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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.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.