Karen Kidd May 13, 2016, 11:44am


TRENTON, N.J. (Legal Newsline) – A New Jersey appeals court ruling has blurred the line between private and public for government contractors who find themselves named in lawsuits, a Hackensack business attorney says.

In mid-April, a three-judge panel on the Appellate Division of New Jersey's Superior Court ruled that plaintiffs who sue contractors employed by public entities, such as the government, need not comply with New Jersey's Tort Claims Act's 90-day notice provision.

"Basically, for purposes of notice of a tort claim against it, a private government contractor performing work on a government contract is treated as it would if it were performing a private job," said Adam J. Sklar, of Cole Schotz.

"That is, in the private sector, there is no requirement that an injured party give a contractor or any other private entity, pre-suit notice of a potential claim, so a private contractor would be treated the same way.

"So, while the injured party would need to be provide such pre-suit notice to any public entity it wished to sue for the same injury, or risk the claim being barred, it would not need to provide such notice to the private government contractor it may also have a suit against.

That government contractor might only find out about the claim when the complaint is filed, which could be two years after the date of the injury.

Sklar said that could make it "more difficult to investigate the incident and the injury, among other things."

Sklar, who has represented companies and individuals in high-stakes business litigation and construction disputes, fraud claims, consumer fraud, public and other litigation, has blogged about the case.

The case, Ginamarie Gomes vs Monmouth County, was filed by a woman jailed in Monmouth County Correctional Institution for more than three weeks in the summer of 2012 because of an acknowledged parole violation.

Gomes reported to the institution June 2, 2012. As part of intake into the institution, Gomes received a medical screening, during which she came into contract with workers of the private company, Correct Care Solutions, there to provide inmate medical care.

Gomes disclosed to Correct Care Solutions medical staff that she suffered from asthma, heroin withdrawal, kidney disease, hepatitis C and other medical issues. Gomes also told the private company's medical staff that she'd been prescribed Cipro, an antibiotic, as well as an inhaler for her asthma.

For reasons not at all clear, the Cipro was confiscated from Gomes during the intake process, the court's ruling said. Correct Care Solution's medical staff's decision to order a five-day supply of Cipro only to cancel it to await blood test results and the arrival of Gomes' medical records, the ruling said. Gomes never received her prescribed Cipro dosage, the ruling said.

After intake, Gomes repeatedly reported a variety of symptoms, including sore throat, coughing, lower back pain, decreased mobility and other ailments, for which the medical staff provided her with palliative medications, according to the ruling. This continued until June 25, 2012, when Gomes was transferred to a hospital and diagnoses with a large epidural abscess with cord compression, the ruling said.

In her lawsuit, Gomes told the court she is permanently paralyzed and incontinent, a condition that could have been prevented had she been provided with the Cipro with which she'd been prescribed.

The court came to its conclusion after reviewing the state's Tort Claims Act, paying particular attention to definitions for “public entity” and a “public employee," as well as the act's notice provisions, Sklar said.

"In regard to the underlying policies, the court noted that while a private contractor also would have an interest in claim-related information," he said.

Quoting the ruling, he said, "Early in the process for, among other things, risk management and investigation purposes, 'the central objectives of the TCA’s notice provision are solely related to the benefit of governmental decision-makers and, ultimately, the taxpayers who might bear the costs of a successful claim.'"

However, the court pointed out that its ruling was limited to the TCA’s pre-suit notice provisions and not to other protections provided by the TCA to government contractors. For instance, private contractors working for the state still retain certain TCA immunities and special defenses the act's derivative immunity.

"Derivative immunity means that the where the TCA grants immunity and defenses to the public entity based on certain enumerated statutory grounds, that immunity would also extend to the public contractor," Sklar said. "That is, the contractor’s immunity is derivative of (or derived out of) the public entity’s immunity."

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