Lopez v. Swyer

• Decision Date: 22 June 1971
• Citation: 279 A.2d 116,115 N.J.Super. 237
• Parties: Maria LOPEZ, also known as Mary and Mariantonia Lopez, and Frank Lopez, her husband, Plaintiffs-Appellants, v. Alfred J. SWYER, M.D. et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 237

115 N.J.Super. 237

279 A.2d 116

Maria LOPEZ, also known as Mary and Mariantonia Lopez, and Frank Lopez, her husband, Plaintiffs-Appellants, v. Alfred J. SWYER, M.D. et al., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 10, 1971.

Decided June 22, 1971.

David A. Pressler, Ridgefield, for appellants (Sylvia B. Pressler, Englewood, on the brief; Okin, Pressler & Scherby, Ridgefield, attorneys).

John J. Francis, Jr., Newark, for respondent Alfred J. Swyer, M.D. (Shanley & Fisher, Newark, attorneys).

Francis P. Witham, Hackensack, for respondents Milton Danon, D.O., Robert Osder, D.O., and Harold Stricker, D.O. (John P. Markey, Hackensack, of counsel; Markey & Witham, Hackensack, attorneys).

Before Judges GOLDMANN, HALPERN, and FRITZ.

The opinion of the court was delivered by

FRITZ, J.A.D.

In this action charging medical malpractice, fraud, and conspiracy, plaintiffs appeal from summary judgment in favor of defendants.

The matter has been here before. Following earlier motions for summary judgment, granted as to defendant Swyer but denied as to the other defendants, plaintiffs and unsuccessful defendants sought leave to appeal. We reserved decision on these motions, and remanded for the taking of depositions of defendants-plaintiffs had been deposed prior to the motions--and for reargument before the trial court. Extensive depositions were taken of the four defendant doctors. The trial court again heard argument, and this time entered summary judgment in favor of all defendants (although all that was before the court in addition to that proffered on the earlier motions were defendants' depositions). It is from this determination plaintiffs appeal.

We have had the benefit of all the depositions. Since Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 110 A.2d 24 (1954), it is axiomatic that on a motion for summary judgment,

* * * it is the movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact, 6 Moore's Federal Practice, par. 56.15(3). The phrasing of our rule, R.R. 4:58--3, slightly different from Federal Rule 56(c), underscores this in the requirement that the absence of undisputed material facts must appear 'palpably.' All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated, Templeton v. Borough of Glen Rock, 11 N.J.Super. 1, 4, 77 A.2d 487 (App.Div.1950). And it is not to be concluded that palpably no genuine issue as to any material fact exists solely because the evidence opposing the claimed fact strikes the judge as being incredible. Arnstein v. Porter, 154 F.2d 464, 469 (C.C.A.2, 1946). Issues of credibility are ordinarily for the trier of fact, and the judge does not function as a trier of fact in determining a motion for summary judgment. * * *. (At pages 74--75, 110 A.2d at page 27.)

With this mandate in mind, we observe that the evidence offered and reasonable inferences therefrom can be said to support the following facts for the purpose of these motions.

In December 1961 plaintiff ^* Maria Lopez, then 32 years old and a housewife and mother, noticed a lump in her right breast. She consulted defendant Milton Danon, a doctor of osteopathy, who had been her personal physician for about eight years and was in addition a close personal friend. He immediately arranged for surgery by one Dr. Laidman who is not here involved. When malignancy was discovered a radical mastectomy was performed. Metastasis was suspected during surgery, as a result of which 'all lymph glands that they could find in the axilla * * * everyone in sight' were also removed. Metastasis was confirmed on pathologic report the following day. As a matter of caution, in that which is apparently a common practice and is not here challenged, radiation therapy was recommended by the surgeon. Danon referred plaintiff to defendant Alfred J. Swyer, a radiologist. He administered X-ray treatments daily except Sundays from January 8, 1962 to February 13, 1962. For this referral Danon received one-third of Swyer's fee.

Commencing during the period of treatment by Swyer and continuing until the present, plaintiff's reaction to the radiation therapy has been dramatically calamitous. From pain, nausea, and burning, including a burning of the axillary hair during treatment, plaintiff's condition deteriorated to such an extent, for instance, that her skin burned 'so severely that I bandaged myself so that nobody would see the smoke come out of me.' She developed necrotic ulcers requiring surgical repair. The X-ray burn produced suppuration from the surgical incision. The pain was intense and constant. Not the least of the resultant injuries was that of radiation fibrosis of the lung. Spontaneous rib fractures occurred. A phrenic nerve block was employed as a palliative for the intense pain. She was hospitalized 15 times while under the care of Danon, Osder, and Stricker. In March 1967 Mrs. Lopez entered New Yory University Hospital for reconstructive surgery. She is still under medical supervision.

