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John Cifaretto and Judith Cifaretto, His Wife v. Mark J.K. Dalton

March 11, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-476-07.

Per curiam.


Argued November 30, 2010 -

Before Judges Graves and Messano.

Plaintiffs John and Judith Cifaretto appeal from the grants of summary judgment to defendants Mark J.K. Dalton, M.D. (Dalton), Robert E. Wold, M.D. (Wold), and Riverview Medical Center (Riverview).*fn1 Plaintiff contends that the motion judges erred because he had established a prima facie case of medical negligence based upon the totality of the evidence in the motion record. Having considered this argument in light of applicable legal standards, we affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). In conducting our review of the motion record, we accord plaintiff the benefit of all the favorable evidence and inferences. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 230.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. [Brill, supra, 142 N.J. at 540 (second alteration in original) (quotations omitted).]

We then decide "whether the motion judge's application of the law was correct." Atlantic Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).


From the motion record and the parties' briefs, we discern that on March 25, 2005, at approximately 9:00 a.m., plaintiff presented to Riverview's emergency department with complaints of lower back pain. He was first examined by Dalton, an emergency room physician. Plaintiff told Dalton that he had "jerked [his] lumbar area" in a "sli[p]/fall" four days earlier. Dalton ordered a lumbar spine x-ray, which Dalton subsequently read as revealing disc narrowing between the fourth and fifth lumbar vertebrae. Dalton diagnosed plaintiff with a back strain, prescribed pain medication and discharged him from the hospital with instructions to follow up with his primary care physician, Dr. Denoia.

Plaintiff's x-rays were also forwarded to the radiology department, where they were interpreted by Wold, a radiologist. In his report, transcribed at 3:00 a.m. the following day, March 26, Wold noted in addition to the disc narrowing, a 1.4-centimeter stone, or "calculus," in plaintiff's left abdomen. Wold's report further indicated that the calculus "could represent a calcified lymph node although a ureteral stone cannot be clearly excluded." It is undisputed that when plaintiff was discharged on March 25, or at anytime thereafter, the information regarding the presence of the calculus was not transmitted to him or to Dr. Denoia. Discovery revealed that the radiology report was in plaintiff's medical file at Riverview, but it is unclear who placed it in the file and when.

Plaintiff apparently did not follow up with Dr. Denoia. Several months later, in August 2005, plaintiff was admitted to Riverview's emergency department with complaints of urinary frequency and burning, and an irregular heartbeat. Plaintiff was diagnosed with urosepsis and septic shock caused by the impaction of a stone in his left ureter. After several unsuccessful treatments at Riverview, doctors at Morristown Memorial Hospital removed the stone on March 8, 2006. Nevertheless, plaintiff allegedly suffered permanent renal damage from the impaction.

On January 29, 2007, plaintiff filed his complaint against Dalton, Wold, and Riverview alleging that they deviated from appropriate standards of care by failing to inform him of the stone. Plaintiffs produced expert reports from David C. Saypol, M.D., M.S., F.A.C.S., a urologist, dated December 26, 2006; Roger A. Berg, M.D., F.A.C.R., a radiologist, dated April 3, 2007; and Gerald J. Melnick, M.D., an emergency medicine physician, dated January 9, 2008.

On January 10, 2008, Wold moved for summary judgment. In support of his motion, Wold attached the reports of Saypol and Berg. Saypol opined that Dalton deviated from medical standards by not "appris[ing] [plaintiff] of the large calcification identified on the x-ray," and "this breakdown in communication deprived [plaintiff] of an opportunity to undergo elective removal of his left ureteral calculus," which was a proximate cause of his ultimate injury. Berg asserted that "[i]t was not required that . . . Wold or the Radiology Department telephone . . . Dalton with the Xray findings." Moreover, "[i]f Dr. Dalton undertook to interpret[] the lumbar spine X-rays by himself and not read the radiology report, it was a deviation to miss the left ureteral stone." Accordingly, Berg concluded that "[i]t was . . . Dalton's responsibility to ensure that he had the official radiology report and take appropriate action" and that "[Dalton's] failure to do that was a deviation from accepted standards."

Plaintiff, Dalton, and Riverview objected to Wold's motion, claiming it was premature because there had been no discovery as to Riverview's policy regarding communication between the radiology and emergency departments. The judge, however, granted the motion reasoning:

I would agree that the motion was premature if there was anything at all to suggest some liability on the part of . . . Wold. Here, though, every single shred of evidence indicates exactly the opposite. He read the x-ray correctly. He wrote the report correctly. He was under no duty to convey it to the patient. There may even be ethics prohibiting him from communicating it directly to the patient. As far as anyone can tell, including the experts, he did everything exactly properly.

I have no problem with the usual, well wait [until] discovery i[s] over before you do that, but that's only where [there is] something to suggest it. If we have to wait [until] discovery is over for everybody, we may as well join the triage nurse, we may as well join the Director of . . . Medical Practice in the hospital. There has to be something to suggest that this person did something wrong and here there's absolutely nothing.

The judge entered an order dated February 15, 2008, dismissing the complaint as to Wold, but ordering that he "may be produced as ...

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