LUCILLE GLENNON et al. v. CHILTON MEMORIAL HOSPTIAL MEDICAL CLINIC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1469-03T21469-03T2

LUCILLE GLENNON and THOMAS

GLENNON,

Plaintiffs-Appellants,

v.

CHILTON MEMORIAL HOSPTIAL

MEDICAL CLINIC, DR. STUART MOSES,

DR. KENNETH STEINHOUSE, DR.

FRANK BAIN, DR. ROBERT BRABSTON,

DR. STUART SIEPSER, DR. LAURIE

NAHUM, DR. KENNETH LUBANSKY, LOIS

KIENSICKI, R.N., CAROLYN HARDING,

R.N., DR. BHARANI PALUVAI, DR.

JACOB VAN DYKEN, DR. MUNZER ARNOUK,

DR. REZA FARHANGFAR, DR. BARRY

GALTON, DR. ABHAY SUDA, DR. MARTIN

ROSENTHAL, DR. DONALD RUMBAUGH,

DR. HEDONEIA JAAJ, DR. MEDHAT

RAOUF, PATRICIA O'DONNELL, R.N.,

and SUE HARPER, R.N.

Defendants-Respondents,

and

E. MORELLI, R.N., JOSLIN

CENTER FOR DIABETES, DR. ROBERT

MELFI,

Defendants.

_______________________________________

 

Argued June 1, 2006 - Decided August 29, 2006

Before Judges Weissbard, Winkelstein, and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County,

L-5964-99.

Cynthia A. Matheke argued the cause for appellants (Lum, Danzis, Drasco & Positan, attorneys; Ms. Matheke, of counsel; Paul M. McCormick, on the brief).

Raymond J. Fleming argued the cause for respondents Chilton Memorial Hospital Medical Clinic, Lois Kiensicki, R.N., Carolyn Harding, R.N., Patricia O'Donnell, R.N., and Sue Harper, R.N. (Sachs, Maitlin, Fleming & Greene, attorneys; Darren L. Goldberger, on the brief).

Michael R. Ricciardulli argued the cause for respondent Dr. Stuart Moses (Ruprecht, Hart & Weeks, attorneys; Jodelyn S. Malzberg, of counsel and on the brief; Kevin G. Boris, on the brief).

Thomas J. Pyle, Jr. argued the cause for respondents Dr. Kenneth Steinhouse, Dr. Stuart Siepser, Dr. Donald Rumbaugh, Dr. Reza Farhangfar, Dr. Barry Galton, Dr. Martin Rosenthal, and Dr. Bharani Paluvai (Post, Polak, Goodsell, MacNeill & Strauchler, attorneys; Jay Scott MacNeill, of counsel; Nancy Crosta Landale, on the brief).

Justin F. Johnson argued the cause for respondent Dr. Frank Bain (Lunga, Evers & Johnson, attorneys; Mr. Johnson, of counsel; Allen J. Scazafabo, Jr., on the brief).

Philip F. Mattia argued the cause for respondent Dr. Robert Brabston, (Philip F. Mattia & Associates, attorneys; Michael J. McBride, on the brief).

Frank P. Leanza argued the cause for respondent Dr. Laurie Nahum (McDermott & McGee, attorneys; Mr. Leanza, on the brief).

William S. Mezzomo argued the cause for respondents Dr. Kenneth Lubansky and Dr. Hedoneia Jaaj (McDonough, Korn & Eichhorn, attorneys; R. Scott Eichhorn, of counsel; Michael J. Chelland, on the brief).

Julia Ann Klubenspies argued the cause for respondents Dr. Jacob Van Dyken and Dr. Munzer Arnouk (Sharp & Brown, attorneys; James F. Sharp, of counsel and on the brief; Arleen G. Richards, on the brief).

Joseph A. DiCroce argued the cause for respondent Dr. Abhay Suda (Mr. DiCroce, of counsel; Cathy Marie Cosgrove on the brief).

