JOHN CIFARETTO v. MARK J.K. DALTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3556-09T4

JOHN CIFARETTO and

JUDITH CIFARETTO, his

wife,

Plaintiffs-Appellants,

v.

MARK J.K. DALTON, M.D.,

ROBERT E. WOLD, M.D., and

RIVERVIEW MEDICAL CENTER,

Defendants-Respondents.

________________________________________________________

March 11, 2011

 

Argued November 30, 2010 - Decided

 

Before Judges Graves and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-476-07.

 

Dennis A. Drazin argued the cause for appellants (Drazin & Warshaw, PC, attorneys; John R. Connelly, Jr., on the brief).

 

Karla M. Donovan argued the cause for respondent Mark J.K. Dalton, M.D. (Buckley & Theroux, LLC, attorneys; William G. Theroux, of counsel; Ms. Donovan, on the brief).

 

James H. Moody argued the cause for respondent Robert E. Wold, M.D. (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Mr. Moody, of counsel; Peter V. LaGregor, on the brief).

 

Henry P. Butehorn argued the cause for respondent Riverview Medical Center (Ronan, Tuzzio & Giannone, attorneys; Mary Ann Nobile Wilderotter, of counsel; Mr. Butehorn and John M. Hockin, Jr., on the brief).

PER CURIAM

Plaintiffs John and Judith Cifaretto appeal from the grants of summary judgment to defendants Mark J.K. Dalton, M.D. (Dalton), Robert E. Wold, M.D. (Wold), and Riverview Medical Center (Riverview).1 Plaintiff contends that the motion judges erred because he had established a prima facie case of medical negligence based upon the totality of the evidence in the motion record. Having considered this argument in light of applicable legal standards, we affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). In conducting our review of the motion record, we accord plaintiff the benefit of all the favorable evidence and inferences. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 230.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.

 

[Brill, supra, 142 N.J. at 540 (second alteration in original) (quotations omitted).]

 

We then decide "whether the motion judge's application of the law was correct." Atlantic Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

I.

From the motion record and the parties' briefs, we discern that on March 25, 2005, at approximately 9:00 a.m., plaintiff presented to Riverview's emergency department with complaints of lower back pain. He was first examined by Dalton, an emergency room physician. Plaintiff told Dalton that he had "jerked [his] lumbar area" in a "sli[p]/fall" four days earlier. Dalton ordered a lumbar spine x-ray, which Dalton subsequently read as revealing disc narrowing between the fourth and fifth lumbar vertebrae. Dalton diagnosed plaintiff with a back strain, prescribed pain medication and discharged him from the hospital with instructions to follow up with his primary care physician, Dr. Denoia.

Plaintiff's x-rays were also forwarded to the radiology department, where they were interpreted by Wold, a radiologist. In his report, transcribed at 3:00 a.m. the following day, March 26, Wold noted in addition to the disc narrowing, a 1.4-centimeter stone, or "calculus," in plaintiff's left abdomen. Wold's report further indicated that the calculus "could represent a calcified lymph node although a ureteral stone cannot be clearly excluded." It is undisputed that when plaintiff was discharged on March 25, or at anytime thereafter, the information regarding the presence of the calculus was not transmitted to him or to Dr. Denoia. Discovery revealed that the radiology report was in plaintiff's medical file at Riverview, but it is unclear who placed it in the file and when.

Plaintiff apparently did not follow up with Dr. Denoia. Several months later, in August 2005, plaintiff was admitted to Riverview's emergency department with complaints of urinary frequency and burning, and an irregular heartbeat. Plaintiff was diagnosed with urosepsis and septic shock caused by the impaction of a stone in his left ureter. After several unsuccessful treatments at Riverview, doctors at Morristown Memorial Hospital removed the stone on March 8, 2006. Nevertheless, plaintiff allegedly suffered permanent renal damage from the impaction.

On January 29, 2007, plaintiff filed his complaint against Dalton, Wold, and Riverview alleging that they deviated from appropriate standards of care by failing to inform him of the stone. Plaintiffs produced expert reports from David C. Saypol, M.D., M.S., F.A.C.S., a urologist, dated December 26, 2006; Roger A. Berg, M.D., F.A.C.R., a radiologist, dated April 3, 2007; and Gerald J. Melnick, M.D., an emergency medicine physician, dated January 9, 2008.

