The Appellate Division affirms trial court grant of summary judgment as to three defendants, declining to adopt plaintiff's argument that a prima facie case of medical negligence was established based upon the "totality of the evidence."

The plaintiff filed this medical negligence action against three defendants, Dr. Dalton (emergency room physician), Dr. Wold (radiologist) and Riverview Medical Center ("RMC"), concerning care and treatment rendered in 2005 resulting in an alleged failure to diagnose and advise the plaintiff of left ureteral stone. The plaintiff presented to RMC on March 25, 2005, with complaints of lower back pain. He was seen by Dr. Dalton, who diagnosed the plaintiff a back strain. He was prescribed pain medication, discharged from the hospital and advised to follow up with his primary care physician. X-rays ordered during this admission were interpreted by Dr. Wold, who noted, among other things, a 1.4 centimeter stone or calculus in the plaintiff's left abdomen. The plaintiff did not follow up with his primary care physician and again presented to RMC emergency department in August 2005 with complaints of urinary frequency and burning and irregular heart beat. He was diagnosed with urosepsis and septic shock caused by the impaction of the stone on the left ureter. The plaintiff served the reports of three experts, Dr. Saypol (urologist), Dr. Berg (radiologist) and Dr. Melnick (emergency room medicine). Dr. Berg opined that it was Dr. Dalton's responsibility to ensure he had the official radiology report and take appropriate action. Dr. Wold then successfully moved for summary judgment arguing that the plaintiff's radiology expert had only opined that the emergency room physician deviated from the standard of care and there was no evidence that the x-ray was misread. Dr. Melnick opined during deposition that once the existence of a possibly very large ureteral stone was known, the responsibility devolved to Dr. Wold to make that finding known. Thus, no deviation was alleged as to Dr. Dalton. Dr. Dalton then also successfully moved for summary judgment, with the trial judge finding "there was no evidence that Dalton did anything wrong." Finally, RMC moved for summary judgment arguing inter alia that because the only claims asserted against them were vicarious in nature, the dismissal of the agents warranted a dismissal as to the principal as a matter of law. The trial judge originally denied this motion but subsequently granted the motion for reconsideration. On Appeal, the panel affirmed the three dismissals, relying on well-settled principals of medical negligence law. Specifically, N.J.S.A. 2A:53A-41(a), which requires expert testimony be given by an expert of the same specialty as the treating defendant. As applied here, Dr. Berg (radiology) was barred from opining as to alleged deviations of Dr. Dalton (emergency medicine) and Dr. Melnick (emergency medicine) could not offer testimony as to treatment of Dr. Wold (radiology). In this regard, the panel rejected the plaintiff's argument that he had proven a prima facie case of negligence based on the "totality of the evidence." The panel also affirmed the dismissal as to RMC, noting no direct claim was asserted against the entity and as such, they were entitled to the relief sought upon the dismissal of their agents, Drs. Dalton and Wold.

Case Law Alert - 3rd Qtr 2011