Before Judges Long, Wefing and Carchman
The opinion of the court was delivered by: Long, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January l2, l999
On appeal from Superior Court of New Jersey, Law Division, Cape May County.
By our leave, defendants Howard Goldstein, M.D., Neil Phillips, M.D. and the Urological Professional Association appeal from the denial of their motion to dismiss the medical malpractice complaint filed against them by plaintiff Anna Gallagher. *fn1 We affirm.
The facts necessary for Disposition of this appeal are as follows. On May 19, 1994, Mrs. Gallagher, a fifty-year old insulin dependent diabetic, underwent a Marshall-Marchetti-Krantz *fn2 surgical procedure, performed by defendants Dr. Alexander Pagnani and Dr. Gene Braga at defendant Burdette-Tomlin Memorial Hospital.
Immediately after surgery, Mrs. Gallagher experienced serious complications including a significant loss of blood which collected in her abdomen. The day after her discharge from the hospital, blood began to leak from Mrs. Gallagher's stitches. She immediately went to see Dr. Pagnani who diagnosed her with a "hematoma" with a "draining sinus." Two days later, because Mrs. Gallagher was still bleeding and experiencing fever and chills, she went to the Emergency Room. The Emergency Room doctor, Dr. W. Weisberg, contacted Dr. Pagnani, who directed that Mrs. Gallagher be discharged. During the next three months, Mrs. Gallagher saw Dr. Pagnani multiple times in his office with no improvement.
In July of l994, Mrs. Gallagher advised Drs. Pagnani and Braga that she was experiencing pain and having difficulty walking. Dr. Pagnani gave Mrs. Gallagher pain medication, diagnosed "acute lower back syndrome," and directed that Mrs. Gallagher see an orthopedic specialist. The specialist performed a CAT-scan of the lumbar spine and ruled out Mrs. Gallagher's back as the source of her pain.
In late August of l994, when she had experienced no improvement, Mrs. Gallagher contacted her long-time family doctors defendants Robert J. Maro and his partner Mark J. Todt. Dr. Todt admitted her to West Jersey Hospital and ordered, among other things, a consultation with a urology team consisting of defendants Phillips and Goldstein. Drs. Todt, Phillips and Goldstein ordered several tests, including a CAT-scan of Mrs. Gallagher's abdomen and pelvis. The CAT-scan was performed on August 23, and read by defendant Dr. Robert Steeb on August 24, 1994. Dr. Steeb concluded in his report:
There is abnormal soft tissue density extending from the lower abdominal wall near the rectus muscle area and extending interiorly to an area just anterior to the urinary bladder. There may also be some thickening of the anterior wall of the urinary bladder. There is some associated destructive changes involving the superior pubic ramus on the right side. Since the patient had previous surgery, this most likely represents inflammatory process with associated osteomyelitis of the pubic bone. Clinical correlation is recommended.
Likewise, Drs. Goldstein and Phillips noted that the CAT-scan illustrated "erosion of the pubic symphysis" and diagnosed "osteitis pubis." Mrs. Gallagher was discharged from West Jersey, and placed on a steroid drug.
During the next few weeks, Mrs. Gallagher's pain increased and walking became more arduous. On September 7, 1994, Drs. Goldstein and Phillips re-admitted her to West Jersey, noting on her chart that she suffered from "perineal abscess, osteitis pubis, Status Post complicated Marshall-Marchetti-Krantz procedure." Another CAT-scan was performed and this time was interpreted by Dr. Samuel (an associate of Dr. Steeb) and defendant South Jersey Radiology Associates. Their report stated, in relevant part:
A large abscess collection is seen just anterior to the urinary bladder extending superiorly involving the recti muscles . . . . Since the last examination, there appears to be a worsening of the abscess, which appears larger in size with gas now within it. The abscess is now extended into the labium.
After this report, Drs. Goldstein and Phillips performed a supra-pubic exploration and drainage of the entire abscess area. Cultures of the drained material revealed three different types of bacteria; Drs. Goldstein and Phillips prescribed six weeks of antibiotic therapy. On Mrs. Gallagher's medical charts, Drs. Goldstein and Phillips listed "supra pubic abscess" and "osteitis pubis" as the ailments being treated during her re-admittance to West Jersey. Mrs. Gallagher's discharge diagnosis was identified by Drs. Goldstein and Phillips as "Pelvic, Perivesical and Labial Abscess."
