Opinion
DOCKET NO. A-3107-13T1
11-02-2015
MAMDOUH HANNA, Plaintiff-Appellant, v. VIVIAN CHERN SHNAIDMAN, Defendant-Respondent.
Tomas Espinosa, attorney for appellant. Pisciotti, Malsch & Buckley, PC, attorneys for respondent (William J. Buckley, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt, and Currier. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1268-10. Tomas Espinosa, attorney for appellant. Pisciotti, Malsch & Buckley, PC, attorneys for respondent (William J. Buckley, on the brief). PER CURIAM
Plaintiff Mamdouh Hanna brought this action against defendant Vivian Shnaidman alleging she wrongly submitted a defamatory report to the New Jersey State Board of Medical Examiners (Board). The various counts of his complaint were dismissed under three separate orders dated September 16, 2010, September 13, 2013, and February 14, 2014. It is from those three orders that Hanna now appeals. After reviewing the record in light of the contentions now advanced on appeal, we affirm.
After Hanna and his former spouse, Racha Youssef, were divorced, they continued to litigate the issue of custody as to their three children. As a result of certain allegations, the family court judge appointed Vivian Shnaidman, M.D., to conduct a psychiatric evaluation of Hanna in order "to determine what type of visitation would be in the best interests of the children." Before the interviews began, Hanna signed a consent form acknowledging that he understood that the evaluation was not confidential or private, and that Shnaidman would be preparing a report for the court. After conducting interviews with Hanna, Youssef, Youssef's current husband, and two of the children, Shnaidman issued her report on January 24, 2009. The report was very unfavorable to Hanna, and Shnaidman concluded by recommending that Hanna be denied any type of visitation or contact with his children. The judge ultimately agreed with that recommendation, and suspended Hanna's visitation and contact with the children.
Hanna is a licensed medical doctor. Based on her evaluation, Shnaidman had concerns regarding Hanna's ability to safely practice medicine. She contacted the Board and was informed that, as a health care professional, she was required to report any suspicions of illegal behavior or mental illnesses, as mandated by N.J.S.A. 45:1-37. As a result of her contact, in May 2009, the Board subpoenaed a copy of Shnaidman's report and began an investigation.
Hanna contends that he first learned of the investigation and Shnaidman's contacts with the Board in January 2010. Ultimately the Board concluded that Hanna was fit to continue to practice medicine.
In May 2010, Hanna filed a complaint against Shnaidman alleging: defamation, malicious prosecution, "psychiatric treatment of [a] patient disclosed," and medical malpractice. Shnaidman moved to dismiss all of Hanna's claims with prejudice, and the judge granted the motion to dismiss the medical malpractice claim with prejudice by order of September 16, 2010. In his decision, the judge ruled that "a party cannot pursue malpractice claims for a psychological evaluation performed in the context of a matrimonial dispute due to [the] litigation privilege." He concluded that because Shnaidman was appointed by the court, she was protected by the litigation privilege and therefore owed no duty to Hanna. The remainder of the motion was denied.
After the completion of discovery, Shnaidman moved for summary judgment on the remaining counts. A different judge heard this motion and by order of September 13, 2013, dismissed the defamation claim as time barred by the one-year statute of limitations. Finally, Shnaidman moved for summary judgment on the remaining counts and on February 14, 2014, the second judge granted that motion and dismissed the remaining claims. The judge found Hanna was unable to satisfy one or more of the elements for a malicious prosecution claim and there was no viable cause of action for a claim of psychiatric treatment of a patient disclosed. This appeal ensued.
We first address the dismissal of the defamation claim. Summary judgment is appropriate only where there exists no genuine issue of material fact in light of all pleadings, depositions, answers to interrogatories and admissions to file, in conjunction with any affidavits. R. 4:46-2(c). Without making credibility determinations, the court considers the evidence "in the light most favorable to the non-moving party" and determines whether it would be "sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2(c); see also Suarez v. E. Intern. Coll., 428 N.J. Super. 10, 26-27 (App. Div. 2012), certif. denied, 213 N.J. 57 (2013). A court reviewing a trial court's disposition under the summary judgment standard shall apply that same standard on appeal. W.J.A. v. D.A., 210 N.J. 229, 237 (2012); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 381-82 (2010).
The judge found that Hanna's defamation claim was barred by the one-year statute of limitations. The judge relied on May 8, 2009 as the date the Board received Shnaidman's report, thus barring the claim as the complaint was filed more than a year later. Hanna argues on appeal that he was unaware Shnaidman had provided the report to the Board until January 2010, and he should be entitled to assert his claim under the discovery rule since the publication date was not known to him until that time. A careful reading of the record belies Hanna's assertions. In his deposition Hanna testified that he learned the Board was conducting an investigation in March 2009. This is corroborated by argument before the family court judge in March 2009, where Hanna's counsel mentioned numerous times that Shnaidman's report had been sent to the Board. Hanna was present during that court proceeding.
N.J.S.A. 2A:14-3 requires "every action at law for libel or slander must be commenced within 1 year next after the publication of the alleged libel or slander."
We, therefore, need not address whether the discovery rule should be applied to a defamation case. That argument is not applicable to this case. Hanna was aware of the Board's receipt of Shnaidman's report in March 2009. His complaint was untimely filed in May 2010. The judge appropriately dismissed the defamation claim.
We conclude that Hanna's arguments as to the other three claims are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by the respective judges. We add the following brief remarks.
As to the claim for malicious prosecution, a plaintiff must show that the defendant's original action was "(1) instituted without reasonable or probable cause; (2) actuated by malicious motive; (3) ended in favor of plaintiff; and (4) resulted in special grievance to plaintiff." Paul v. Nat'l Educ. Ass'n, 189 N.J. Super. 265, 267 (Law Div. 1983). "[F]ailure to prove any one" element will result in the claim's failure. Lind v. Schmid 67 N.J. 255, 262 (1975). We find that Shnaidman did not institute an action for the purposes of a malicious prosecution claim. She formed an opinion in her capacity as a psychiatrist and as required by statute relayed her concerns to the Board. Her report was only obtained after the Board issued a subpoena for it. It was the Board that determined there was cause to begin and pursue an investigation against Hanna, not Shnaidman. See Brien v. Lomazow, 227 N.J. Super. 288, 303 (App. Div. 1988). Therefore, the grant of summary judgment was appropriate as Hanna was unable to prove the required elements of the cause of action.
N.J.S.A. 45:1-37 requires "a health care professional" to "promptly notify the [Board] if that health care professional is in possession of information which reasonably indicates that another health care professional has demonstrated an impairment, gross incompetence or unprofessional conduct which would present an imminent danger to an individual patient or to the public health, safety or welfare." --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION