Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 24, 2026 Get Citation Alerts Download PDF Add Note

L.G.-p. and R.P., Etc. v. Riverview Medical Center

New Jersey Superior Court Appellate Division

• Citations: None known

• Docket Number: A-2693-24

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (333)

• PDF

Combined Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2693-24

L.G.-P. and R.P., h/w,
individually and as parents
and natural guardians
of S.P., a minor,

Plaintiffs-Appellants,1

v.
APPROVED FOR PUBLICATION
RIVERVIEW MEDICAL March 24, 2026
CENTER, HACKENSACK APPELLATE DIVISION
MERIDIAN HEALTH,
and JOEL EDMAN, M.D.,

Defendants-Respondents,

and

GRACE YIA, M.D.,

Defendant.

---

Argued March 2, 2026 – Decided March 24, 2026

Before Judges Sabatino, Walcott-Henderson, and
Bergman.

1
We use initials for the family members to protect the privacy of the disabled
child.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2420-20.

Daniel S. Weinstock argued the cause for appellants
(Feldman, Shepherd, Wohlgelernter, Tanner,
Weinstock & Dodig, LLP, attorneys; Daniel S.
Weinstock and Carolyn M. Chopko, on the briefs).

John M. Hockin, Jr. argued the cause for respondents
(Ronan, Tuzzio & Giannone, PC, attorneys; John M.
Hockin, Jr., of counsel and on the briefs; Robert M.
Pacholski, on the briefs).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal presents important issues concerning the alleged duties of a

hospital and its department chair to ensure that non-employee physicians who

practice there will adhere to hospital policies and patient discharge standards.

We also consider the reasonable specificity necessary to articulate the pertinent

standards of care in a malpractice case alleging such supervisory failures.

The case arises from an infant delivered at the hospital who presented at

birth with jaundice. The infant's attending pediatrician, who was selected by the

parents, was not employed by the hospital, but had clinical privileges to practice

there.

At the time of the jaundiced infant's discharge, the pediatrician orally

advised the parents they could safely place the child at home in indirect sunlight.

A-2693-24
2
That advice indisputably conflicted with then-existing national standards of

pediatric care and the hospital's own internal discharge policy.

The parents took the infant home, but the child's jaundice worsened.

Three days later, the parents returned the infant to a different hospital, where it

was discovered that the baby had sustained brain damage and cerebral palsy.

The parents sued the attending pediatrician, the delivery hospital, and the chair

of the hospital's department of pediatrics for medical malpractice.

After plaintiffs settled with the pediatrician, they continued to pursue

additional recovery from the hospital and the department chair. In doing so,

plaintiffs stressed that the hospital's by-laws specifically obligate its department

chairs to maintain "continuing surveillance and oversight" of "all [p]ractitioners

with [c]linical [p]rivileges and of all [a]ffiliates" at the hospital, and to "enforce"

within their departments the hospital's "policies," "including initiating

corrective actions and investigations of clinical performance."

Plaintiffs also stressed deposition testimony recounting that at least five

other pediatricians at the hospital had been known to give similar discharge

advice recommending treatment with indirect sunlight. The department chair

testified at his deposition that he had been unaware of those instances. Their

expert opined that the failures of the department chair and the hospital to enforce

A-2693-24
3
its policy for jaundiced infants breached standards of care and were a proximate

cause of this infant's permanent disability.

The trial court granted summary judgment to the codefendants, finding

the chair had no notice of the attending physician's divergent discharge practices

and that imposing liability in these circumstances would violate case law

prohibitions on "captain of the ship" 2 theories of liability.

On appeal, we recognize that, as the department chair acknowledged at

his deposition, he had a general duty to ensure that hospital policies were

observed by non-employee doctors who had privileges in his department.

However, plaintiff's expert did not specify in his reports, nor at his deposition,

how that general duty was supposed to be carried out. Apparently, it was not

until oral argument on this appeal that plaintiffs' counsel conceptually described

measures that should have been taken.

We do not regard plaintiffs' liability theory based on negligent failure to

ensure hospital policies are implemented by doctors who are subject to

supervision as a prohibited "captain of the ship" claim. Even so, plaintiffs were

2
The "captain of the ship" theory "impos[es] vicarious liability on a doctor
because of the negligence of others not under the doctor's control or
supervision." Diakamopoulis v. Monmouth Med. Ctr., 312 N.J. Super. 20, 35
(App. Div. 1998).
A-2693-24
4
required—before discovery closed—to delineate with reasonable specificity the

standards of care of policy enforcement and departmental oversight that the

codefendants allegedly breached. Having failed to do so, plaintiffs' claims were

properly dismissed, even viewing the record in a light most favorable to them.