Lawrence H. Jacobs argued the cause for respondent Dr. Medhat Raouf (Reiseman, Rosenberg & Pfund, attorneys; Mr. Jacobs, of counsel; Robert J. Logan, on the brief).

PER CURIAM

This matter arises out of a medical malpractice action in which plaintiff Lucille Glennon alleged that she suffered damages as a result of the failure of defendant medical providers to timely notify her of the results of a mammography study that was suspicious of malignancy. Three years later she was diagnosed with cancer. We affirm the grant of summary judgment dismissing the complaint against the radiologist, Dr. Moses. We reverse the grant of summary judgment in favor of the remaining defendants other than Dr. Suda; we also reverse the dismissal, at trial, of the complaint against Dr. Suda.

Plaintiff sought treatment at Chilton Memorial Hospital Medical Clinic (CMHMC) operated by defendant Chilton Memorial Hospital and staffed by defendant medical providers. On March 7, 1994, as part of routine testing, Dr. Suda ordered plaintiff to undergo a mammography study. It was subsequently performed on March 11, 1994. The report, which Dr. Moses prepared, indicated suspicious calcifications and identified the attending physician as the "clinic." The report recommended a biopsy. The results were never communicated to plaintiff, despite the fact that defendant doctors and nurses from CMHMC, including Dr. Suda, treated plaintiff in the months following the mammography study.

On October 15, 1997, plaintiff felt a lump in her breast. The treating physician, who is not a defendant in the present action, ordered another mammogram, which revealed suspicious calcifications. A biopsy confirmed a cancerous growth. Plaintiff underwent a lumpectomy followed by radiation and chemotherapy.

On October 14, 1999, plaintiff filed a four-count complaint alleging negligence against CMHMC, the doctors and nurses who treated her subsequent to the test, and the radiologist who interpreted the mammography results. Plaintiff's spouse, Thomas Glennon, also asserted a per quod claim.

On June 8, 2001, the court considered various motions filed by the parties, including (1) defense motions to dismiss the complaint for plaintiff's failure to timely file an expert report; (2) plaintiff's motion for leave to amend an order entered March 30, 2001, compelling plaintiff to serve any and all expert reports to all defendants within thirty days of the date of the order; and (3) defendants' summary judgment motions. The court denied the motion to dismiss, finding that, although the report was served late, there was sufficient time remaining during which defendants could address the expert report. The court also denied plaintiff's motion to amend the March 30, 2001, order, finding that, contrary to plaintiff's counsel's belief, the order did not "prevent [plaintiff's counsel] from filing . . . additional reports or supplemental reports."

Finally, the court considered the summary judgment motions. The moving defendants argued that the expert report submitted on behalf of plaintiff only implicated the referring doctor and the radiologist, and, therefore, they were entitled to summary judgment as a matter of law since discovery revealed they did not order the mammogram study.

In opposing the motion, plaintiff argued that discovery was incomplete. In addition, relying on Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975), plaintiff alleged that where medical personnel fail to follow up on a medical test, such conduct bespeaks negligence and the burden of proving who is responsible for injuries a plaintiff sustains as a result of that negligence shifts to the defendants to come forward to prove their nonculpability. See id. at 298.

The motion judge rejected plaintiff's arguments and granted summary judgment to defendants. The judge agreed that the expert report failed to articulate any deviation in the standard of care by any of the moving defendants who treated plaintiff subsequent to the 1994 mammography study. The complaint was dismissed with prejudice as to Drs. Farhangfar, Galton, Rosenthal, Paluvai, Steinhouse, Siepser, Rumbaugh, Brabston, Suda, Nahumm, and Bain; Nurses Kiensicki, Harding, O'Donnell, and Harper; and CMHMC. In separate orders dated July 6 and August 31, 2001, summary judgment was also granted in favor of Drs. Van Dyken, Arnouk, and Raouf for the same reasons.

In March 2002, plaintiff moved for reconsideration of the orders granting summary judgment. Following oral argument, the court denied the motion except as to Dr. Suda. The court reinstated the complaint against him, noting that at the time the original summary judgment motions were heard, another doctor was incorrectly identified as the physician who had ordered the mammogram study and it was not until Dr. Suda answered interrogatories that it was learned Dr. Suda had ordered the study.

