On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
O'Brien, Skillman and Landau. The opinion of the court was delivered by O'Brien, J.A.D.
Plaintiffs appeal from the dismissal of their action against defendant Dr. Mark R. Peck (Peck) at the end of their case, pursuant to R. 4:37-2(b), and the denial of their motion for a new trial against defendants Dr. James F. Gleason (Gleason) and Dr. Daniel R. DeMeo (DeMeo). We reverse as to Peck and DeMeo, but affirm as to Gleason.
Betty Jenoff (Jenoff) fractured her wrist at work on September 2, 1980. She was hospitalized on September 13, 1980 for a surgical procedure on her wrist. X-rays were ordered of plaintiff's left wrist and chest. Chest X-rays were ordered because of a hospital policy established by the department of anesthesiology, to obtain chest X-rays of all adult patients to determine whether the patient would be a suitable candidate for anesthesia.
Chest X-rays were taken on September 14 and 15, 1980.*fn1 Both chest X-rays were read by Peck, a radiologist, on the day they were taken, at which time he dictated a report of his findings. Both reports reflect a finding of a two centimeter nodule within the left lower lobe, suggesting possible bronchogenic neoplasm (a lung tumor). The first report recommended tomography of the area for further delineation, and the second report recommended appropriate follow-up examinations. Peck did not communicate his findings to her treating physician other than by the preparation of his reports. The reports were actually typed on September 16, 1980 and arrived at the nurses' station on the floor where Jenoff was hospitalized on September 17, 1980, after she had been discharged.*fn2
Jenoff underwent general anesthesia and the wrist surgery was successfully performed on September 15, 1980. Because of pain, her scheduled discharge for September 16 was delayed until September 17, 1980.
Jenoff had been under the care of Gleason, a specialist in cardiovascular disease and internal medicine, for many years. Jenoff had been hospitalized in February 1980 for a heart problem and had only returned to work on April 9, 1980.*fn3 Because of Jenoff's other conditions, particularly her vascular problems, Gleason was consulted by the orthopedic group for a medical evaluation prior to her wrist surgery. This consultation
occurred on September 14, 1980 at 11:00 a.m., before the chest X-ray had been taken. Gleason concluded that Jenoff was an "acceptable risk for surgery tomorrow subject to chest X-ray." The following morning, September 15, Gleason attempted to look at the X-rays, but was advised that they were in the operating room with the patient. Since the chest X-ray had been taken for purposes of administering anesthesia and the patient was in the operating room, Gleason did not thereafter review the X-ray nor the interpretative report.
DeMeo, an orthopedic surgeon, performed the surgery on Jenoff's wrist. Although he viewed the wrist X-rays in the operating room, he did not see the chest X-rays. Jenoff was discharged from the hospital on September 17, and had follow-up visits to DeMeo at his office. A discharge summary was prepared on October 27, 1980 by a licensed practical nurse on behalf of DeMeo who subsequently reviewed and signed it. According to DeMeo, when the discharge summary was prepared and he reviewed it, the interpretative report of the chest X-rays was not attached to Jenoff's hospital records. Nonetheless, as part of the discharge summary, the licensed practical nurse put down "chest X-ray unremarkable" and DeMeo checked and approved it. DeMeo acknowledged his responsibility for the discharge summary.
On November 26, 1980, Jenoff's hospital records were reviewed by a nurse on behalf of Travelers Insurance Company, the workers' compensation carrier for Jenoff's employer. She became alarmed by the chest X-ray finding and wrote to DeMeo and Gleason. Gleason then ordered new chest X-rays to be taken which revealed growth of the tumor. Jenoff was finally informed of her condition on December 10, 1980. A mediastinoscopy performed in January revealed that the disease had spread. Radium and chemical therapy followed, but Jenoff died on September 25, 1982.
During her lifetime Jenoff had instituted two separate medical malpractice actions against various ...