I.

Plaintiffs' child, S.P., was born in August 2018 at defendant Riverview

Medical Center in Red Bank ("the hospital" or "Riverview"). At the time of the

infant's birth, defendant Joel Edman, M.D., was the chairman of the hospital's

Department of Pediatrics, but he was not a hospital administrator. Dr. Edman

was employed by the hospital.

Upon birth, S.P. exhibited jaundice, and a blood test showed S.P. had

heightened bilirubin levels. Both conditions are risk factors for what is known

as hyperbilirubinemia.3

At plaintiffs' request, defendant Grace Yia, M.D., became S.P.'s attending

pediatrician when S.P. was admitted to the hospital directly after birth. At that

time, Dr. Yia, who is Board-certified in pediatrics, had privileges at the

3
"Hyperbilirubinemia" is defined in Stedman's Medical Dictionary 918 (28th
ed. 2013) as "[a]n abnormally high level of bilirubin in the circulating blood,
resulting in clinically apparent icterus or jaundice when the concentration is
sufficient."

A-2693-24
5
hospital.4 She was not an employee of the hospital. Dr. Yia described her

involvement as being limited to attending to newborn patients only after a parent

specifically requested her care.

Dr. Yia first examined S.P. on the day after S.P.'s birth. She noted the

infant's bilirubin levels and observed the jaundice.

The following day, Dr. Yia again examined S.P., noting the child's

condition was "[u]nremarkable . . . except for jaundice of face and chest." Dr.

Yia's examination notes from that day, two days post-birth, additionally stated:

At the time of my evaluation of the infant [two days
after birth], I discussed jaundice with the parents
including physiologic jaundice and what they should do
at home with the child including the use of sunlight and
lamp. I advised that they should look for poor feeding,
lethargy, poor cry and that if the jaundice appeared to
get worse they should contact me.

I also discussed with the parents that the mother could
continue to breastfeed the child or she could
supplement with formula and that they could contact
me after discharge if they had any questions or concerns
and that they should follow-up in my office on Monday
[three days later].

4
Plaintiffs do not claim the hospital negligently credentialed Dr. Yia or that she
was incompetent to treat patients there. Hence, plaintiffs' citation to Corleto v.
Shore Mem'l Hosp., 138 N.J. Super. 302, 309 (Law Div. 1975), involving
conduct by a non-employee doctor who was claimed to be incompetent, is not
on point.
A-2693-24
6
[(Emphasis added).]

S.P. was discharged from the hospital later that same day. The

discharging nurse, Patty Ann Hansen, R.N., testified that it was her practice and

the practice of the hospital to supply "information and written guidelines to all

parents regarding newborn jaundice prior to discharge."

When asked at her deposition about the conversation between Dr. Yia and

plaintiffs before S.P.'s discharge, Nurse Hansen recalled:

[Dr. Yia] just said that the baby had mild jaundice and
that . . . the family was concerned about feeding. . . .
Dr. Yia had just said about the – the importance of
frequently feeding the baby, to place the baby near a
window that was a sunny location to help break down
the bilirubin. She said . . . just to monitor the baby and
to feed the baby frequently, the importance of watching
the voids and stools of the baby. And then at that point
I think I had left to go get the formula because . . . they
were concerned that they didn't have enough milk. . . .
And I exited the room at that point, so I missed the other
part of the discharge, but that's all I was present for.

[(Emphasis added).]

Nurse Hansen further testified that she personally did not give any

instructions about placing the child in the sun or under a lamp at home , as "the

doctor had already done that, and [the nurse] didn't cover that in the morning."

When asked if she typically instructs parents, upon discharge, to place jaundiced

newborns in sunlight, Nurse Hansen testified:

A-2693-24
7
It's based on the doctor. So if the doctor says for us to
tell them that based on their order, then I would do that.
But I don't consistent – I can't say that I consistently
always say to do that unless the doctor specifically says
to put the baby in indirect sunlight.

[(Emphasis added).]

Three days after S.P. was discharged, Dr. Yia received a phone call from

the infant's mother, reporting that she observed "abnormal movements of the

child." Dr. Yia instructed the mother to bring S.P. to an emergency room. The

parents brought S.P. to a different hospital, one with whom Dr. Yia was not

affiliated. S.P. was not under Dr. Yia's care at that point in time.

Ultimately, S.P. was diagnosed with "chronic bilirubin encephalopathy,

also known as kernicterus," a severe condition of permanent brain damage.

