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Vasily v. Cole

Decided: April 1, 1980.

MARY VASILY, PLAINTIFF-APPELLANT,
v.
NATHANIEL COLE, M.D., DEFENDANT-RESPONDENT



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

Bischoff, Botter and Dwyer. The opinion of the court was delivered by Botter, J.A.D.

Botter

With leave granted by us pursuant to R. 2:2-4, this interlocutory appeal concerns the right of a medical malpractice panel, appointed pursuant to R. 4:21, to ask for and receive plaintiff's hospital records not submitted by either party.

Plaintiff commenced this medical malpractice action in November 1976 against defendant who had treated her over a period of years. According to documents contained in the record before us, plaintiff was first seen by defendant in August 1957 for a growth on the left side of her nose diagnosed as basal cell carcinoma. Defendant removed the growth surgically and apparently there was no recurrence at the site until late in 1966. A second operation was performed in February or March of 1967. This was followed by further recurrences and additional surgery performed by defendant. One operation may have been performed in February 1968 according to information attributed to defendant. Another operation was performed in August 1970 which included removal of a growth and plastic reconstruction, including skin grafting, involving the eyelid, cheek and nose. Further recurrences were treated by defendant in 1974 and 1975. Eventually, in late 1975 plaintiff left the care of defendant in circumstances that are disputed. Apparently both parties agree that defendant recommended that plaintiff go to the Memorial Sloan Kettering Cancer Center (Memorial Hospital) in New York. Plaintiff was treated at Memorial Hospital in December 1975, followed by extensive surgery there in January 1976. A "massive tumor" was discovered, requiring the removal of plaintiff's left eye and a portion of her nose. Radiation

therapy was commenced, but plaintiff's condition deteriorated and she was readmitted to Memorial Hospital in 1978 for "excision of basal cell carcinoma of nose with total amputation of nose," according to the discharge summary of May 13, 1978.

Plaintiff contends that defendant was negligent in failing to give her radiation therapy and more vigorous treatment in the early stages of the disease, specifically, after the recurrence in 1966 or thereabouts. An opinion to this effect is embodied in the report of plaintiff's expert which was submitted to the malpractice panel.

In accordance with R. 4:21-2(c), the pretrial order in this action required the submission of this medical malpractice claim to a panel as provided in R. 4:21, the provisions of which apply to all medical malpractice actions. R. 4:21-2(a). The panel consisted of a judge, a medical doctor and an attorney. R. 4:21-4(a). The pretrial order provided generally that hospital records "may be offered without formal proof." It required the submission of "the information for the panel" by a specified date in 1979. The parties were further ordered to advise the panel whether they intended to rely on testimony in addition to the submitted information, but the record before us suggests the evidence was presented in written form only. It appears that the surgery performed on plaintiff by defendant was done at the Middlesex General Hospital. While portions of the Memorial Hospital records were submitted to the panel, none of the Middlesex General Hospital records were presented by either party.

On May 25, 1979 the judge on the panel wrote the attorneys as follows:

The medical malpractice panel hearing held on this case on Tuesday, May 22, 1979 was a disappointment. The information submitted to the panel on both sides was insufficient to enable a panel to arrive at a decision.

You will shortly receive a request from me for additional information and the panel will be reconvened.

On June 11, 1979 the panel judge again wrote the ...


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