On January 10, 2008, Wold moved for summary judgment. In support of his motion, Wold attached the reports of Saypol and Berg. Saypol opined that Dalton deviated from medical standards by not "appris[ing] [plaintiff] of the large calcification identified on the x-ray," and "this breakdown in communication deprived [plaintiff] of an opportunity to undergo elective removal of his left ureteral calculus," which was a proximate cause of his ultimate injury.

Berg asserted that "[i]t was not required that . . . Wold or the Radiology Department telephone . . . Dalton with the X-ray findings." Moreover, "[i]f Dr. Dalton undertook to interpret[] the lumbar spine X-rays by himself and not read the radiology report, it was a deviation to miss the left ureteral stone." Accordingly, Berg concluded that "[i]t was . . . Dalton's responsibility to ensure that he had the official radiology report and take appropriate action" and that "[Dalton's] failure to do that was a deviation from accepted standards."

Plaintiff, Dalton, and Riverview objected to Wold's motion, claiming it was premature because there had been no discovery as to Riverview's policy regarding communication between the radiology and emergency departments. The judge, however, granted the motion reasoning:

I would agree that the motion was premature if there was anything at all to suggest some liability on the part of . . . Wold. Here, though, every single shred of evidence indicates exactly the opposite. He read the x-ray correctly. He wrote the report correctly. He was under no duty to convey it to the patient. There may even be ethics prohibiting him from communicating it directly to the patient. As far as anyone can tell, including the experts, he did everything exactly properly.

 

I have no problem with the usual, well wait [until] discovery i[s] over before you do that, but that's only where [there is] something to suggest it. If we have to wait [until] discovery is over for everybody, we may as well join the triage nurse, we may as well join the Director of . . . Medical Practice in the hospital. There has to be something to suggest that this person did something wrong and here there's absolutely nothing.

 

The judge entered an order dated February 15, 2008, dismissing the complaint as to Wold, but ordering that he "may be produced as a fact witness without subpoena."

We digress briefly to provide some of the deposition testimony of Wold and Dalton regarding the procedures employed at Riverview during the relevant time frame. Wold testified that he was employed by Red Bank Radiologists, a group of physicians contracted "to read all the radiology studies at Riverview Medical Center." He further testified that generally emergency room x-ray results at Riverview were "initially interpreted by the emergency room physician" who would "write their interpretation on . . . some type of document" that would "accompany the films down to the department of radiology."2 A requisition was sent to the radiology department to interpret the film and prepare an independent report.

A radiologist independently evaluated the x-rays and determined whether any discrepancies existed between the two interpretations. Wold acknowledged that a radiologist must sometimes contact an ordering physician directly, but the circumstances requiring such communication were limited:

In general it would be something that was initially interpreted and completely missed; i.e. as an example, in a chest x-ray the patient has chest pain they read it as normal and it's what's called a pneumothorax. That would be something that I would call up [the ordering physician] and say, "hey, there's a pneumothorax here."

 

If there's an x-ray of an arm they say . . . is normal but there is a fracture. Those are the types of things that I would call up on.

 

Wold described plaintiff's calculus as "an incidental finding" that would not require him to contact the ordering physician, in this case, Dalton.

In his deposition, Dalton described the procedures in place in Riverview's emergency department in 2005:

Q. Would you, back in March of 2005, have typically spoken with the radiologist regarding x-rays that you had ordered for emergency room patients?

 

. . . .

 

A. Back in 2005 if I would have [had] a concern, I would have called the radiologist and spoken to him directly. Majority of the time I would review the x-rays according to the patient's complaint and utilize[] the piece of information, the x-ray, in conjunction with the patient's history, physical examination, vital signs, and then utilize[] that in the complete manner to diagnose, come up with some conclusion, and then discharge the patient accordingly.

 

. . . .

 

Q. . . . Did [radiology readings] . . . go back to the emergency department . . . ?

 

A. Back in 2005, [official readings] did not generally go back to the emergency department . . . . Only discrepancies or concerns after the radiologist read the study . . . and a system was in play for those discrepancies or concerns of the study to be then handled appropriately.