The CDC and AAP Guidelines, and the Hospital's Policy

As of the time of these relevant events, national guidelines recommended

against placing jaundiced infants in indirect sunlight as a form of treatment for

that condition. The record includes a "Jaundice Alert" issued by the Center for

Disease Control ("CDC"). The Alert was notably subtitled "What Every Parent

Needs to Know." Among other things, the Alert unambiguously stated that

"[p]utting your baby in sunlight is not recommended as a safe way of treating

jaundice." In her deposition, a nurse leader who worked in the Pediatrics Unit

A-2693-24
8
confirmed her familiarity with the CDC Jaundice Alert, and acknowledged the

Alert does not distinguish between direct and indirect sunlight.

In addition, the American Academy of Pediatrics ("AAP") at that time

apparently recommended against the use of sunlight as a treatment modality for

hyperbilirubinemia. 5 Moreover, Riverview had adopted a written policy that

similarly provided such guidance.6

Testimony that Multiple Physicians at Riverview Recommended Indirect
Sunlight

According to deposition testimony of two fact witnesses, in addition to

Nurse Hansen, multiple physicians at Riverview had a practice of advising

parents with jaundiced infants upon discharge to use indirect sunlight as a form

of treatment. A physician in the department, who personally believed that such

indirect sunlight treatment was not dangerous, identified four other pediatricians

in his group at Riverview who had given such an instruction in addition to

5
The parties have not supplied a copy of the AAP guidelines in their appendices,
but it is referred to multiple times by witnesses in the record.
6
The parties have not furnished a copy of the hospital policy in the appellate
appendices, although it is identified in the defense expert's report as "Policy ID
3621922 Hyperbilirubinemia – Assessments of Newborns in Maternal Child
Services." The policy is also referred to by Dr. Edman, Nurse Hansen, and
plaintiffs' expert in their depositions.

A-2693-24
9
himself. Additionally, the nurse leader testified she had heard of an unquantified

number of physicians giving such instructions regarding indirect sunlight. The

nurse leader did not know if those physicians had "ever [been] told by Riverview

that they should not give that instruction to families." 7

This Lawsuit

Plaintiffs filed this negligence action in the Law Division in August 2020

on behalf of themselves individually and as parents and guardians of S.P. They

initially named as defendants Riverview, an affiliated health system

(Hackensack Meridian Health),8 and Dr. Yia. Dr. Edman was added as a

defendant through an amended complaint in March 2022.

The complaint largely alleged that Dr. Yia's discharge instructions to

plaintiffs, particularly telling them it was acceptable to place their infant in

indirect sunlight, negligently breached pediatric standards of care. Plaintiffs

7
Nurse Hansen testified that she was unaware of any pediatricians or
neonatologists at Riverview who ever "instructed a family to place a jaundiced
baby under a lamp at home." As noted above, Nurse Hansen did allude,
however, without estimating their number, to doctors who instructed parents that
they could use indirect sunlight, although she agreed the practice was "not
uncommon" at the hospital.
8
For ease of discussion, our references to "Riverview" and "the hospital" should
be understood to subsume the health system.

A-2693-24
10
claimed the improper instructions were a proximate cause of S.P. not being

treated sooner and developing brain damage. 9

Apart from those allegations, plaintiffs also pled claims of negligent

failures by defendants to adopt and enforce appropriate hospital policies.

Among other things, the amended complaint alleged that the hospital and Dr.

Edman were liable by:

d. Negligently failing to create and implement
appropriate policies, procedures, protocols, and
instructions to ensure that medical staff, doctors, and
other agents and/or employees involved in the
treatment and care of patients at Riverview Medical
Center were adequately trained to diagnose and treat
the signs and symptoms of hyperbilirubinemia and/or
associated neurological injury in neonatal infants; and

e. Negligently failing to supervise physicians, nurses,
and other providers caring for pediatric patients,
including but not limited to negligently permitting the
practice of physicians discharging jaundiced newborns
with the instruction that they be placed in sunlight.

Defendants denied liability as to all of plaintiffs' claims, and the case

proceeded to discovery. 10

9
We need not delve into these disputed causation issues, given the nature of
our legal analysis that hinges on standards of care.
10
Presumably, plaintiffs supplied defense counsel with the necessary
affidavit(s) of merit ("AOMs") required under N.J.S.A. 2A:53A-27, although

A-2693-24
11
Dr. Yia's Deposition Testimony and Settlement with Plaintiffs

Dr. Yia was deposed in August 2021. During her deposition, she

estimated that she had been seeing patients at Riverview in 2018 periodically,

with varying frequency. She stated that she was aware of the hospital's policies

during that time frame for treating newborns.

Dr. Yia agreed in her testimony that indirect sunlight is not a reliable or

safe treatment for elevated bilirubin, but regarded it as a supportive measure. At

some point unspecified in the record before us, Dr. Yia settled all claims and a

stipulation of dismissal was entered as to her.

