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Westphal v. Guarino

Decided: January 12, 1978.

ELIZABETH WESTPHAL, AS EXECUTRIX OF THE ESTATE OF WILLIAM WESTPHAL, DECEASED, AND ELIZABETH WESTPHAL, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
LAWRENCE A. GUARINO, M.D., MURRAY WAGMAN, M.D., DOMINICK A. SCIALABBA, M.D., STUART J. FRIEDMAN, M.D., AND JOHN F. KENNEDY COMMUNITY HOSPITAL, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Middlesex County.

Lora, Seidman and Milmed.

Per Curiam

[163 NJSuper Page 141] Plaintiff Elizabeth Westphal, individually and as executrix of the estate of her deceased husband, instituted a medical malpractice suit against four physicians, Lawrence A. Guarino, Murray Wagman, Dominick A. Scialabba and Stuart J. Friedman, and the John F. Kennedy Community Hospital, alleging that their negligence

in failing to make a correct diagnosis resulted in the death of her husband. A pretrial motion for summary judgment made on behalf of Dr. Guarino was granted. At the commencement of the trial plaintiff voluntarily dismissed the complaint as against the hospital with prejudice. The trial proceeded against the remaining defendants and resulted in a verdict of no cause of action. Plaintiff appealed the resultant judgment.

The single issue raised on appeal (though divided into two points in plaintiff's brief) is whether the trial judge clearly abused his discretion to the prejudice of plaintiff by refusing to relax R. 4:17-7 so as to permit plaintiff's medical experts to testify.

In January 1972 plaintiff's husband developed chills, headache and nausea. He was treated by Dr. Wagman, who diagnosed the ailment as severe influenza. When decedent failed to respond to treatment and later developed a high fever, Dr. Wagman caused him to be admitted to John F. Kennedy Community Hospital on February 6. The patient remained there until March 23, when Dr. Howard Z. Joselson, engaged by plaintiff in replacement of Dr. Wagman and the specialists who had been treating her husband, had him transferred to East Orange Hospital, where he came under the care of Dr. Howard E. Medinets, a neurologist. Death occurred on March 29, 1972.

Plaintiff sought to establish at the trial that Drs. Scialabba and Friedman, neurologists who performed spinal taps on her husband at the John F. Kennedy Community Hospital, erroneously concluded that he was suffering from a subarachnoid hemorrhage, whereas in fact the illness was a bacterial infection. The death certificate gave the cause of death to be "cerebral infarction, due to brain abscess, due to meningitis," but a later autopsy revealed no indication of meningitis. Dr. Joselson, testifying for plaintiff, expressed the opinion that Dr. Wagman had deviated from accepted medical standards by giving decedent an antibiotic which probably would not have helped the condition and which

masked the growth of the bacterial infection, and that Drs. Scialabba and Friedman deviated from those standards by misreading the spinal taps and thus failing properly to diagnose the illness as a bacterial infection.

Defendants produced Dr. Medinets who, in response to a hypothetical question, said that the diagnosis of subarachnoid hemorrhage was correct, that Dr. Wagman's initial use of antibiotics was beneficial, and that none of the defendants had deviated from accepted standards of medical care.

Plaintiff argues that the exclusion of her proposed expert medical witnesses compelled her to go to trial only with the medical testimony of Dr. Joselson, whom she had not intended to use to prove negligence or proximate cause. She submits that it was "unjust to compel a plaintiff to try a medical malpractice case without competent and prepared expert witnesses."

The testimony of the proposed experts, Dr. James Zimmerly and Dr. Bernard Sussman, was barred on defendants' motion at the outset of the trial because their names had not been supplied and their reports not furnished to defendants within 20 days of the first date fixed for trial, as specified in R. 4:17-7. The trial judge refused to relax the rule because of plaintiff's failure to move in advance for said relief. He was of the view that defendants, having objected to the lateness of the names and reports, were under no burden to go forward despite their objection and take depositions of the experts.

Dr. Wagman's interrogatories relating to expert witnesses, propounded in April 1974, were answered merely by inserting "H. Joselson." and "To be provided." The response to those submitted by ...


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