Beadling v. Sirotta

• Decision Date: 02 March 1964
• Docket Number: No. A--63,A--63
• Citation: 197 A.2d 857,41 N.J. 555
• Parties: George BEADLING, Plaintiff-Respondent, v. E. Bernard SIROTTA, Defendant-Appellant, and Samuel M. Langston Company, a New Jersey corporation, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 555

41 N.J. 555

197 A.2d 857

George BEADLING, Plaintiff-Respondent, v. E. Bernard SIROTTA, Defendant-Appellant, and Samuel M. Langston Company, a New Jersey corporation,

Defendant-Appellant.

No. A--63.

Supreme Court of New Jersey.

Argued Jan. 21, 1964.

Decided March 2, 1964.

Sidney P. McCord, Jr., Haddonfield, for defendant-appellant, E. Bernard Sirotta (McCord, Farrell & Eynon, Haddonfield, attorneys).

Charles A. McGeary, Camden, for defendant-appellant, Samuel M. Langston Co. (Bleakly, Stockwell & Zink, Camden, attorneys).

Martin L. Haines, Mount Holley, for plaintiff-respondent (Dimon, Haines & Bunting, Mount Holley, attorneys).

The opinion of the court was delivered by

PROCTOR, J.

The plaintiff, George Beadling, seeks damages from Dr. E. Bernard Sirotta, a radiologist, for injuries and losses sustained as the result of an allegedly negligent diagnosis and report made by the doctor respecting the health of the plaintiff. He also seeks damages from Samuel M. Langston Company on the theory of Respondeat superior, contending that Dr. Sirotta was the agent of Langston in making the diagnosis and report.

This case is before us for the second time. In Beadling v. Sirotta, 39 N.J. 34, 186 A.2d 680 (1962), we vacated an order of the Appellate Division granting leave to the defendants to appeal from the interlocutory order denying their motion for summary judgment (see 71 N.J.Super. 182, 176 A.2d 546 (Law Div.1961)), for the reason that pertinent facts relevant to the legal issues there involved were not set forth in the record. On remand, the trial court, sitting without a jury, found in favor of the plaintiff against both defendants and awarded damages of $4,700. Both defendants appealed, and while the matter was pending in the Appellate Division, we certified it on our own motion. R.R. 1:10--1(a).

The issues raised on this appeal are whether Dr. Sirotta breached a duty owed by him to the plaintiff resulting in plaintiff's losses, and if so, whether defendant Langston is vicariously liable for Dr. Sirotta's negligence. Since we find that negligence by Dr. Sirotta has not been established, both defendants must prevail on this appeal, and it is unnecessary for us to consider the question of vicarious liability.

Plaintiff sought employment on September 15, 1958, as a machinist with the defendant Langston. His technical qualifications were acceptable, and pursuant to the practice of the company, he was asked to take a pre-employment physical examination which included a chest X-ray. He was referred to Dr. Paul T. Milnamow, the plant physician, for the physical examination, and an appointment was made for him with Dr. Sirotta for the following day for the X-ray. Accordingly, on September 16, 1958, Dr. Sirotta at his office took an X-ray of plaintiff's chest. The X-ray was developed while plaintiff waited. Dr. Sirotta, finding some abnormality, asked the plaintiff whether he had ever been in a sanitarium, when he had last had a chest X-ray, and whether he had recently had a chest cold or a history of a chest condition. Plaintiff said he might have had an X-ray in 1955 and that he had never been in a sanitarium and had no history of chest trouble. He then asked the doctor if something was wrong and if it would keep him from getting a job. The doctor answered affirmatively to both questions but did not reveal the nature of the trouble. He told the plaintiff to report back to Langston.

Upon his return to the Langston plant, plaintiff discussed the results of the X-ray with the assistant personnel manager, Stephen Monoky. According to the plaintiff, Monoky told him he had reinfected active tuberculosis and advised him to consult his family physician. Plaintiff nevertheless asked whether there was not some other position he could fill and was told that under the circumstances there was none.

Dr. Sirotta testified that he telephoned the nurse at the Langston plant and, based on his reading of the wet plate, told her that there was a suggestion of reinfection tuberculosis. The nurse testified that she received a telephone call from Dr. Sirotta's office reporting the wet reading of the X-ray as unacceptable since it showed areas which were not normal. She transmitted this information to Monoky, who testified that he told the plaintiff his X-ray showed lesions or shadows which indicated a possibility of tuberculosis and suggested that he see his family doctor to determine whether or not he had the disease.

