The opinion of the court was delivered by: LaVECCHIA, J.
On appeal from the Superior Court, Law Division, Monmouth County.
This is another appeal concerning the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. The issue again is whether plaintiff's case must be dismissed for failure to timely file an affidavit of merit setting forth an expert's sworn statement that there is a reasonable probability that the defendant's conduct deviated from acceptable standards of professional due care. N.J.S.A. 2A:53A-27.
Decedent Lisa Fink became seriously ill in late August 1996. Her symptoms included headaches associated with virus and accompanying fever. She experienced neck pain, unsteadiness, and weakness in her legs. Over a short period of time she became increasingly confused. On August 28, 1996, she was advised in a telephone conversation with her primary care physician, Dr. Audrey Sutton-Surak, to take Motrin. That advice was supplementary to that previously given by Dr. Sutton-Surak's medical associate, Dr. Thompson.
The next morning, August 29, 1996, Fink had to be physically assisted by her husband to her office visit with Dr. Sutton- Surak. Dr. Sutton-Surak consulted with a neurologist and immediately sent Fink to Riverview Hospital. At 5:00 p.m. on that day, Dr. Sutton-Surak visited Fink at the Riverview Hospital emergency room and observed her sitting up in a wheelchair, alert and oriented. While at the hospital, Fink came under the care of a neurologist, Dr. Anayiotes, who recommended that an MRI be performed, and accordingly she was admitted to the hospital.
On August 30 at 10:00 a.m., Dr. Sutton-Surak again saw Fink at the hospital and this time described her as in a "confused" state. Sutton-Surak was informed that the neurologist intended to perform a spinal tap on Fink that day. In addition, Dr. Anayiotes ordered ampicillin in dosages administered at 2:00 p.m., 6:00 p.m., and 10:00 p.m. According to Sutton-Surak, Dr. Anayiotes suspected that Fink might have listeria meningitis (listeria), although Fink did not fit the typical profile of a patient likely to have listeria. Ampicillin is the drug of choice to treat listeria.
As Fink's condition worsened, Dr. Sutton-Surak determined that it would be best to transfer her to Robert Wood Johnson University Hospital (Robert Wood Johnson). According to Sutton- Surak, she spoke with Dr. Michael Nolledo, a resident at Robert Wood Johnson, concerning the patient transfer and related the following information: that Fink's spinal tap fluid was not clear and that the neurologist at Riverview Hospital suspected listeria and prescribed ampicillin. She recalled the resident saying he would speak to his attending physician and call her back to advise if the hospital would accept a transfer of the patient. According to Sutton-Surak, Nolledo called back at approximately 6:00 p.m. on August 30th and advised her that his attending physician, Dr. Strobel, authorized Fink's transfer. Fink arrived at Robert Wood Johnson at approximately 11:00 p.m. that night.
Whether that conversation occurred is among the many disputed facts in this record, because Dr. Nolledo in his deposition testified that he did not recall participating in a conversation with Dr. Sutton-Surak on August 30. He stated that he believed his attending physician, Dr. Strobel, talked directly to Dr. Sutton-Surak and that he, Nolledo, learned about Fink's condition after Dr. Strobel had accepted the transfer. Nolledo further testified that he recalled Strobel telling him that Fink was diagnosed with some form of meningitis, but Nolledo had no recollection that there was an indication of listeria.
Dr. Strobel similarly stated in his deposition that it was he who spoke to a "female doctor" regarding plaintiff's transfer to Robert Wood Johnson from Riverview. He said that in that conversation he was not told of listeria, but only that Fink suffered from some form of meningitis. Although he did not recall a discussion about a prescription for ampicillin, Dr. Strobel admitted that it was his habit to ask about all medications a patient was taking when a patient was seeking transfer into Robert Wood Johnson.
Following Fink's arrival at Robert Wood Johnson, Dr. Strobel, the attending physician who was at home on call that night, was telephoned at approximately midnight. Dr. Nolledo "presented" the patient to him telephonically. That presentation included a report from an infectious disease resident, Dr. Solanki, who examined Fink upon her arrival. Strobel asked during the presentation about evidence of increased intracrannial pressure. He stated that he was told that Fink's optic discs were flat and that her neurologic exam was not abnormal.
Fink's medical records reveal that there is an unsigned entry indicating a decision at 1:30 a.m. to order ampicillin for Fink. A second unsigned entry at 1:37 a.m. canceled the ampicillin. The authorship of those unsigned orders in Fink's medical records was the source of confusion for a considerable time during this litigation. It was revealed later in Dr. Strobel's deposition, after he had been dismissed from the action, that he had directed Nolledo to stop the ampicillin, but to obtain first an infectious-disease consultation. Strobel stated that he presumed that the ampicillin was stopped pursuant to the 1:37 a.m. medical records entry because the infectious disease resident with whom Nolledo consulted agreed with that course of action.
At 9:35 a.m. on August 31, while at the hospital, Dr. Strobel received a call from the Riverview Hospital laboratory informing him of the results of Fink's spinal fluid testing. The results indicated listeria. According to entries in Fink's medical records, Dr. Strobel promptly ordered the recommencement of ampicillin, but Fink already had begun to have cardiac problems, and her brain stem herniated. She passed away later that day. Plaintiff's expert concluded that Fink "died of listeria meningitis and increased intracrannial pressure." Plaintiff's pre-suit expert report contained a detailed explanation of the negligence of each of the doctors who cared for Fink prior to her transfer to Robert Wood Johnson, as well as a description of Riverview Hospital's negligence. The report referred in two respects to the institutional negligence of Robert Wood Johnson, without attempting to differentiate concerning theories of negligence by unnamed residents and what they did and did not do and what they did or did not discuss with their attending physician. The attending physician was not identified in that paragraph by name but was mentioned earlier as Dr. Strobel. It provided in part:
Negligence: Robert Wood Johnson Hospital
Prior to transfer to Robert Wood Johnson Hospital after analyzing the spinal fluid, [the neurologist] concluded in a progress note that even though Ms. Fink was not immunocompromised, she could still have listeria infection. The resident physicians admitting Ms. Fink to Robert Wood Johnson Hospital knew or should have discussed with their attending that listeria meningitis requires Ampicillin. If the resident physicians were aware of [the neurologist's] opinion, then their failure to continue Ampicillin without justification constituted a breach of the standard of care. If they were unaware of [the neurologist's] opinion because his opinion was not included in the transfer, they had a duty to determine why she was on Ampicillin before stopping it and the failure to do so constituted a breach of the standard of care.
When Ms. Fink suffered a bout of ventricular tachycardia at about 5:00 a.m. on August 31, 1996, the doctors had a duty to determine why she suffered this arrhythmia. Included in the differential diagnosis was sepsis, brainstem inflammation and ischemia, and increased intracrannial pressure from hydrocephalus and edema. The failure to consult a neurologist or a neurosurgeon or to perform a CT scan immediately after reestablishing a normal cardiac rhythm constituted a breach of the standard of due care.
Fink's husband, as executor of her estate, filed suit against Riverview, the pre-Robert Wood Johnson doctors, Thompson, Liegner, Anayiotes, and Sutton-Surak, Robert Wood Johnson, its attending physician Strobel, and unnamed physicians and employees of Robert Wood Johnson. A timely affidavit of merit was filed by plaintiff on August 14, 1998, listing by name the pre-Robert Wood Johnson doctors who cared for plaintiff, and unknown physicians of Riverview and Robert Wood Johnson. Strobel was not specifically identified in the cursory opinion contained in the affidavit provided by the same expert who provided the detailed pre-suit ...