As noted above, Dr. Dwyer's treatment was concluded on February 13, 1962. Except for an X-ray taken on April 10, 1962, and one house visit when Dr. Swyer was called in the absence of Dr. Danon, Swyer did not again see plaintiff. However, the severity of plaintiff's ensuing disability caused her to seek medical advice from Dr. Danon and those associated with him in office practice frequently and regularly until about January 1966 or shortly thereafter, when she was advised by Dr. Stricker that he would not treat her any more. She has had substantial medical treatment since, including the reconstructive surgery and continuing until the present. The treatment after early 1966 was by other doctors not here involved.

It is appropriate to note the relationship between defendant doctors during the period from December 1961 to January or February 1966. All except Dr. Swyer are doctors of osteopathy. Dr. Swyer is a radiologist. In June or July 1961 Danon engaged Osder in the office which Danon maintained, and Osder became a partner of Danon about a year later. Dr. Stricker joined the two of them as an employee shortly after he became licensed in August 1965. Dr. Danon left the practice of medicine on December 31, 1965 and spent about six months as a junior partner in a brokerage firm. When he resumed the practice of medicine in June 1966 it was in the field of anesthesiology.

The Danon office referred patients requiring services in Dr. Swyer's field to Dr. Swyer, at least until sometime in 1962. For this the referring doctor received a third of Swyer's fee. Sometime in the middle of 1962, at the time of or just before plaintiff's first hospitalization, but not later than September 1962, Danon and Osder, then partners, stopped referring patients to Swyer. Ostensibly a strained relationship was produced by impatience on the part of Swyer when Danon asked him to locate an X-ray film of a mutual patient, not the plaintiff. (In October 1962 Dr. Swyer advised his malpractice insurance carrier of the fact that he 'might have difficulty' with Mrs. Lopez.) The referral relationship between Drs. Osder and Stricker was not resumed with Swyer until 1966, after Dr. Danon had terminated his association with them.

On September 18, 1967 plaintiffs commenced this action against defendants. They charge Swyer with negligence in the radiation treatments, and Danon, Osder, and Stricker with intentionally false reassurances and willfully keeping from them proper medical advice relating to the treatment and its effects. They allege a conspiracy among Danon, Osder and Stricker and with Swyer in connection with the improper medical advice. They assert additionally that Danon, Osder, and Stricker fell below the standard required of the reasonable physician with respect to the reassurances and advice and were thus negligent.

Beyond denying negligence, defendants deny having misinformed plaintiffs intentionally or otherwise and disavow the existence of a conspiracy. They concede the early existence of substantial physical difficulties, set forth their advice to plaintiff with respect to the relationship of these difficulties to the Swyer treatment and as residuals thereof, and argue therefrom that plaintiff either knew or must have known of her difficulties and relationship to the Swyer treatment in 1962. It is upon this predicate that the statute of limitations is urged.

Plaintiffs' response to the statute of limitations defense is that, while Maria Lopez was gravely ill, they did not understand that this illness was produced by the negligence of Dr. Swyer, and this because of the reassurances given her over the years by Danon, Osder and Stricker. In this regard, plaintiff admits that inquiry was made of Dr. Danon early in 1962, during treatment, about whether 'malpractice' was occurring. Her husband's deposition quotes Dr. Danon as having said, 'This was not malpractice. This sometimes happens.' Dr. Danon also testified in deposition with respect to his recollection about discussion of a malpractice suit. He had such a recollection, but did not recall specifically what was said since he was 'mainly a listener.'

In March 1967 Mrs. Lopez, while in a hospital for one of the stages of the reconstructive surgery, was displayed to 'forty, fifty doctors' by the doctor who had charted the surgical procedure. These doctors retired to an adjacent room, evidently for the purpose of discussing the case. Mrs. Lopez heard their conversation through an open door. Her testimony in this respect was as follows * * So I heard this Doctor mention my name, and I began to listen very intently. And this conversation did state that here was a woman who was on 300 millgrams of demerol a day, couldn't stand the pain, when she came. And then he made a...