Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Union County.
Plaintiffs appeal from the trial court's order dismissing their complaint with prejudice for failure to file a timely affidavit of merit. N.J.S.A. 2A:53A-27. After a careful review of the record and consideration of the arguments advanced on appeal, we affirm.
Plaintiffs filed their complaint on February 11, 1998; they alleged negligence in the care and treatment rendered to Carolyn Davies by Dr. Joseph Imbesi, Dr. Joseph Sirota, Dr. Thomas Helbig, Multi-Care Health Center and St. Barnabas OutPatient Center. Ms. Davies was experiencing pain in her lower right leg and, on December 4, 1995, was examined by Dr. Imbesi at Multi-Care. He noted swelling in the area of her ankle and foot, and diagnosed a "muscle pull of calf." He told her to take Aleve for her pain. He included a notation in his records that no x-ray was required.
Ms. Davies' pain persisted and she returned to Multi-Care on February 18, 1996 and was examined by Dr. Sirota. He ordered that two x-rays be taken and they were sent to Cranford Diagnostic Imaging (Cranford Diagnostic) for interpretation. Dr. Bernard J. Beute of Cranford Diagnostic prepared a report dated that same day in which he noted the presence of a four centimeter lytic lesion on the right tibia. According to Dr. Beute, Differential diagnostic considerations should include both neoplastic and infectious processes. A localized focus of osteomyelitis could appear this way. Bone neoplasms, such as osteosarcoma, Ewing sarcoma, or adamantinoma, could have this plain film appearance. Often, the narrowing of the differential diagnoses in these cases requires a multimodality approach. Typically, bone scan, MRI, and thin-section CT scan of the affected area is performed.
Orthopedic consultation is recommended.
Ten days later, Ms. Davies had an orthopedic consultation with Dr. Helbig at Multi-Care. Dr. Helbig made the following note:
There is indeed a lytic process in the right tibia that could be consistent with neoplasia or an infectious process. Therefore, proceed with the MRI scan quickly. If it is positive, appropriate referral may be necessary.
Ms. Davies had an MRI performed on March 5, 1996 at Cranford Diagnostic. Dr. Beute reported that same day to Dr. Helbig that the films:
suggest some form of surface osteosarcoma . . . . Its fairly well circumscribed soft tissue component suggests that it has been present for some time and it may actually represent a less aggressive neoplasm than an osteosarcoma . . . . Clearly, a biopsy is indicated for tissue diagnostic purposes.
A biopsy was performed at University Hospital on March 8, 1996 which revealed "malignant neoplasms, consistent with Ewing's sarcoma." On March 27, 1996, Ms. Davies' right leg was amputated below the knee.
Within their complaint filed on February 11, 1998, plaintiffs alleged that Dr. Imbesi was negligent in failing to order x-rays or schedule a follow-up visit; that Dr. Sirota was negligent in delaying ten days in scheduling an orthopedic consultation; and that Dr. Helbig was ...