On February 14, 2003, Dr. Suda filed a motion in limine to dismiss plaintiff's complaint with prejudice for failure to serve the requisite expert report(s), or, in the alternative, to limit the trial testimony of plaintiff's expert to the opinions expressed in the expert's report. On March 5, 2003, Dr. Moses filed a similar motion. The court denied Dr. Suda's motion without prejudice, while the court granted Dr. Moses' motion and dismissed all claims against him with prejudice. The case proceeded to trial on September 25, 2003, against the only remaining defendant, Dr. Suda.

Plaintiff called Dr. Jessica Fuchs Berkowitz, a board certified radiologist, as her expert. During the voir dire related to her qualifications as an expert witness, Dr. Berkowitz acknowledged that she had not worked in a clinic setting since medical school. She testified, however, that she ordered mammography tests while working in the general surgery clinic. Dr. Berkowitz also stated that she did not receive any information about CMHMC's policies and procedures prior to rendering her opinion; nor did she receive any such information after she issued her report. Nonetheless, she testified that there was only one standard of care for follow-up of test results with patients and that the standard applies whether in a clinic or private practice setting.

The trial judge determined Dr. Berkowitz was not qualified to render an expert opinion. The judge noted that, although Dr. Berkowitz was an extremely competent and qualified physician, she was unfamiliar with the standard of care in a clinic setting where "physicians rotate in and rotate out and see patients perhaps on a once-a-year basis with regard to the follow-up that is necessary." Because plaintiff was left without an expert, the judge dismissed the complaint against Dr. Suda.

I.

Our analysis begins with a reiteration of the basic principles of appellate review. The standard of review of a trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). However, summary judgment is not appropriate where discovery is incomplete. Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 619 (2002). The ultimate question in a summary judgment motion is whether, upon a review of the pleadings, deposition testimony and other competent evidence presented, in the light most favorable to the non-moving party, a rational fact-finder could 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). Likewise, our review of a trial court's grant of an involuntary dismissal at trial requires similar analysis. R. 4:37-2(b) and (c); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

In support of their summary judgment motions, defendants noted plaintiff's expert opined that the duty to convey the test results required communication between the radiologist and the treating physician or ordering physician. Defendants argued that summary judgment was appropriate since discovery revealed they were neither the radiologist nor the ordering physician. Plaintiff maintained that discovery was still incomplete. Plaintiff also argued:

[I]n addition, under Anderson[, supra, 67 N.J. 291] . . . where the plaintiff alleges that she . . . was never told of that particular finding, that no defendant has indicated that [as] part of their treatment they did in fact, either receive or discuss that finding with the plaintiff and where the report itself specifically speaks about both the referring and receiving physician that this matter should be denied without prejudice and -- until the referring and receiving physician comes forth with an explanation as to why the matter was not followed up on.

Plaintiff further argued that, as treating physicians, "if [defendants] had knowledge of the mammogram in the chart and that it had not been followed up on, that they would be charged with at least an obligation to make inquiry and to follow up[.]" Finally, plaintiff's counsel pointed out to the court, "we have the treating physician in a clinic situation" where "many, many different physicians -- to who's available to the plaintiff when she comes to the clinic. We don't have a 'treating physician' other than the clinic itself."

We are satisfied the motion judge prematurely granted summary judgment. During oral argument at the motion for reconsideration on April 23, 2002, the record discloses that Dr. Suda's answers to interrogatories were served on June 8, 2001, after oral argument on the summary judgment motions. Thereafter, Dr. Suda was not deposed until November 20, 2002, more than a year after the co-defendants had been dismissed from the case.

In his deposition testimony, Dr. Suda apparently testified that doctors see clinic patients on a rotating basis and, once a patient is seen by a doctor, that particular doctor may not rotate through the clinic again for up to eight or nine months. As a result, the procedure for following up test results requires the next doctor who sees the patient to look at the chart, find out what was ordered, and then communicate it to the patient or to the nurse, who, in turn, would advise the patient to follow up with a surgeon, gastroenterologist, or some other doctor.

