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Illiano v. Seaview Orthopedics

March 24, 1997


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

Approved for Publication March 24, 1997.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Pressler, P.j.a.d. Stern, J.A.D., Concurring.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by


This appeal raises an entire controversy issue. Plaintiffs Giuseppe Illiano, Coreen A. Illiano, his wife who sues per quod, and their original personal injury attorneys, Peter A. Allegra and the firm of Allegra, Nebelkopf & DeConca, P.C., appeal from a summary judgment dismissing their consolidated complaints against defendants Seaview Orthopedics, Dr. Michael F. Lospinuso, and Jacklyn B. Glavin. We are persuaded that the entire controversy doctrine does not bar this action, and accordingly we reverse and remand.

This litigation has its genesis in an automobile accident that occurred on September 18, 1987, when a vehicle driven by Dorothy Gilbert struck the vehicle of plaintiff Giuseppe Illiano. He sustained a back injury that did not respond to conservative treatment. In early July 1989, he was referred to defendant Dr. Lospinuso, a principal of Seaview Orthopedics, who performed diagnostic tests and determined that plaintiff was suffering from a herniated disc at L5-S1. He recommended surgery and on August 16, 1989, performed a microdiscectomy. Plaintiff has apparently had a good recovery.

In late July 1989, apparently after the surgery had been scheduled and the extent of the injury known, plaintiff Allegra filed an automobile-negligence personal-injury action for the Illianos against Gilbert. As we understand the record, there was little if any dispute of Gilbert's negligence//--she had apparently pulled out of her lane of traffic and directly into Illiano's path. The primary issue in that litigation was, therefore, the extent of the Illianos' damages. In preparation for trial, Allegra obtained Lospinuso's reports. For some unexplained reason, Lospinuso erroneously reported, as part of Illiano's medical history, both the time of occurrence and the cause of his back injury.

Thus, Lospinuso's discharge summary began as follows:

The patient is a 37-year old male again complaining of right leg pain. He is a local pizzamaker who has been having this pain for some time after lifting heavy set of boxes and involved in an automobile accident.

His two-page final report of plaintiff's condition and treatment began as follows:

Mr. Joseph Illiano was first seen in our office on 7/3/89 for a complaint of right leg pain and right buttock pain. He had this pain since an accident which occurred approximately three months ago. He had seen numerous physicians including a physical therapist as well as a chiropractor for his problems. All are suggesting conservative, rehabilitative care.

Yet a third version of the history appears in the hospital record, in which Lospinuso, as the attending physician, noted that Illiano had the right leg and buttock pain "since an automobile accident occurred approximately three months ago." Since the Illianos were seeking damages for injuries sustained by Giuseppe Illiano in an automobile accident almost two years prior to the surgery, it is perfectly obvious that Lospinuso's record entries of both a back injury sustained by lifting boxes at work and an automobile accident three months prior to the surgery were devastating to their pending action against Gilbert.

Allegra first became aware of Lospinuso's misunderstanding in November 1989 when he, Allegra, called him to make sure that the surgical bills had been paid by the Illianos' personal injury protection (PIP) carrier. Dr. Lospinuso apparently advised Allegra that he was in the process of preparing his bill, but had no knowledge that the herniated disc he had treated was caused by an automobile accident, insisting that plaintiff himself had told him that he had sustained the injury at work while lifting boxes. Allegra assured him that this was a two-year-old automobile accident injury and that he, Allegra, would send Lospinuso copies of Illiano's previous medical reports. Allegra then immediately reported these events to the Illianos, instructing them to communicate forthwith with Lospinuso to "explain the correct history of this case." Allegra also explained to ...

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