Galik v. CLARA MAASS MED. CENTER
Decision Date | 10 May 2001 |
Citation | 771 A.2d 1141,167 N.J. 341 |
Parties | Simone GALIK, Executrix of the Estate of Vivian Galik, her mother, deceased and Simone Galik, Individually, Plaintiff-Appellant, v. CLARA MAASS MEDICAL CENTER a hospital corporation, its servants, agents, or employees, Joseph M. Fusco, M.D., Richard Roe, Jane Doe and Mary Roe, (fictitious names intending to designate physicians and/or nurses involved in the care, management, diagnosis, and treatment) and each of them jointly, severally or in the alternative, Defendants, and Matthew DeLuca, M.D., Keshavmurthy Shivashankar, M.D., Robert Acosta, M.D., David Greifinger, M.D. and Edwin Gangemi, M.D., Defendants-Respondents. |
Court | New Jersey Supreme Court |
Terry L. Shapiro, Newark, argued the cause for appellant (Mandel Berezin Shapiro & Sawyer, attorneys).
Edward J. Dauber, Newark, argued the cause for respondents Matthew DeLuca, M.D., Keshavmurthy Shivashankar, M.D., Robert Acosta, M.D. and David Greifinger, M.D. (Greenberg, Dauber, Epstein & Tucker, attorneys; Michael J. Lunga, David P. Weeks and James R. Korn, of counsel; Karen M. Lerner, Susan A. Dragone, Michael R. Ricciardulli and Julia A. Klubenspies, on the briefs).
Kenneth M. Brown, Murray Hill, argued the cause for respondent Edwin Gangemi, M.D. (Reiseman Sharp Kelsey & Brown, attorneys; Jane S. Kelsey, of counsel; Everett E. Gale, III, on the brief). The opinion of the court was delivered by LONG, J.
We are called upon once more to evaluate the sufficiency of a plaintiff's conduct in attempting to satisfy the Affidavit of Merit statute. N.J.S.A. 2A:53A-27.
On December 26, 1995, eighty-year-old Vivian Galik slipped and fell in her kitchen, striking the back of her head and her neck on a radiator. She was taken to the Emergency Department of Clara Maass Medical Center, and later admitted. Galik was treated at Clara Maass by Dr. Robert Acosta (radiologist), Dr. Matthew DeLuca (neurologist), Dr. Edwin Gangemi (physiatrist), Dr. David Greifinger (orthopaedist), and Dr. Keshavmurthy Shivashankar (primary care/internist). During the weeks she spent at the Hospital, Galik progressively lost function in her limbs. She was discharged on January 31, 1996 "virtually quadriplegic [and] requiring total care." On February 23, 1996, Galik was admitted to Mountainside Hospital where she was diagnosed with a fractured cervical spine. She died of pneumonia and respiratory arrest on February 29, 1996.
Galik's daughter, Simone, the executrix of her estate, retained an attorney to investigate the possibility of instituting a malpractice action in connection with her mother's death. The attorney, in turn, provided Mrs. Galik's records to a Board Certified Neurosurgeon, Dr. Francis J. Pizzi. Pizzi prepared a report for the lawyer on November 11, 1996 that stated:
In a supplemental report dated March 12, 1997, Dr. Pizzi added particularized allegations against Doctors DeLuca, Greifinger and Shivashankar by name:
By letter dated July 29, 1997, plaintiff's counsel forwarded Dr. Pizzi's reports to Princeton Insurance Company, the carrier for Doctors Gangemi and Greifinger, and Medical Inter-Insurance Exchange of N.J., the carrier for Doctors Acosta, DeLuca and Shivashankar, simultaneously advising the carriers of his client's demand for a "global settlement" for Mrs. Galik's "conscious pain and suffering" and "premature, untimely wrongful death." The July 29, 1997 letter specifically names all five of the physicians who treated Mrs. Galik:
Enclosed herewith you will please find the report of Dr. Francis Pizzi, neurosurgeon, dated November 11, 1996.
Dr. Pizzi discusses the medical negligence of Dr. Acosta (radiologist) Dr. Shivashankar (primary physician) Dr. DeLuca (neurologist) Dr. Greifinger (orthopaedist) and Dr. Gangemi (physiatrist).
In the opinion of Dr. Pizzi, Ms. Galik died based upon the failure of each specialist to diagnose the subluxations of the cervical, vertebral unstable spine resulting in the spinal cord lesion quadraplegia [sic] and death.
[Emphasis added.]
Again on October 8, 1997, plaintiff's counsel notified the insurance carriers by letter of plaintiff's intent to file suit "unless this matter is amicably resolved by October 23, 1997" and again enclosed a copy of Dr. Pizzi's March 12 report.
Efforts to settle the case were unsuccessful and on November 19, 1997, plaintiff, Simone Galik, individually and as executrix of the estate of her mother, filed a malpractice action against Drs. Acosta, DeLuca, Gangemi, Greifinger and Shivashankar, the hospital and a number of John Doe defendants, alleging malpractice. Doctors DeLuca and Greifinger answered on January 13, 1998, Dr. Acosta on January 26, 1998, Dr. Gangemi on March 10, 1998, and Dr. Shivashankar on March 23, 1998. Drs. Acosta, DeLuca, Gangemi and Greifinger filed motions to dismiss based on plaintiff's failure to provide an affidavit of merit as required by N.J.S.A. 2A:53A-27.
On May 28, plaintiff filed a ...
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