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Marek v. Professional Health Services Inc.

Decided: June 4, 1981.


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

Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.


The principal issue on appeal is whether the health care entity in this case could delegate to an independent medical contractor its duty of care in reading a patient's x-ray and thus escape liability for that contractor's negligence. We conclude that the duty to perform this patient service was nondelegable; the engagement of an independent contractor created no insulation against liability for that independent contractor's negligence.

Plaintiffs, Roland Marek and Ann Marek, brought this action against defendants, Nayan Kothari, M.D., Professional Health Services, Inc. (PHS), and Johns-Manville Products Corp. to recover damages for Roland's injuries resulting from an alleged error in diagnosis. Ann Marek's claim was per quod; all future references to plaintiff are to Roland only. A verdict against PHS only was returned in their favor for $200,000 for his injuries and for $50,000 on her per quod claim. The verdict was molded to reflect prejudgment interest and a 10% contributory factor. PHS' motion for new trial was denied and it appeals, contending (1) the trial judge erred in ruling as a matter of law that PHS was liable for the negligence of its independent contractor, radiologist Dr. Johnson, (2) the verdict was motivated by prejudice and was excessive and against the weight of the evidence, and (3) the jury instructions were plain error within R. 2:10-2.

Plaintiff had been an industrial employee of the Johns-Manville Company of North Brunswick for 27 years until he ceased working at age 47 in late 1975. During the 1970's Johns-Manville instituted an annual medical examination procedure for its employees. As part of this undertaking Johns-Manville arranged for PHS to take chest x-rays, audiograms and pulmonary

function tests of its employees. Kleinman, a PHS vice-president, described his company as a mobile health testing service operating throughout the United States, serving "thousands of industrial clients."

On October 23, 1974 plaintiff had a single, anterior-posterior chest x-ray taken at a mobile unit parked on company grounds. At trial, plaintiff alleged that this x-ray was negligently read as negative when it actually disclosed an early, treatable stage of lymphatic cancer. In December 1974 plaintiff had his annual company physical performed by Dr. Kothari, a local practicing internist engaged by Johns-Manville. Nothing abnormal was reported from either the 1974 x-ray or physical examination.

The testimony about the next annual examination, performed on October 21, 1975, varies but not in a manner material to the legal issue. On that date Dr. Kothari said that plaintiff had significantly enlarged glands in his neck, armpits and groin. Dr. Kothari was alarmed and plaintiff was advised by him to see his physician "at once." The employer, Johns-Manville, was also informed of plaintiff's condition on the same day. Plaintiff denied receiving this admonition from Dr. Kothari but he did see his private physician, internist Dr. Hart, on November 18, 1975. Plaintiff claimed this visit to Dr. Hart was prompted by a rumor that the plant was to be sold. Plaintiff said he did not know whether the prospective purchaser would provide the same medical coverage as Johns-Manville. Therefore he decided to get a complete physical before the anticipated transaction took place.

On Dr. Hart's advice a biopsy of cervical lymph nodes and bone marrow was performed at Columbia Presbyterian Hospital in New York early in December 1975. Thereafter plaintiff came under the care of Dr. Timothy Gee, Chief of the Leukemia Section of the Memorial Sloan Kettering Cancer Center in New York, on January 5, 1976. Dr. Gee diagnosed plaintiff's disease process as a Stage 4 diffuse, well-differentiated lymphocytic lymphoma. Stage 4 is the ultimate of four stages in the

classification of lymphoma. It is the most extensive, involving the spread of the disease beyond localized lymph nodes to the liver, kidneys, bone marrow, brain and other organs. Plaintiff was immediately placed on an intensive chemotherapy regimen. Since the disease showed no significant response and plaintiff experienced extensive side-effects, chemotherapy was discontinued in June 1976. Dr. Gee confirmed that plaintiff was occupationally disabled and in great discomfort from the time of the first visit in January 1976.

On November 4, 1976 plaintiff was placed on a 30-day treatment program with the experimental drug, interferon. He responded with a partial decrease in lymph node size. Plaintiff reacted to interferon treatment with high fever, appetite and hair loss, nausea and general weakness. Plaintiff's disability continued through the trial which was held in late February 1980.

At trial, plaintiff proceeded on the theory that PHS' subcontractor, Dr. Johnson, negligently misread the chest x-ray of October 23, 1974. Plaintiff's claims for damages consequent upon the alleged delayed diagnosis were limited to physical disability and pain and suffering during his lifetime, lost earnings during his lifetime, and the derivative claim of Mrs. Marek. Plaintiff specifically did not claim damages for foreshortened life expectancy, premature death or resultant loss of earnings.*fn1 Plaintiff claimed that a timely diagnosis from the October ...

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