The Parties' Experts

Plaintiffs and defendants retained medical experts who presented

competing opinions about whether defendants deviated from standards of care

and proximate causation. Plaintiffs' expert is a Board-certified pediatrician and

neonatologist with decades of experience in hospital and private practice

settings. His experience includes several years as the director of a hospital's

neonatal unit. Defendants' expert comparably is a Board-certified neonatologist,

the AOMs were not furnished in the appellate appendices. Since there is no
claim by defendants that plaintiffs tendered a deficient AOM, our opinion in
Hargett v. Hamilton Park OPCO, LLC, 477 N.J. Super. 390, 397 (App. Div.
2023), certif. denied, 256 N.J. 453 (2024), concerning the AOM requirement is
not pertinent.
A-2693-24
12
who has respectively served as the director and co-medical director at two

hospitals. The parties have not contested before us the qualifications of either

expert.

In his two successive reports and deposition testimony, plaintiffs' expert

criticized the discharge instructions the parents received that recommended

indirect sunlight for their jaundiced child. Among other things, he opined that

"[t]he hospital's obstetrical nurses, the pediatric and neonatal physicians, and

their leadership teams all share responsibility for the continued use [of] indirect

phototherapy for treatment of neonatal jaundice. This was a proximate cause of

[S.P.'s] brain injury." The expert also specifically criticized Dr. Edman and the

hospital for failing to ensure the hospital's policy against indirect sunlight

treatment were carried out:

Dr. Edman and [the hospital] allowed the discharge
practice described above to proliferate. Its duration and
prevalence as described in the depositions constitute
chronic substandard practice, and the failure to be
aware of the practice and/or to correct it was below the
standard of care. That failure caused and contributed
to the injuries sustained by [S.P.].

In opposition, defendants' expert opined that "the use of indirect sunlight

did not cause or contribute to [S.P.'s] injuries." The defense expert noted that

the hospital "had an appropriate policy in August 2018," which was "designed

A-2693-24
13
to 'provide guidelines for assessment of risk and ongoing monitoring of newborn

hyperbilirubinemia in the hospital setting.'" He further stated that the hospital

had appropriate written discharge instructions given to the parents of newborns

"which were consistent with the standard of care." He added that the discharge

packet properly included the CDC Jaundice Alert. The defense expert also

stated that "it is not the responsibility of Dr. Edman to micromanage the practice

of the pediatricians at the hospital."

Summary Judgment and Denial of Reconsideration

The trial court granted summary judgment dismissing plaintiffs' claims

against the codefendants who had remained in the case after Dr. Yia settled. In

a written opinion, the motion judge concluded that plaintiffs failed to

demonstrate a tenable duty owed by Dr. Edman to them. The judge regarded

their assertions of such a duty as a disallowed "captain of the ship" theory.

Additionally, the court found that:

In order to accept [p]laintiff[s'] arguments as presented
before it, the [c]ourt would have to conclude that the
entirety of the individuals working within the
[p]ediatrics [d]epartment were/are under the direct
control of Dr. Edman even when Dr. Edman is not
present at the time of subject care and that Dr. Edman
has a duty to directly supervise the acts of all
individuals administering said care.

....

A-2693-24
14
. . . Dr. Yia had a wide variety of methods to conform
her conduct with what is permitted by hospital policy
and ultimately the proper standard of care, and as
voiced by [plaintiffs' expert], it was not specifically
under the sole and direct scope of Dr. Edman to
supervise Dr. Yia and inspect each and every
instruction which she provided. Furthermore . . . all of
the facts presented before the Court demonstrate that
Dr. Edman had no knowledge of any instruction
allegedly provided by Dr. Yia.

The court also granted the hospital's motion for summary judgment . In

particular, the court found that "[p]laintiffs' proofs are insufficient to establish

proximate causation. Furthermore, it is irrelevant that other physicians at [the

hospital] also gave this instruction [for indirect sunlight treatment] or that such

instruction was commonplace. There is no evidence that those facts contributed

to Dr. Yia's use of this instruction." Plaintiffs moved for reconsideration, which

the court denied.

The present appeal ensued.

II.

Plaintiffs argue the trial court erred in granting summary judgment in

favor of the hospital and Dr. Edman, principally for having failed to view the

record in a light most favorable to their claims. Plaintiffs further contend that

the court misunderstood their claims of supervisory and policy enforcement

A-2693-24
15
liability, mistakenly deeming such arguments to be prohibited "captain of the

ship" theories.