Mrs. Gallagher now suffers from, among other things, total incontinence and has been receiving continuous treatment from Drs. Goldstein and Phillips. Since January of 1995, these physicians have performed five surgical procedures in which collagen is injected in Mrs. Gallagher's urethra in an attempt to restore continence.
On May 23, 1995, Mrs. Gallagher filed a lawsuit against Drs. Pagnani and Braga, Pagnani-Braga Urologic Associates, Burdette-Tomlin, and several fictitious defendants, identified as John Doe, Dr. John Doe, and John Doe Associates. On October 20, 1995, Mrs. Gallagher amended her complaint to add as defendants Dr. Steeb and West Jersey Hospital. On April 26, 1996, a second amended complaint was filed to name as additional defendants South Jersey Radiology Associates, Dr. W. Weisberg, and Cape Emergency Physicians.
During the course of the litigation, Mrs. Gallagher produced expert reports from Dr. Howard B. Simon, a board-certified urologist (dated September 5, 1995) and Dr. Seymour Piwoz, a board- certified radiologist (dated February 15, 1996). Dr. Simon concluded, among other things, that Drs. Pagnani and Braga were negligent in their care and treatment of Mrs. Gallagher by failing to take any action whatsoever with respect to a large blood clot that developed in Mrs. Gallagher's abdomen, which caused fluid to drain from her incision for over two months and developed into an abscess. Dr. Simon also found that Drs. Pagnani and Braga, as well as Dr. Weisberg, the emergency room physician, deviated from acceptable standards of care when they failed to culture the drainage from Mrs. Gallagher's incisions during their contacts with her, and failed to perform an ultrasound to evaluate the size or location of the blood clot. According to Dr. Simon, these deviations caused an infection to develop in Mrs. Gallagher's abdomen that went undiagnosed and grew into an abdominal abscess that continued to spread and to cause Mrs. Gallagher to sustain permanent injuries. Dr. Simon also opined that Dr. Steeb failed to diagnose the presence of an abscess on a CAT-scan dated August 23, l994, and the resulting two-week delay before the correct diagnosis was made further contributed to Mrs. Gallagher's problems.
Likewise, Mrs. Gallagher's radiology expert Dr. Seymour Piwoz found that Dr. Steeb failed to diagnose the presence of an abscess on the August 23, l994, CAT-scan, which was a deviation from the standard of care. Dr. Piwoz found that Dr. Steeb's report failed to comply with acceptable radiologic standards in a variety of ways, including but not limited to, the failure to list the most likely differential diagnoses that were attributable to the abnormalities described in the CAT-scan. These included an abdominal abscess. Dr. Piwoz concluded that Dr. Steeb's failure to identify an abscess in the radiology report he prepared caused Mrs. Gallagher's attending physicians, who relied on that report, to be misled.
Dr. Steeb presented an expert report by Jill E. Jacobs, M.D., dated February 7, l997. Dr. Jacobs asserted that Dr. Steeb rendered an accurate radiological report of Mrs. Gallagher's CAT-scan and conformed to the appropriate standard of care.
In October of l997, Dr. Jacobs was deposed. During her testimony, Dr. Jacobs suggested, for the first time, malpractice (untreated osteomyelitis) on the part of Drs. Goldstein and Phillips, the physicians who had been treating Mrs. Gallagher for the complications of her surgery. No expert up to that point had expressed any criticism or concern or raised any issue of malpractice against Drs. Goldstein and Phillips or their group.
In December of l997, Mrs. Gallagher was granted leave to amend her complaint to name Drs. Goldstein and Phillips. The doctors, in turn, moved to dismiss the complaint based on the statute of limitations and the misuse of R. 4:26-4, the fictitious pleading rule. The trial Judge denied the motion and allowed Mrs. Gallagher to invoke the discovery rule as a result of Dr. Jacob's belated opinion.
Defendants appeal, contending that R. 4:26-4 did not "save" Mrs. Gallagher's filing after the statute of limitations had run and that Mrs. Gallagher could not rely on the "discovery rule" because the opinion of Dr. Jacobs, an expert witness, did not constitute ...