When the case proceeded to trial with Dr. Suda as the only remaining defendant, defense counsel, in his opening statement, implicated the intervening doctors. Given Dr. Suda's delay in responding to discovery requests, summary judgment should have been denied. As president of CMHMC, Dr. Suda was in the best position to shed light upon any policies and procedures of CMHMC related to follow-up with patients of test results. Laidlow, supra, 170 N.J. at 619-20. Given Dr. Suda's deposition testimony, it is possible that plaintiff's expert may have opined that other defendant medical providers who attended to plaintiff after the clinic received Dr. Moses' 1994 mammography report had a duty to notify plaintiff of the results of the study. While the motion judge agreed that plaintiff was not precluded from supplementing her expert's report, by simultaneously granting summary judgment, the court severely curtailed plaintiff's ability to support her contention that Dr. Suda and all of the intervening doctors and/or nurses who saw plaintiff had a duty to convey the results or to direct plaintiff for further follow-up. Thus, in essence, the court forced plaintiff to proceed to trial against one defendant, who raised the "empty chair" defense. Bahrle v. Exxon Corp., 279 N.J. Super. 5, 22 (App. Div. 1995), aff'd on other grounds, 145 N.J. 144 (1996). Accordingly, summary judgment was prematurely granted.

II.

When the court excluded plaintiff's expert from testifying, plaintiff was without an expert to render an opinion as to whether Dr. Suda deviated from accepted standards of medical care when he failed to communicate the test results to plaintiff or otherwise follow up on Dr. Moses' recommendations. The court therefore granted defendant's motion for an involuntary dismissal with prejudice. R. 4:37-2(b) and (d).

The sufficiency of an expert's qualifications to render an expert opinion is committed to the sound discretion of the trial court and the decision to admit or exclude expert testimony will not be disturbed on appeal absent "'manifest error and injustice.'" State v. Townsend, 186 N.J. 473, 493 (2006) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). "What we look for from the [expert] witness is 'the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion.'" Hake v. Manchester Twp., 98 N.J. 302, 314 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)). "Thus, a doctor in one field would be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice." Wacht v. Farooqui, 312 N.J. Super. 184, 187-88 (App. Div. 1998). "The weight of any such testimony, of course, is for the jury." Carey v. Lovett, 132 N.J. 44, 65 (1993).

Dr. Berkowitz, a board certified radiologist, testified that as part of her background and experience she had interacted with physicians to order tests and was familiar with the standard of care for communicating and following up test results as it applied to treating physicians. She further testified, over objection, that she was familiar with the standard of care for reporting test results to a patient as it applied to a clinic physician. Although she did not work in a clinic setting after she completed her residency, she testified that she rotated through specialty and general medical clinics while in medical school. She also testified that the standards for follow-up responsibilities related to test results in a clinic setting is a matter of federal law.

In our view, Dr. Berkowtz possessed, at the very least, "'the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion'" on the standard of care imposed upon a physician ordering a radiology report in a clinic setting. Hake, supra, 98 N.J. at 314 (quoting Sanzari, supra, 34 N.J. at 136). Thus, at that point, it was the jury's task to resolve the credibility of her testimony and to ascribe to her testimony whatever weight it deemed appropriate. Carey, supra, 132 N.J. at 65. The trial court therefore abused its discretion when it excluded Dr. Berkowitz' testimony, a decision which ultimately resulted in the dismissal of plaintiff's complaint. Landrigan v. Celetex Corp., 127 N.J. 404, 428 (1992).

Because we conclude that summary judgment was granted prematurely, plaintiff is entitled on remand to supplement her expert report to address Dr. Suda's deposition testimony regarding the CMHMC policies for follow-up of test results with patients. In addition, since Dr. Suda's revelations were disclosed more than one year after his co-defendants were dismissed from the case, any defendants implicated by Dr. Berkowitz in her subsequent report should be permitted to conduct further discovery on this issue.