In assessing these arguments, we apply certain well-established

principles. On a motion for summary judgment, courts must view "'the

competent evidential materials presented . . . in the light most favorable to the

non-moving party, [and determine whether they] are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)); see also R.

4:46-2(c). "To decide whether a genuine issue of material fact exists, the trial

court must 'draw[] all legitimate inferences from the facts in favor of the non -

moving party.'" Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in

original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). We

apply these same principles on appeal, de novo, in reviewing summary judgment

rulings. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

Basic principles of medical malpractice (also known as "medical

negligence") law also govern this matter. "'A medical malpractice case is a kind

of tort action in which the traditional negligence elements are refined to reflect

the professional setting of a physician-patient relationship.'" Worthy v.

A-2693-24
16
Kennedy Health Sys., 446 N.J. Super. 71, 91 (App. Div. 2016) (quoting

Verdicchio v. Ricca, 179 N.J. 1, 23 (2004)). "To establish a prima facie case

for medical negligence, 'a plaintiff must present expert testimony establishing

(1) the applicable standard of care; (2) a deviation from that standard of care;

and (3) that the deviation proximately caused the injury.'" Ibid. (quoting

Koseoglu v. Wry, 431 N.J. Super. 140, 156 (App. Div. 2013)). In this appeal,

we particularly focus on the first two elements, i.e., the standards of care and

the alleged deviations from those standards.

In pursuing their claims against Dr. Edman and the hospital, plaintiffs and

their expert emphasize the hospital's by-laws and the responsibilities of a

department chair set forth in those by-laws.11 We examine that argument by first

discussing the regulatory backdrop of such by-laws.

Under New Jersey Department of Health ("NJDOH") licensing standards,

hospitals in this state are required to "establish and implement written policies,

procedures, and bylaws." N.J.A.C. 8:43G-5.2(a); see also Belmar v. Cipolla, 96

N.J. 199, 208 (1984) (noting that "hospitals must adopt rules, regulations, and

bylaws concerning procedures for admission to staff membership"); N.J.A.C.

11
Some of the legal authorities and portions of this record do not hyphenate the
word "by-laws," but we have not altered the spelling when quoting those
sources.
A-2693-24
17
8:43G-5.1 (stating general hospital organizational and written policy

requirements); N.J.A.C. 8:43G-5.2(i) (stating requirements that include formal

title definitions, policies for ongoing requirements for credentials, and written

criteria for disciplinary action).

In addition, NJDOH regulations mandate the implementation of medical

staff by-laws, which control supervisory responsibilities of department chairs

and the organizational hierarchy in reviewing events in which the medical staff

fail to meet quality-of-care standards:

(a) There shall be an organized medical staff that is
responsible to the governing body of the hospital.
Bylaws governing all medical staff members shall be
implemented.

....

(f) The medical staff shall be divided into clinical
departments. Each department shall be directed by a
director, physician director, chairman or chief who is
responsible for its administration and for taking or
recommending action in those instances in which staff
members fail to meet the department's standards of
quality of care.

(g) There shall be an executive committee for the
medical staff which performs supervisory functions,
including reviewing patient care policies and
procedures and serving as a forum for discussing
patient care issues identified by the clinical
departments.

A-2693-24
18
[N.J.A.C. 8:43G-16.1 (emphasis added).]

The record before us includes over eighty pages of detailed by-laws of the

hospital that were in effect as of 2018 at the time of S.P.'s birth. Of pertinence

here is Article 12 detailing the obligations of hospital officers. In particular,

Article 12.2 specifies the qualifications, selection, and various aspects of a

Department Chair. Section 12.2.5, entitled "Duties," declares that:

Each Department Chair shall be responsible for the
clinical, administrative and other activities and
functions of the Department, including, but not limited
to:

....

(b) Develop and implement departmental
programs, in cooperation with the Medical and Dental
Staff President and appropriate committees of the
organized Medical and Dental Staff, for credentials
review and Privileges delineation, orientation and
continuing medical education, quality/resource
management, concurrent monitoring o[f] practice, and
retrospective quality improvement control.

....

(d) Maintaining continuing surveillance and
oversight of the professional performance of all
Practitioners with Clinical Privileges and of all
Affiliates with permission to perform specified services
in the Department, including monitoring the quality of
medical histories and physical examinations performed
by such individuals, and report regularly thereon to the
Medical Executive Committee.

A-2693-24
19
....

(g) Enforce within the Department the Bylaws,
Rules and Regulations, policies, and other
requirements of Hospitals Corp., the Division, the
organized Medical and Dental Staff, and the
Department, including initiating corrective actions and
investigations of clinical performance. [and]

....

(t) Provide continuous assessment and
improvement of the quality of care, treatment and
services provided within the Department.