Dr. Sirotta sent a written report of his radiographic examination of the plaintiff's chest to Dr. Milnamow. The letter, dated September 16, 1958, was received at the Langston plant two or three days later. It contained the following report:

'Radiographic examination of the chest revealed the following:

There is an area of infiltration involving a good portion of the upper right lung representing active reinfection pulmonary tuberculosis. I cannot detect any cavitation at this time. A pleura diaphragmatic adhesion is at the left base. The remaining lung fields are clear. The cardiac silhouette is normal in all respects.

Conclusions: We are dealing with active reinfection pulmonary tuberculosis involving the right lung, minimal in extent.'

Dr. Sirotta testified that a wet film reading is not as accurate as a dry film reading due to technical difficulties, and for that reason he reported to the nurse that on a wet-reading the X-ray showed a 'suggestion' of tuberculosis. The above-quoted report was based on a reading of the dry film.

After his conversation with Monoky on September 16, plaintiff went home and telephoned his family physician, Dr Silpe. Plaintiff, who had been advised by a friend not to rely on a single X-ray report but to get another doctor's opinion, suggested to Dr. Silpe that additional X-rays be taken. Dr Silpe agreed and referred him to Dr. Albert Oppenheimer, a radiologist, who took a series of X-rays of plaintiff's chest the following morning. Dr. Oppenheimer reported to Dr. Silpe that the X-rays revealed 'infiltration of the apical segment of the right upper lobe with small cavity' and recommended that 'infection' (including tuberculosis) be excluded as a cause of the abnormality by bacteriological study, bronchoscopy, and other tests. Dr. Silpe arranged for the hospitalization of the plaintiff, and he was admitted to the hospital for study and treatment under the care of Dr. Hyman Rosenberg on the following day, September 18, 1958, with a referral diagnosis of possible tuberculosis. Dr. Rosenberg examined the X-rays taken by Dr. Oppenheimer and concluded that 'this was a case of tuberculosis until proven otherwise.'

Plaintiff was hospitalized for eleven days, during which period various tests were made. Skin tests for fungus infections, gastric washings, sputum, and smear tests were negative. Other routine tests such as urinalysis, blood count, blood sugar, and blood urea nitrogen were normal. The sedimentation rate was elevated, and a first strength mantoux test was read 'a two plus, first strength.' Dr. Rosenberg described the significance of this result as 'at one time or other this individual had tuberculosis. It is not a sign of necessarily active tuberculosis, but there might be active tuberculosis, or it may have been present in the past.' Plaintiff was discharged after these tests were run and was confined to his home for approximately six weeks to await the results of certain of the tests not immediately available. On discharging the plaintiff, Dr. Rosenberg advised Dr. Silpe that plaintiff was to be treated as tubercular until proven otherwise, and he prescribed drugs used in the treatment of tuberculosis.

On November 15, 1958 Dr. Oppenheimer again X-rayed plaintiff's chest. He testified that at that time 'everything had disappeared. There are no abnormal shadows. * * * It is a normal lung now.' Plaintiff then obtained a letter from Dr. Silpe which stated that he had completely recovered from a 'questionable active pulmonary tuberculosis,' that his X-rays showed a healed scar, and that he could return to work with no restrictions. Plaintiff returned to Langston with this letter and was told there were no jobs available at that time but that he would be considered for any future job opening provided he could pass a physical examination. In January 1959 Langston called the plaintiff and told him they had a job available. He was sent to Dr. Meidt, a chest specialist, for X-rays and evaluation of his chest. Dr. Meidt performed a physical examination, took a complete history, a fluoroscopy of his chest, and X-rays. In addition he examined the earlier X-rays taken by Dr. Sirotta and Dr. Oppenheimer. In his written report to Dr. Milnamow, Dr. Meidt diagnosed plaintiff's condition as 'pulmonary tuberculosis minimal in the right upper lobe.' He stated that it was impossible to classify the lesion he found as inactive since there had not been stable X-rays for three months. However, in his opinion the lesion had responded...