The opinion of the court was delivered by: Long, J.
ON APPEAL FROM Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
On appeal from the Superior Court, Law Division, Essex County.
We are called upon once more to evaluate the sufficiency of a plaintiff's conduct in attempting to satisfy the Affidavit of Merit statute. N.J.S.A. 2A:53A-27.
On December 26, 1995, eighty-year-old Vivian Galik slipped and fell in her kitchen, striking the back of her head and her neck on a radiator. She was taken to the Emergency Department of Clara Maass Medical Center, and later admitted. Galik was treated at Clara Maass by Dr. Robert Acosta (radiologist), Dr. Matthew DeLuca (neurologist), Dr. Edwin Gangemi (physiatrist), Dr. David Greifinger (orthopaedist), and Dr. Keshavmurthy Shivashankar (primary care/internist). During the weeks she spent at the Hospital, Galik progressively lost function in her limbs. She was discharged on January 31, 1996 "virtually quadriplegic [and] requiring total care." On February 23, 1996, Galik was admitted to Mountainside Hospital where she was diagnosed with a fractured cervical spine. She died of pneumonia and respiratory arrest on February 29, 1996.
Galik's daughter, Simone, the executrix of her estate, retained an attorney to investigate the possibility of instituting a malpractice action in connection with her mother's death. The attorney, in turn, provided Mrs. Galik's records to a Board Certified Neurosurgeon, Dr. Francis. J. Pizzi. Pizzi prepared a report for the lawyer on November 11, 1996 that stated:
It is my considered medical opinion that there was a substantial deviation from the standard of medical care given to this patient at the Clara Maass Medical Center. The correct diagnosis at that time was fractured cervical spine with instability. The x-rays of the cervical spine taken were only two views. Flexion/extension x-rays were not taken to see if there was an unstable spine to account for her neurological picture. In that the clinical presentation was suggestive of a brachial plexus injury this oversight (not taking flexion/extension views) may be excusable. An MRI scan of the cervical spine was ordered on 1/5 but not performed until 1/6. This, by my review as well as in the radiologist's report, shows a subluxation of C5 on C6 with a severe compromise of the spinal canal at that level. This study has motion artifact but still is very suggestive of dislocation. This very worrisome finding went unrecognized by all the physicians caring for her. On 1/11/96 she began showing signs of progression of her spinal cord injury when she required straight catheterization for her urine and then the installation of an indwelling Foley catheter. Both the neurologist and the orthopaedist found that her neurological status had changed with her unable to move her legs and her upper extremity. This is documented also by the Rehabilitation Department where the motor power in both lower extremities is zero over five and in the upper extremities proximal motions are one out of five on the right, two out of five on the left and zero out of five in the more distal arm muscles. Despite this dramatic change in status still no one has put this together with the subluxation seen at the C5-C6 level on the MRI scan done two days before she became quadriplegic. This is inexcusable.
When the MRI report and films became available on 1/6/96 the patient was still neurologically quite viable and had she been evaluated and treated appropriately then she would not have become essentially quadriplegic and helpless, which condition led to her demise. Upon getting the results of the MRI scan a repeat MRI with sedation to minimize the motion artifact was an option as was a cervical spine series with lateral flexion and extension views or a CT scan of the cervical spine. This would have identified the dislocation and unstable spine at the C5-C6 level. Appropriate treatment to stabilize her spine would have prevented her subsequent spinal cord damage which led to her severe quadriparesis and death.
In a supplemental report dated March 12, 1997, Dr. Pizzi added particularized allegations against Doctors DeLuca, Greifinger and Shivashankar by name:
I carefully reviewed the Clara Maass Medical Center records on the above mentioned patient once again.
Once again, I do feel that there was substantial deviation from the standard of care in the treatment of this patient.
Her attending physician, Dr. K. Shiva[shankar], failed to recognize that this patient had a cerival fracture dislocation and as a result of her lack of treatment for this she became quadriplegic during her hospital stay and subsequently died as a result of complications that elderly quadriplegics get. An MRI scan was ordered by the neurologist on l/5 but, according to the MRI report, the transcription was not done until 1/9. On 1/10 Dr. Shiva[shankar] wrote an order to "get results of MRI scan." The report clearly states that there is fracture dislocation at the C5-C6 level but the study is limited. There is no indication in the records that Dr. Shiva[shankar] did in fact get the results of the MRI scan and acknowledge that there was an abnormality which required treatment.
Dr. DeLuca, the neurologist, ordered the MRI scan of the cervical spine yet did not follow through on obtaining the results and recommending appropriate treatment for this. The findings on the MRI scan more than accounted for the patient's symptoms of pain in her neck and findings on examination of weakness of her right extremity, all occurring as a result of head and neck trauma in an elderly person.
Dr. Greifinger, the orthopaedist, also in his notes indicated that he would be interested to see the results of the MRI scan of her cervical spine yet no follow-up on his part was done to get the results of the MRI scan so that appropriate treatment could be rendered for her fracture dislocation.
The Progressive Imaging Center did perform an MRI scan on 1/5/96. The report was transcribed on 1/9/96 and I presume transferred to the hospital on 1/10/96 at the request of Dr. Shiva[shankar]. The four day gap in transcribing this report and getting the information to the hospital is a substantial deviation in a patient with neck trauma with neurological deficit who has an abnormal cervical spine examination. Dr. Fusco,*fn1 the radiologist who read the study at some time between 1/5/96 and 1/9/96 when it was transcribed, deviated from the standard of care in not verbally reporting by telephone to either the attending physician or the consultants that there was a fracture dislocation at the C5-C6 level in a patient who was suspected of having a cervical spine injury.
By letter dated July 29, 1997, plaintiff's counsel forwarded Dr. Pizzi's reports to Princeton Insurance Company, the carrier for Doctors Gangemi and Greifinger, and Medical Inter-Insurance Exchange of N.J., the carrier for Doctors Acosta, DeLuca and Shivashankar, simultaneously advising the carriers of his client's demand for a "global settlement" for Mrs. Galik's "conscious pain and suffering" and "premature, untimely wrongful death." The July 29, 1997 letter specifically names all five of the physicians who treated Mrs. Galik:
Enclosed herewith you will please find the report of Dr. Francis Pizzi, neurosurgeon, dated November 11, 1996.
Dr. Pizzi discusses the medical negligence of Dr. Acosta (radiologist) Dr. Shivashankar (primary physician) Dr. DeLuca (neurologist) Dr. Greifinger (orthopaedist) and Dr. Gangemi (physiatrist).
In the opinion of Dr. Pizzi, Ms. Galik died based upon the failure of each specialist to diagnose the subluxations of the cervical, vertebral unstable spine resulting in the spinal cord lesion quadraplegia [sic] and death. [Emphasis added.]
Again on October 8, 1997, plaintiff's counsel notified the insurance carriers by letter of plaintiff's intent to file suit "unless this matter is amicably resolved by October 23, 1997" and again enclosed a copy of Dr. Pizzi's March 12 report.
Efforts to settle the case were unsuccessful and on November 19, 1997, plaintiff, Simone Galik, individually and as executrix of the estate of her mother, filed a malpractice action against Drs. Acosta, DeLuca, Gangemi, Greifinger and Shivashankar, the hospital and a number of John Doe defendants, alleging malpractice. Doctors DeLuca and Greifinger answered on January 13, 1998, Dr. Acosta on January 26, 1998, Dr. Gangemi on March 10, 1998, and Dr. Shivashankar on March 23, 1998. Drs. Acosta, DeLuca, Gangemi and ...