[(Emphasis added).]

Notably, at his deposition, Dr. Edman agreed that sunlight and lamp light

are not "reliable or safe therapeutic tool[s] for hyperbilirubinemia." He further

agreed that AAP guidelines on that subject "were expected to be followed," and

that "part of [his] role as chair [was] ensuring that pediatricians who were

practicing at Riverview were following AAP guidelines." (Emphasis added).

Dr. Edman also acknowledged that during his tenure as chair of the Pediatrics

Department, "part of [his] responsibility [was] the supervision of pediatric

physicians at Riverview." (Emphasis added).

With respect to the hyperbilirubinemia policy, Dr. Edman explained that

he endeavored to perform his responsibilities as department chair in several

ways. He noted that the hospital's policy was discussed at departmental

A-2693-24
20
meetings, which occurred monthly, and that "affiliated physicians" such as Dr.

Yia were "expected to attend those department[al] meetings." He recalled the

policy was "reviewed at a department[al] meeting" when it was "first instituted,"

and would have been discussed again when it was revised after 2019.

Dr. Edman testified that during his tenure as department chair he was

unaware that some pediatricians at Riverview "would send patients home with

the instruction that their jaundiced babies were to be placed in indirect sunlight."

Plaintiffs' expert asserted that Dr. Edman and the hospital should have

been aware of what he characterizes as this "prevalent" practice during Dr.

Edman's tenure. As we have noted above, the expert concluded that the failures

of Dr. Edman and the hospital to have such awareness and to correct the practice

was "below the standard of care." We reiterate that conclusion as expressed at

the end of the expert's first report:

Unfortunately, Dr. Edman and R[iverview]
allowed the discharge practice described above to
proliferate. Its duration and prevalence as described in
the depositions constitute chronic substandard practice,
and the failure to be aware of the practice and/or to
correct it was below the standard of care. That failure
caused and contributed to the injuries sustained by
[S.P.].

In his second report, plaintiff's expert repeated those conclusions, tying

them to the hospital's by-laws:

A-2693-24
21
In fact, Bylaw 12.2.5(b), requiring "concurrent
monitoring of practice" and "retrospective quality
improvement control" completely undermines
[defendants' expert's] testimony. This is not surprising.
Under [defendants' expert's] testimony Dr. Edman's
duty would be to wait until an adverse outcome occurs,
and only then to perform any type of supervisory action.
The goal is to prevent adverse outcomes in the first
place, not solely to prevent them from reoccurring.
There is no evidence in the record to suggest Dr. Edman
performed any supervision at all in order to see whether
Dr. Yia and others were giving discharge instructions
in conformity with the Department's own policies or
with the standard of care.

Defendants argue these contentions of supervisory breach are inconsistent

with principles of our case law, place undue reliance on language in the by-laws,

and fail to specify what Dr. Edman and the hospital should and could have done

to meet the alleged standards of care. As part of that argument, they further

invoke the prohibition on "captain of the ship" theories of vicarious liability, a

prohibition the trial court underscored in its own analysis.

The captain of the ship doctrine was summarized and applied in Judge

Carchman's opinion in Diakamopoulis, 312 N.J. Super. at 35, and in earlier

published opinions cited in that case. See e.g., Tobia v. Cooper Hosp. Univ.

Med. Ctr., 136 N.J. 335, 346 (1994); Lanzet v. Greenberg, 243 N.J. Super. 218,

231-32 (App. Div. 1990), rev'd on other grounds, 126 N.J. 168, 175 (1991);

Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 322, (App. Div. 1990);

A-2693-24
22
Whitfield v. Blackwood, 206 N.J. Super. 487, 503 (App. Div. 1985), aff'd in

part, rev'd in part, 101 N.J. 500, 502 (1986); Sesselman v. Muhlenberg Hosp.,

124 N.J. Super. 285, 290 (App. Div. 1973). As explained in Diakamopoulis, the

doctrine improperly "suggests imposing vicarious liability on a doctor because

of the negligence of others not under the doctor's control or supervision." 312

N.J. Super. at 35 (emphasis added).

In the present case, plaintiffs' claims against Dr. Edman and the hospital,

viewed in a light most favorable to them, are not entirely claims based on the

negligence of others who are "not under the doctor's control or supervision."

Ibid. (emphasis added). The use of the term "or" within that test signals that

control and supervision are to be considered in the disjunctive. See Cox v. Sears

Roebuck & Co., 138 N.J. 2, 19 (1994) (illustrating the disjunctive use of the

term "or").

