magnitude of the error cited must be a game-changer for reconsideration to be
appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010).
The magnitude of the error in this case would seem to us to be a game changer.
Ignoring the request for adjournment was incomprehensible. The parties
reasonably assumed the matter would be adjourned. No discovery had been
taken. The matter was hotly contested.
Reconsideration falls "within the sound discretion of the Court, to be
exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990). We review such decisions applying the same legal standard as
the trial court. See Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62
(App. Div. 2002).
As a matter of fundamental justice, a reconsideration motion filed because
a judge overlooks a consented-to and reasonable request for adjournment is one
A-4111-17T3
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that should have been granted. Furthermore, we have other concerns regarding
the judge's initial decision on the motion for summary judgment.
On the motion, after setting forth the procedural history, plaintiff's
arguments, and then defendants' arguments, the court said only the following:
Viewed in favor of Plaintiff, Defendant's [sic] Motion
shows that there is no genuine issue of material fact. In
combination with Plaintiff's long legal history of
dismissed complaints, Defendant's [sic] arguments
indicate that this . . . matter is so one sided that
Defendant[s] should prevail as a matter of law.
The arguments in Plaintiff's Complaint contradict
themselves or the relevant statutes, and have failed to
establish facts in issue sufficient to warrant the matter
proceeding to trial.
That abbreviated analysis does not satisfy the requirements of Rule 1:7-4, which
mandate that a judge rendering a decision on a motion must make findings of
fact and render conclusions of law. There is a reference to the prior history
between the parties that may have factored into the judge's decision from
irrelevant information. Curiously, on the motion for reconsideration, the judge
addressed the merits at great length. In sum, the judge, having erred in ignoring
the adjournment request, compounded the error by failing to address the request
on the motion for reconsideration.
A-4111-17T3
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We briefly discuss some of our concerns regarding the language in the
merits section of the judge's reconsideration decision. We do not suggest by this
discussion that Nanavati should or should not withstand a second motion for
summary judgment, or prevail at trial, should matters reach that phase.
First, in denying reconsideration, the court found Nanavati to be an
independent contractor and therefore not protected under the NJLAD. The judge
did so in reliance upon Pukowsky v. Caruso, 312 N.J. Super. 171, 178 (App.
Div. 1998). But in Rubin v. Chilton, 359 N.J. Super. 105, 111 (App. Div. 2003),
a more recent case, we rejected the argument that N.J.S.A. 10:5-12(l) never
applies to independent contractors. "The conduct prescribed by [N.J.S.A. 10:5-
12(l)] is exclusively related to non-employee relationships . . . . [A] Hospital
[is] not required to contract for [a contractor's] service but [cannot] not refuse
to do so for discriminatory reasons." Ibid. If Nanavati enjoys the protection of
NJLAD despite being an independent contractor, then the judge's out -of-hand
rejection of the claim was error.
Nanavati also points out that his claim was not time barred by the two-
year statute of limitations for NJLAD. See Montells v. Haines, 133 N.J. 282,
290 (1993). He alleges the Hospital's improper conduct of him began in 1979
and included actions taken through and including November 1, 2016.
A-4111-17T3
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In D'Annuzio v. Prudential Insurance Co. of America, 192 N.J. 110, 121
(2007), the New Jersey Supreme Court in the context of a CEPA claim stated
that the definition of employee "does not exclude, explicitly, p ersons who are
designated as independent contractors," and included "more than the narrow
band of traditional employees." The Court in D'Annuzio adopted the Pukowsky
factors for assessing the real employer-employee status of an alleged
independent contractor, which require a highly fact-sensitive inquiry.
D'Annuzio, 192 N.J. at 114. In other words, even where an employee is labeled
an independent contractor, he or she may enjoy the protection under CEPA after
consideration of the Pukowsky factors. Id. at 120-21. The issue was highly
fact-sensitive—and ordinarily should not be decided based on unopposed
submissions by defendants on a motion for summary judgment.
Similarly, Nanavati's common-law claims should not have been dismissed
out of hand, pursuant to Pierce. Defendants' contention that by alleging causes
of action under CEPA, he waived his common-law claims is unconvincing here.
Given that defendants took the position CEPA is inapplicable because Nanavati
was an independent contractor and not an employee of the hospital, it then
follows logically that Nanavati's common-law claims are not waived under the
exclusivity provision, N.J.S.A. 34:19-8. Assuming that CEPA is applicable,
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dismissal of the common-law claims under the exclusivity provision was in any
event premature. Nanavati did not engage in discovery and was not in a position
to make a meaningful election of whether he wished to pursue his claims under
CEPA or under Pierce.
Additionally, the judge found that the named defendants had immunity
pursuant to the HCQIA, 42 U.S.C. §§ 11111(a)(2) and 11151(9). Nanavati
contends that dismissal under the immunity argument was premature because
the judge did not determine if he was denied procedural due process, or if the
peer review process defendants engaged in was undertaken in bad faith or with
improper motive. On that score, obviously, precluding Nanavati from
submitting a response to the original motion and scheduling oral argument
prevented him from presenting any facts to challenge the immunity.
In sum, we do not understand the reason the judge initially did not address
the request for postponement. Nor do we understand the absence on
reconsideration of discussion about the adjournment request or why discovery
had not been completed, and why the judge converted the motion for failure to
state a claim to a motion for summary judgment.
Reversed.
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