 

Q. Okay. When you say a discrepancy or a concern, can you tell me what you mean by that?

 

A. [L]et's say hypothetically, the physician and emergency room physician read no fracture and the radiologist read it as a fracture, that's a discrepancy. If the x-ray or film was a chest x-ray and the emergency room physician hypothetically again was reading looking for pneumonia or pneumothorax, air around the lung, and he read it as such but didn't see a nodule, then it would be sent back as a concern.

 

Dalton explained that an emergency room physician would write his or her "initial diagnosis or reading of the x-ray according to the patient's complaint" on a "green card." This card would accompany the results themselves to the radiologist, who would make a "determination . . . as to whether or not there was a discrepancy or concern." If the radiologist discovered a discrepancy or concern, he or she would return a "pink slip" to the emergency department, which the "secretary on duty" would "give . . . to the emergency physician working the 8:00 to 6:00 shift." Using this "pink slip" and the patient's record, the emergency physician would determine how to respond, including contacting the patient directly if necessary. Dalton believed no such "discrepancy" report was made in plaintiff's case because it was not reflected on his medical chart.

On April 9, 2009, Dalton and Riverview moved for summary judgment. In support of his motion, Dalton attached excerpts from the depositions of Saypol, Berg, and Melnick. In his original report, Melnick opined that while plaintiff's "presentation was consistent with lumbar pain secondary to a recent fall, that d[id] not . . . release . . . Dalton from the respons[ibilit]y of informing his patient or . . . Denoia . . . that a potentially significant additional finding . . . was present." Melnick believed "this failure on . . . Dalton's part (and institutionally, the Departments of Radiology and Emergency Medicine) represent[ed] a deviation from the standard of care."

However, when deposed, Melnick testified that Dalton's actions "[did] not represent a deviation from the standard[] of care." Melnick further stated that once Wold recognized the "possibility . . . that this could be a very large ureteral stone . . . the responsibility devolve[d] on him to make that known."

Saypol testified that there was a deviation from medical standards "in not communicating the findings of an x-ray obtained on [plaintiff] in a timely fashion." But, he agreed that he could give no opinion as to "who or what entity did not follow through with that communication."

Berg testified that he had reviewed the procedures used at Riverview, but acknowledged that he was not an emergency room physician.

Plaintiff opposed the motions, but plaintiff's appendix does not indicate what material was furnished in opposition. However, at oral argument on the motions, plaintiff's counsel referenced Berg's deposition testimony as follows:

Dr. Berg who is our radiologist expert criticized . . . Dalton in his reports, but then in his deposition said well, it was the ER doctor and/or the staff, because of the procedural --

 

. . . .

 

Well, it was very convoluted, but it is to the effect that he (Berg) didn't know precisely, factually whether or not . . . Wold flagged it as a problem.

 

. . . .

 

[Berg's] attitude was there was a problem so somebody should have notified the patient.

 

. . . .

 

And he generalized it to the ER doctor and/or the hospital staff.

 

On May 28, 2009, a second judge, who was now handling the litigation, concluded that "there [wa]s no evidence that . . . Dalton did anything wrong." She granted summary judgment. However, she denied Riverview's motion, concluding that there was a question of fact as to whether the hospital "follow[ed] through with the procedures" and on the issue of "apparent agency." The judge further suggested that given the "newly discovered evidence," plaintiff should "move quickly" to "bring back . . . Wold."

On June 2, 2009, plaintiff moved for reconsideration of the February 15, 2008 order granting Wold summary judgment. In support of the motion, plaintiff attached Saypol's, Berg's and Melnick's reports, as well as additional deposition excerpts from Berg and Melnick.

Specifically, Berg testified that "the emergency room physician and/or the emergency room department . . . dropped the ball in terms of not communicating the results of the report rendered by . . . Wold to [plaintiff] or [plaintiff's] personal physician." Berg opined that Dalton had "dropped the ball," because he had "an affirmative obligation to ensure that the official radiology report . . . be reviewed by him or another competent physician . . . to see whether or not . . . Dalton's independent x-ray interpretation was correct."

Melnick testified that "it [wa]s reasonable for . . . Dalton to assume that the system would deal with any discrepancies that came up and therefore [he] d[id] not hold . . . Dalton responsible because from . . . Wold's deposition . . .[,] that was never communicated to the emergency department." Melnick offered no criticism of the procedures employed by Riverview, but he acknowledged that "Wold should have taken some further action and that his failure to act should be attributable to the hospital."