We agree with defendants that, as a Board-certified pediatrician

credentialed by the hospital with clinical privileges, Dr. Yia was not under the

"control" of Dr. Edman in terms of the specific care she was rendering to

individual patients at the hospital. Dr. Edman was not plaintiffs' pediatrician,

and nothing in the record indicates that he was consulted or involved in any way

in S.P.'s care. We further agree with defendants that it would be unreasonable

A-2693-24
23
to expect him to guarantee every outcome for patients treated by physicians,

such as Dr. Yia, who have privileges in his department.

Control aside, the separate question of a department chair's duty to

"supervise" other doctors working in that department is a more complicated

matter. The Supreme Court recognized such supervisory responsibility in Tobia,

136 N.J. at 345-46, in which it reinstated failure-to-supervise claims against two

hospital physicians who had such duties. In its analysis, the Court distinguished

"captain of the ship" theories from such supervisory claims. The Court

explained it was "not allowing liability to be imposed on the doctors merely

because they were attending physicians on duty at the time of plaintiff's injury ,

but rather because the jury could find they had specific duties to train and to

supervise the other employees on duty." Id. at 346 (emphasis added).

Plaintiffs argue that the by-laws quoted above impose such a duty to

supervise and "enforce" the hospital's policy concerning indirect sunlight

treatment for hyperbilirubinemia and discharge instructions. Defendants point

to our opinion in Johnson, 239 N.J. Super. at 322-23, in which we held that by-

laws alone cannot furnish the legal standard of care in a medical malpractice

case. We made clear in Johnson that plaintiffs cannot "exalt an exhortatory

statement in the by-laws of the [h]ospital into the legal standard for determining

A-2693-24
24
whether or not the defendant physicians committed malpractice. The relevant

legal standard is defined by law." Id. at 323 (citing Schueler v. Strelinger, 43

N.J. 330, 344 (1964)).

We do not believe Johnson bars plaintiffs in this case from relying upon

the duties expressed in the by-laws, in addition to other indicia of the pertinent

standards of care for the chair of the pediatrics department. Here, there are at

least two such indicia: (1) the opinions of plaintiffs' expert informed by his

undisputed experience as a specialist and a former hospital program director,

and (2) Dr. Edman's own sworn acknowledgment of his duty to "enforce" the

discharge policy.

But what exactly is that duty and the legal standard of care? On that

critical question, plaintiffs' claims, as presented, fall short. The reports of

plaintiffs' expert do not reasonably specify what Dr. Edman did incorrectly or

otherwise failed to do in his role as a department chair with respect to the

discharge instructions. It is undisputed that the hospital's policy disfavoring

sunlight as a treatment practice was developed within the department, discussed

at one or more departmental meetings that would include non-employee doctors

with privileges, and thereby mandated. The discharge packet provided to

A-2693-24
25
parents apparently included the CDC Jaundice Alert cautioning that the practice

was not safe as a form of treatment.

Plaintiffs' expert contends that the deposition testimony of the nurses and

another doctor within the department substantiate that deviations from the policy

by several individual practitioners were "allowed" to "proliferate." Their expert

further declares that "the failure to be aware of the practice and/or to correct it

was below the standard of care." However, that standard of care is not set forth

with any reasonable specificity within the expert's two reports. Nor was it

reasonably specified at his deposition.12

Plaintiffs' counsel asserted conceptually at oral argument on appeal that

the standards of care required Dr. Edman to undertake at least two things: (1) a

review of patient charts to assure compliance with the hospital's policy; and (2)

discussions with the practitioners within the department about the subject.

12
On cross-examination at the deposition, plaintiffs' counsel did ask his expert
about passages within an AAP sentinel alert and from another professional
advisory on the subject of hyperbilirubinemia, neither of which had been cited
in the expert's two reports. The passages quoted from those sources in the
deposition transcript recommend that hospitals "raise awareness," "review their
current patient care processes," and "identify strategies for risk reduction," but
do not specify in those transcribed passages how to do so. The expert did not
elaborate on the actual steps needed to be taken to comport with those general
goals, beyond the adoption of the hospital's policy disapproving of sunlight
therapy and the departmental meetings as described by Dr. Edman.
A-2693-24
26
Although we appreciate counsel's ingenuity, an oral argument on appeal is not

an appropriate time to attempt to cure critical gaps in the expert reports and

deposition testimony presented in discovery.

Moreover, plaintiffs have provided no reasonable specificity of the

standards of care, in terms of the frequency and extent of patient chart reviews,

how files are selected, any professional guidelines for conducting such reviews,

and so forth. Likewise, plaintiffs' position is unspecified as to what discussions

within the department are required, who must attend them, and why the meetings

described by Dr. Edman at his deposition were insufficient.

