Before Judges D'Annunzio, A.a. Rodr¡guez and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Plaintiffs filed this action based on allegations of medical malpractice and negligent spoliation of evidence. The trial court granted defendants' motions for summary judgment. Plaintiffs appeal is limited to their claim of negligent spoliation of evidence. *fn1 We affirm.
The material facts, viewed most favorably for plaintiffs, indicate the following. On February 14, 1992, plaintiff Edith Proske underwent mammography at the Chilton Memorial Hospital Mobile Unit ("Chilton"). Dr. Albert De Dios read the mammogram for Chilton and sent a report to Edith's physician, Dr. John Kindzierski, in which he said the following:
Please be advised that the recent mammography performed on [Edith] showed findings which are indeterminate. It is recommended that the patient have a physician-supervised mammography at Chilton Memorial Hospital in six months time to ascertain stability in the appearance of the area in question. The patient has been notified of these indeterminate findings and has been advised to call your office.
Dr. Kindzierski wrote a note on the report which said, "Had mobile mammo - Indeterminate - I have no idea what they mean - Have her get films & see Dr. Fletcher for review - exam - He is breast specialist."
On April 6, 1992, Edith, after having received the mammography films from Chilton, turned them over to defendant H. Stephen Fletcher, a surgeon to whom she had been sent by Dr. Kindzierski. Dr. Fletcher asked defendant Lester Kalisher, a radiologist in the St. Barnabas Department of Radiology, to review the films. Dr. Kalisher reviewed the films at defendant St. Barnabas Hospital on April 22, 1992. He indicated in his written report to Dr. Fletcher that there was no definitive evidence of malignancy. More specifically, he reported as follows:
COMMENT: Bilateral mammograms from Chilton Memorial Hospital, mobile mammography unit, is presented for interpretation. It is dated 2/14/92. A left and right mediolateral oblique and craniocaudal view are submitted for interpretation. There is fatty replacement with minimal fibroglandular tissue noted. No dominant mass or clustered microcalcifications are seen. Two small 5 mm. in diameter benign appearing nodules are seen, one in the supramedial and one in the supralateral aspect of the left breast. No clustered microcalcifications or architectural distortions are seen. A benign calcification is seen in the supramedial aspect of the right breast. Several small benign appearing calcifications are seen in the lateral aspect of the left breast. There appears to be slight unsharpness in the calcifications possibly due to technical reasons. Comparison with the old mammograms from St. Barnabas Medical Center dated 6/16/85 would be helpful. They were signed out by the patient on 8/27/85 and have not been returned. The skin, nipples and visualized axillae are normal.
ConclusionS: FATTY REPLACEMENT WITH MINIMAL RESIDUAL PARENCHYMA. BENIGN APPEARING CALCIFICATIONS IN BOTH BREASTS. TWO 5 MM. BENIGN APPEARING NODULES IN THE LEFT BREAST WHICH PROBABLY REPRESENT SMALL RESIDUAL CYSTS, POSSIBLY APOCRINE CYSTS. ULTRASOUND WOULD NOT BE HELPFUL IN LESIONS OF THIS SIZE. COMPARISON WITH OLD FILMS WOULD BE HELPFUL.
Dr. Kalisher testified that in the normal course he would have returned the films to the St. Barnabas radiology department which would then have forwarded the films to either Chilton or Dr. Fletcher.
On July 28, 1993, another mammogram, taken at Overlook Hospital, revealed a poorly defined mass with calcifications suggestive of cancer. Dr. Fletcher reviewed this mammogram and on August 2, 1993, wrote to Dr. Kindzierski, stating the following:
[Edith] recently had a mammogram which showed what may be a poorly defined density in the left breast near the chest wall in an area that has some benign calcifications. This appears to be a new finding but this is difficult to tell since her last few mammograms have all been done at different centers. Her examination is negative. I showed the films to Lester Kalisher and he can't tell if this represents anything. At his suggestion the films will be repeated at SBMC. I'll let you know the results.
Dr. Kalisher acknowledges that he may have seen and briefly reviewed the July 28, 1993, mammography films, and that he may have recommended additional mammography "to obtain visualization in two projections." He ...