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Kelly v. Berlin

April 29, 1997


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

Approved for Publication April 29, 1997.

Before Judges Michels, Muir, Jr., and Kleiner. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by


Plaintiff Robert Kelly appeals from the Law Division's involuntary dismissal of his medical malpractice action against defendants Burgess Lee Berlin, M.D. (Dr. Berlin) and Stephen Toder, M.D. (Dr. Toder).

The record shows that plaintiff was injured in an automobile accident on January 26, 1990. Plaintiff subsequently instituted a negligence action against the driver of the automobile with which he had the accident. As a result of the accident, plaintiff went to Saint Barnabas Medical Center's emergency room on January 28, 1990 and was referred to Dr. Berlin, an orthopedic physician, on February 1, 1990. When Dr. Berlin first saw him, plaintiff complained of headaches, neck and shoulder pain, and lower back pain. Dr. Berlin initially diagnosed plaintiff with acute cervical myositis, bursitis and tendinitis in the shoulder, and post-traumatic headaches. Dr. Berlin, however, did not diagnose any problems with plaintiff's lower back. Dr. Berlin then recommended a course of treatment, but plaintiff returned on February 15, 1990 with similar complaints. Dr. Berlin then had a MRI (magnetic resonance imaging) and electromyographic evaluation done on plaintiff's middle and upper back and his neck. Because plaintiff had persistent pain, Dr. Berlin had him admitted to Orange Memorial Hospital on April 17, 1990 through April 24, 1990; while at the hospital, plaintiff was put in traction. Dr. Berlin last treated plaintiff on August 28, 1990 and advised plaintiff to perform certain exercises to minimize his pain. Dr. Berlin gave plaintiff a "guarded" prognosis.

While plaintiff was in the hospital in April of 1990, Dr. Berlin sent plaintiff's x-rays to Dr. Toder, a radiologist, for evaluation. Dr. Berlin had included among the x-rays, x-rays of plaintiff's cervical spine and, mistakenly, x-rays of another patient's lumbar spine. In fact, no x-rays had ever been ordered or taken of plaintiff's lumbar spine. The x-rays were delivered in a jacket with plaintiff's name on the front, but the other patient's name plate was visible on the actual lumbar x-rays. In his report to Dr. Berlin, Dr. Toder noted that the lumbar x-rays revealed that the lumbar curvature was somewhat straightened, possibly due to spasm, but that the overall lumbar spine was normal.

On November 20, 1990, Dr. Berlin issued a report to plaintiff outlining the above events: plaintiff's complaints, his (Dr. Berlin's) diagnosis, and his treatment of plaintiff. In the report, Dr. Berlin apparently relied on Dr. Toder's reading of the other patient's lumbar x-ray because Dr. Berlin stated, "Lumbar spine films, taken outside the hospital, were read on April 18, 1990, which showed a straightened lumbar curvature consistent with spasm." In March of 1991, in reliance on this report, plaintiff settled his automobile accident action against the negligent driver for $70,000.

In the fall of 1991, however, plaintiff was still suffering from lower back pain and went to see Dr. Paul O'Connor. Dr. O'Connor diagnosed plaintiff with spondylolisthesis of the L5-S1 vertebrae and was of the opinion that the injury was causally related to the automobile accident. Spondylolisthesis occurs when one vertebrae becomes partially dislocated and slips forward on the vertebra below it.

Because plaintiff was not aware of the spondylolisthesis when he entered into the settlement agreement for the automobile accident, the amount of the settlement did not encompass or reflect that injury. Plaintiff thereupon instituted this action against Dr. Berlin, Dr. Toder, and Hospital Center at Orange (HCO). Plaintiff claimed that Dr. Toder negligently failed to realize that the lumbar x-rays were of another patient. Plaintiff also argued that Dr. Berlin negligently failed to order x-rays of plaintiff's lumbar area, negligently provided Dr. Toder with the wrong x-rays, and negligently failed to properly diagnose plaintiff's condition. In addition, plaintiff asserted that HCO was liable for the negligence of Dr. Toder and other unnamed employees.

Plaintiff further argued that because he had already settled the underlying automobile accident case, he was precluded from making further claims against the driver for his spondylolisthesis condition. He also alleged that if he had known of the spondylolisthesis at the time of the settlement, he would have settled for a greater sum. Plaintiff, thus, sought to recover, among other damages, the moneys he would have received by way of settlement if Dr. Berlin and Dr. Toder had properly diagnosed his spondylolisthesis. Plaintiff also originally sought to recover damages for aggravation of his injuries due to lack of treatment caused by Dr. Berlin's and Dr. Toder's failure to diagnose his spondylolisthesis, but subsequently abandoned this claim.

Plaintiff did not proffer any expert witnesses or reports establishing that Dr. Berlin's and Dr. Toder's conduct deviated from the standard of care to which each was required to adhere. In addition, plaintiff did not offer any expert testimony calculating the amount of damages he would have received by way of settlement if his spondylolisthesis condition had been known to him prior to the settlement of the automobile accident case. The only expert offered by plaintiff was Dr. Paul Hobeika, M.D., who was of the opinion that plaintiff's spondylolisthesis was causally related to the automobile accident.

Dr. Berlin moved for summary judgment on the ground that plaintiff had failed to proffer an expert report establishing the appropriate standard of care required of him (Dr. Berlin) in this matter. While the record is not entirely clear, apparently HCO also moved for summary judgment. The trial court denied defendants' motions, but compelled plaintiff to identify all experts within twenty days and to provide copies of all expert reports as to deviation from the standards of care, proximate cause, and damages within sixty days or be barred from producing such testimony at trial. Plaintiff failed to comply with the order and HCO and Dr. Berlin again moved for summary judgment. Plaintiff then moved for a thirty-day extension to secure an expert report and also argued that expert testimony was not needed because a prima facie... case could be established under the theories of common knowledge and res ipsa loquitur. The trial court then signed a consent order entered into by Dr. Berlin, HCO, and plaintiff that required plaintiff to provide all expert reports by a specified date and declared that plaintiff would be limited to the use of those expert reports at trial. In ...

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