A hallmark of a fair civil discovery process is reasonable notice of the

expert contentions of an opposing party and the evidence and professional

standards upon which that party intends to rely. See Rice v. Miller, 455 N.J.

Super. 90, 105 (App. Div. 2018). That objective was not fulfilled here, because

the expert proofs that plaintiffs tendered about standards of care lacked

reasonable specificity. Indeed, case law from other jurisdictions illustrates the

importance of standards of care being expressed with reasonable specificity,

which unfortunately was absent here.13

13
Other state courts have imposed comparable specificity requirements to
delineate the standards of care. See Hurtt v. Goleburn, 330 A.2d 134, 136 (Del.

A-2693-24
27
1974) (in the context of a negligence action, "[t]he standards must be stated with
specificity sufficient to enable the Court to determine if the conduct conformed
to them") (emphasis added); Locke v. Pachtman, 521 N.W.2d 786, 792-94
(Mich. 1994) (finding that plaintiff had failed to provide a prima facie case of
medical malpractice[,] in part because no specific testimony had been elicited
"regarding what a reasonably prudent surgeon would have done") (emphasis
added); Uriegas v. Kenmar Residential HCS Servs., Inc., 675 S.W.3d 787, 789
(Tex. 2023) ("[i]n articulating the standard of care and breach, an expert report
'must set forth "specific information about what the defendant should have done
differently"'; that is, '"what care was expected, but not given"'") (internal
citations omitted) (emphasis added); Havens v. Hoffman, 902 P.2d 219, 223
(Wyo. 1995) ("[t]he standard of care [in a medical malpractice case] must be
stated with specificity sufficient to enable the court to determine if [the plaintiff]
properly disclosed the risks and alternatives in conformance with the standard")
(internal citation omitted) (emphasis added); Johnson v. Schafer, 565 S.W.3d
144, 148 (Ark. Ct. App. 2018) (ruling that plaintiff's expert's testimony did not
state the standard of care "with specificity") (emphasis added); Dunham v. Univ.
of Maryland Med. Ctr., 187 A.3d 757, 766 (Md. App. Ct. 2018) (a plaintiff in a
medical malpractice action "must 'identify with some specificity, the person
whose actions should be evaluated'") (internal citation omitted) (emphasis
added); Tobin v. Providence Hosp., 624 N.W.2d 548, 569 (Mich. Ct. App.
2001); (ruling that "[t]he trial court . . . erred in failing to require that plaintiff's
experts testify with specificity regarding the standard of care applicable to each
medical professional whose failures of care allegedly constituted malpractice")
(emphasis added); Martinez v. Redford Cmty. Hosp., 384 N.W.2d 134, 135
(Mich. Ct. App. 1986) ("[w]e . . . hold that the degree of specificity required in
pleading a medical malpractice action flows from the circumstances and nature
of the case rather than from any objective heavier burden of pleading imposed
on medical malpractice actions") (emphasis added); Hogan v. Hattiesburg
Clinic, P.A., 374 So. 3d 1264, 1269 (Miss. Ct. App. 2023) (ruling that plaintiffs
had "failed to demonstrate with any specificity how further expert opinion would
have established that [a doctor's] alleged breach proximately caused the injuries
suffered by [one of the plaintiffs]") (emphasis added); Renaissance Healthcare
Sys., Inc. v. Swan, 343 S.W.3d 571 (Tex. Ct. App. 2011) (reciting the
proposition that, in a medical malpractice action, an "expert report must discuss
'the standard of care, breach, and causation with sufficient specificity to inform

A-2693-24
28
We recognize that defense counsel did not argue below that the plaintiffs'

expert violated the "net opinion" doctrine, perhaps waiting to raise it in a future

motion in limine, if necessary. See Townsend, 221 N.J. at 53-55 (delineating

the net opinion doctrine). But the deficiencies we have discussed here are not

fundamentally "net opinion" defects, as they concern what exactly the standards

of care are, rather than the expert's reasons for advocating them.

Hence, we affirm the trial court's grant of summary judgment to

defendants, albeit for different reasons than those cited by the motion judge. See

Isko v. Plan. Bd. of Livingston Twp., 51 N.J. 162, 175 (1968) (noting it is

"commonplace" in appellate review to affirm orders on grounds different than

those expressed by the trial court); State v. Armour, 446 N.J. Super. 295, 310

(App. Div. 2016) (applying that same principle). In doing so, we are keenly

aware of the tragic condition of plaintiffs' child, but are obligated by the above

legal reasons to uphold defendants' dismissal.

Affirmed.

the defendant of the conduct that plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.'") (internal
citation omitted) (emphasis added).
A-2693-24
29