However, in opposition to the motion for reconsideration, Wold noted that Melnick was board-certified in emergency medicine, not radiology. He further noted that plaintiff's board-certified radiology expert, Berg, offered no criticism of Wold. Wold also argued that the rules and regulations of Riverview called for his report to be forwarded to the ordering physician, and the radiology department was not to contact the patient. Wold further contended that Melnick's opinion was based in part upon his understanding of "a relationship between . . . Wold and the hospital and the interpretation of any contractual agreements," none of which Melnick had reviewed.

The judge denied the motion for reconsideration. She concluded that there was no "expert report by a radiologist which indicates that . . . Wold, who is a radiologist[,] deviated." The judge also concluded the motion was time-barred under Rule 4:49-2.

Riverview again moved for summary judgment in September 2009. It claimed that the evidence supported neither a direct claim, nor any vicarious claims, against it since Wold and Dalton had both been granted summary judgment. Plaintiff's counsel conceded that the complaint did not assert any direct claims against Riverview "in the sense . . . that[] says[] th[e] [hospital's] policy [wa]s inadequate." The judge noted, "the question is should the Court keep in Riverview . . . under apparent authority?" She reserved decision on the motion.

Some weeks later, the judge orally placed her conclusions on the record. She granted the motion as to any direct claims against Riverview, but denied summary judgment on the theory of respondeat superior, concluding a genuine disputed fact existed as to Wold's "apparent authority," citing our decision in Estate of Cordero v. Christ Hosp., 403 N.J. Super. 306 (App. Div. 2008).

Riverview moved for reconsideration. It argued that since the two alleged agents of the hospital -- Wold and Dalton -- were granted summary judgment, the hospital as principal could not be liable as a matter of law. Plaintiff argued that "the exoneration of each individual doesn't necessarily exonerate the hospital." The judge again noted that no expert directly criticized Riverview's policy or its enforcement of the policy. She granted the motion for reconsideration and dismissed plaintiff's complaint against Riverview.

II.

Plaintiff now appeals from the following orders: (1) the February 15, 2008 order granting Wold summary judgment; (2) the May 28, 2009 order granting Dalton summary judgment; (3) the June 26, 2009 order denying plaintiffs' motion for reconsideration of the grant of summary judgment to Wold; and (4) and the February 19, 2010 summary judgment order as to Riverview.

We begin by noting some basic principles that inform our review.

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. Thus, a plaintiff in a malpractice action must prove the applicable standard of care, Rosenberg v. Cahill, 99 N.J. 318 (1985); that a deviation has occurred, Clark v. Wichman, 72 N.J. Super. 486 (App. Div. 1962); and that the deviation proximately caused the injury, Germann v. Matriss, 55 N.J. 193 (1970).

 

[Verdicchio v. Ricca, 179 N.J. 1, 23 (2004).]

 

It is generally recognized that in the ordinary medical malpractice case "the standard of practice to which [the defendant-practitioner] failed to adhere must be established by expert testimony," and that a jury generally lacks the "requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert."

 

[Rosenberg, v. Cahill, 99 N.J. 318, 325 (1985) (alteration in original) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)).]

Expert evidence offered against a medical specialist may only be provided by a witness who is qualified in that specialty. See N.J.S.A. 2A:53A-41(a) ("If the party against whom . . . the testimony is offered is a specialist . . . and the care or treatment at issue involves that specialty . . ., the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty"). The Court has said that the statute "provides more detailed standards for a testifying expert . . ., generally requiring the challenging expert to be equivalently-qualified to the defendant." Ryan v. Renny, 203 N.J. 37, 52 (2010).3

Applying these standards to the order granting Dalton summary judgment, it is clear that plaintiff's appeal lacks sufficient merit to warrant any extensive discussion. R. 2:11-3(e)(1)(E). Plaintiff's emergency medicine expert, Melnick, ultimately offered no criticism of Dalton. To the extent Saypol or Berg criticized Dalton, they were not qualified to express expert opinions in the field, and plaintiff does not contend otherwise. Therefore, summary judgment was appropriately entered in favor of Dalton.