We find it unnecessary to address whether the facts of this case give rise to the application of Anderson, supra, 67 N.J. at 298. We leave resolution of this issue to the trial court, should any of the defendants other than Dr. Suda again seek summary judgment.

III.

Plaintiff contends the trial judge erred in granting summary judgment in Dr. Moses' favor because the appropriate manner in which to communicate test results is a jury question notwithstanding the absence of expert testimony "explicitly outlining the applicable standard of care and the deviation therefrom . . . ." Jenoff v. Gleason, 215 N.J. Super. 349, 357 (App. Div. 1987). Thus, plaintiff contends that even without Dr. Berkowitz' testimony, ample support existed in the record from which persons with ordinary intelligence could determine whether Dr. Moses deviated from accepted standards of medical care under the common knowledge doctrine. Estate of Chin by Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999).

Dr. Moses argues summary judgment was appropriate because Dr. Berkowitz' report did not offer an opinion that his conduct had a causal connection to any injury plaintiff allegedly sustained, did not criticize his reading of plaintiff's mammogram, and did not criticize the way in which the mammogram result was relayed from his office to the clinic. He further argues the fact that the mammography report was contained within plaintiff's clinical record is evidence that the report was in fact delivered to the clinic.

A radiologist has a duty to communicate the results of a radiology exam to a patient's treating physician. Jenoff, supra, 215 N.J. Super. at 357; see also Sinclair v. Roth, 356 N.J. Super. 4, 12 (App. Div. 2002), certif. denied, 176 N.J. 72 (2003). Additionally, depending on the nature and relationship between the radiologist and the patient, a radiologist may have a duty to communicate the results directly with the patient. Jenoff, supra, 215 N.J. Super. at 357.

According to Dr. Moses' report, the attending physician was the "clinic." There is no dispute that the clinic received the results and placed the results in plaintiff's chart. During appellate argument, plaintiff's counsel conceded that the report was received by the clinic within a reasonable time following the test. Dr. Moses thus satisfied his duty by communicating the mammography results to plaintiff's treating physicians. Nothing in the record indicates the existence of any relationship between plaintiff and Dr. Moses to such a degree that a duty was imposed upon Dr. Moses to directly communicate to plaintiff the test results and his recommendations.

Consequently, under the Brill, supra, standard, we are satisfied there is no basis in the record to disturb the trial court's decision granting summary judgment dismissing the complaint against Dr. Moses. 142 N.J. at 540.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.

 

While the June 8, 2001, transcript indicates "[a]ll those doctors are out [and] [w]e'll detail them more specifically in the written orders that are to follow," neither Dr. Kenneth Lubansky nor Dr. Hedoneia Jaaj are specifically listed in June 8, 2001 order.

The proposed order dismissing the complaint, that accompanied the motion to dismiss filed with the court, was submitted by Dr. Suda's attorney and contained the names of Drs. Suda and Moses. When the court signed the order, it crossed out Dr. Suda's name and added the language "and without as to." We interpret that language to mean the motion was denied without prejudice as to Dr. Suda. The signed order did not reflect the judge's reasons, nor was a transcript of that proceeding made a part of the record on appeal.

Trial actually commenced on September 22, 2003; however, the trial judge granted defendant's mistrial motion for reasons unrelated to the issues on appeal. The second trial began three days later.

The deposition testimony of Dr. Suda was not part of the record submitted in this appeal. It was, however, discussed on the record during pretrial motions and during defense counsel's opening. Moreover, Dr. Suda's deposition testimony was also addressed during appellate argument, where it was represented that Dr. Suda described the clinic policies and protocol for follow-up with patients during the deposition.

We do not address whether the internal clinic procedures discussed by Dr. Suda affect the standard of care. That issue should first be addressed by the trial court.

As the ordering physician, Suda, even in a clinic setting, had a duty to follow up on test results. C.W. v. The Cooper Health System, ___ N.J. Super. ___, ___ (App. Div. 2006) (slip op. at 8).

(continued)

(continued)

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A-1469-03T2

 

August 29, 2006