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Sinclair v. Roth

November 27, 2002

ESTHER A. SINCLAIR, AS EXECUTRIX OF THE ESTATE OF WILLIAM A. SINCLAIR AND ESTHER A. SINCLAIR, AS EXECUTRIX AD PROSEQUENDUM ON BEHALF OF THE HEIRS OF WILLIAM A. SINCLAIR, PLAINTIFF-APPELLANT,
v.
STEVEN B. ROTH, M.D., DEFENDANT-RESPONDENT, AND FRANCIS BOTTONE, M.D., ROXBURY FAMILY PRACTICE, JOHN DOE, M.D. 1-50, JANE DOE, M.D. 1-50, JOHN DOE, R.N. 1-50, JANE DOE, R.N. 1-50, JOHN DOE, 1-50, JANE DOE 1-50, JOHN DOE, CORP. 1-50 (FICTITIOUS NAMES), DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 837-97.

Before Judges Stern, Collester and Alley.

The opinion of the court was delivered by: Stern, P.J.A.D.

As amended January 3, 2003.

ESTHER A. SINCLAIR, AS EXECUTRIX OF THE ESTATE OF WILLIAM A. SINCLAIR AND ESTHER A. SINCLAIR, AS EXECUTRIX AD PROSEQUENDUM ON BEHALF OF THE HEIRS OF WILLIAM A. SINCLAIR, PLAINTIFF-APPELLANT,
v.
STEVEN B. ROTH, M.D., DEFENDANT-RESPONDENT, AND FRANCIS BOTTONE, M.D., ROXBURY FAMILY PRACTICE, JOHN DOE, M.D. 1-50, JANE DOE, M.D. 1-50, JOHN DOE, R.N. 1-50, JANE DOE, R.N. 1-50, JOHN DOE, 1-50, JANE DOE 1-50, JOHN DOE, CORP. 1-50 (FICTITIOUS NAMES), DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 837-97.

E. Drew Britcher argued the cause for appellant (Britcher, Leone & Roth, attorneys; Mr. Britcher, of counsel; Jessica Choper, on the brief).

Catherine J. Flynn argued the cause for respondent (Tafaro & Flynn, attorneys; Ms. Flynn, of counsel; Leonard S. Rothbard, on the brief).

Before Judges Stern, Collester and Alley.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 8, 2002

Plaintiff appeals from a judgment based on a verdict of no cause for action in a medical malpractice case. Plaintiff also appeals from the denial of her motion for new trial. The case deals with a reading by defendant, Dr. Steven Roth, of a stress test and his failure to alert plaintiff's decedent and referring doctor to the impact of his findings and of his recommendations for treatment. Plaintiff asserts on appeal that the trial judge should have charged that defendant had a duty under Reed v. Bojarski, 166 N.J. 89 (2001), to advise decedent of his findings. Defendant insists that a specialist owes no such duty, that he need not communicate directly with the patient, and that his medical obligation is only to report the test results to the referring physician. Given the issues and testimony developed at the trial, the procedural posture in which the issue of duty to communicate subsequently arose, and footnote one in the Reed opinion, we affirm the judgment.

I.

In February 1995, William A. Sinclair, who was fifty- eight years old at the time, visited Dr. Francis Bottone, his personal physician, complaining of a recent episode of chest pain. Dr. Bottone referred Sinclair to defendant to perform a stress test. The stress test was performed on March 6, 1995, and was interpreted by defendant as being within "normal" limits. Sinclair died on March 17, 1995. Plaintiff attributes his death to defendant's negligence in reading and "respond[ing] to the findings of the stress test."

Defendant testified that decedent was referred to his office only for a stress test in order to "have chest pain evaluated as to whether we could establish the cause." If a patient was referred "for cardiac evaluation," he would "make a recommendation for therapy or further testing," and communicate to the referring doctor "[d]epending on the severity of the problem." When a patient is referred for a specific test, he provides a report of the results to the referring doctor. Defendant described his findings in this case as follows:

Firstly, as previously stated blood pressure was elevated at rest. So I could not personally ascertain whether that was an event of the day or the moment or whether that was a chronic situation. And I point out on this report that his blood pressure was elevated at resting. . . . Secondly, there was a heart murmur that was noted that certainly is necessity stated, at least his, at least knowing about which I had no way of knowing whether he was aware of that. And thirdly, this was the issue of this ...


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