The same analysis must apply to plaintiff's claim against Wold. Berg was plaintiff's expert radiologist. Berg opined that someone had "dropped the ball" in the notification process, but his criticism in this regard focused on Dalton or the emergency department at Riverview. He rendered no criticism of Wold's interpretation of plaintiff's x-ray, nor did he opine that the professional standard of care required Wold to notify plaintiff or his physician of his finding. Plaintiff does not contend that he established a prima facie case against Wold based upon Berg's report and deposition testimony.4 In light of the motion record presented to the judge below, summary judgment was properly granted to Wold.5

At oral argument before us, plaintiff focused on his claim against Riverview, contending that the policies and procedures in place were inadequate to assure notification. Specifically, plaintiff draws our attention to Riverview's written "Emergency Department" procedure, an exhibit in Dalton's appellate appendix. In short, the policy provides that a patient should be contacted "following discharge" "to identify any discrepancies between preliminary reports and an official report from the . . . Radiology Department, and to assure that patient care has been or will be properly rendered." The policy requires the "Radiology Department [to] hand-deliver a copy of discrepancies . . . to the charge nurse or designee," who in turn "will give the reports to the Emergency Department Physician." Further, "[i]f patient care follow-up is necessary, the [emergency department] physician will call the patient." The deposition testimony of Wold and Dalton, cited above, was consistent with the written policy.

Plaintiff's complaint never made a direct claim of negligence against Riverview, and, during argument on Riverview's summary judgment motion, plaintiff conceded this point. Indeed, Melnick, plaintiff's expert in the field, specifically concluded that Riverview's policy was appropriate.

Plaintiff is therefore left with a claim that Riverview was vicariously liable for the negligence of its agents, presumptively Wold and/or Dalton.

For an employer to be held liable for the acts of an agent, "a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Carter v. Reynolds, 175 N.J. 402, 409 (2003). "Generally, a principal is immune from liability for the negligence of an independent contractor, or that of its employees, in the performance of the contracted services." Estate of Cordero, supra, 403 N.J. Super. at 312 (quotations omitted). An exception to this general rule is the doctrine of "apparent authority." Ibid. (quotations omitted). In the context of medical treatment, there exists a "strong inference" that a patient who accepts care does so under a "reasonable belief" that "the service is rendered [o]n behalf of the hospital." Id. at 318 (citation omitted).

In this case, however, plaintiff was unable to establish, in the first instance, that either Wold or Dalton were negligent. As a result, there is no vicarious liability on the part of Riverview through application of either the doctrine of respondeat superior or apparent authority. Therefore, the motion judge properly reconsidered her earlier ruling and granted Riverview summary judgment.

A

ffirmed.

1 Judith Cifaretto's per quod claim is derivative of her husband's claims. We shall use the singular, "plaintiff," throughout this opinion, referring to plaintiff John Cifaretto.

2 It is not apparent from the record whether such a "document" was prepared or if it was produced during discovery. Wold testified that he "did not know exactly what [the emergency room doctor] wrote" in this case.

3 The statute also provides for a waiver of these requirements in certain circumstances. N.J.S.A. 2A:53A-41(c); Ryan, supra, 203 N.J. at 53. The waiver provisions are not relevant to this case.

4 Plaintiff has not cited the following portion of Berg's deposition, nor does it appear that it was furnished to the motion judge as part of plaintiff's motion for reconsideration:

Q. Okay. So if the radiologist is aware of the preliminary interpretation by the emergency room physician and the radiologist interprets the films as showing something that is not contained within that preliminary interpretation by the emergency room physician and does not . . . complete the discrepancy process, that would represent a deviation by the radiologist, correct?

 

A. Under those circumstances, yes.

We assume in light of our discussion above that it could not be established that Wold knew what Dalton's preliminary interpretation of plaintiff's x-ray was, but only that the reason for the x-ray was plaintiff's complaint of pain. In his deposition, Berg agreed that Wold "didn't have clinical information as to what complaints, if any, the patient had at the time" except that the "requisition" for a "low back x-ray" noted plaintiff had complaints of "pain."

 

5 We do not agree with the motion judge's conclusion that plaintiff's motion for reconsideration was time-barred pursuant to Rule 4:49-2. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:49-2 (2011) ("The time prescription of th[e] rule applies only to final judgments and orders."); see also Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 260-61 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988) (permitting review of previously-granted summary judgment orders based upon alleged newly-discovered evidence without regard to the time frames contained in the Rule).