Reed v. Bojarski

• Decision Date: 23 January 2001
• Citation: 166 N.J. 89,764 A.2d 433
• Parties: Linda REED, as Executrix of the Estate of Arnold S. Reed, deceased, and Linda Reed, Individually, Plaintiff-Appellant, v. Michael H. BOJARSKI, D.O. and Life Care Institute, Inc., t/a Life Care Medical Center, Defendants-Respondents, and D.A. DePersia, M.D., Environmental Medicine Resources, Inc., John Doe, M.D.'s (A-Z) and Jane Doe Corporations (A-Z) Jointly, Severally and/or in the alternative, Defendants.
• Court: New Jersey Supreme Court

764 A.2d 433

166 N.J. 89

Linda REED, as Executrix of the Estate of Arnold S. Reed, deceased, and Linda Reed, Individually, Plaintiff-Appellant, v. Michael H. BOJARSKI, D.O. and Life Care Institute, Inc., t/a Life Care Medical Center, Defendants-Respondents, and D.A. DePersia, M.D., Environmental Medicine Resources, Inc., John Doe, M.D.'s (A-Z) and Jane Doe Corporations (A-Z) Jointly, Severally and/or in the alternative, Defendants.

Supreme Court of New Jersey.

Argued October 23, 2000.

Decided January 23, 2001.

Jay H. Greenblatt, Vineland, argued the cause for appellant (Jay H. Greenblatt & Associates, attorneys).

Joel B. Korin, Woodbury, argued the cause for respondents (Kenney & Kearney, Cherry Hill, attorneys).

Steven N. Flanzman, Deputy Attorney General, argued the cause for amicus curiae, New Jersey State Board of Medical Examiners (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel).

The opinion of the Court was delivered by LONG, J.

The requirement of a physician's examination as a condition of employment, often paid for by the prospective employer, is not uncommon. This case focuses on the responsibility of a physician in such circumstances. More particularly, we are confronted with the question whether a physician, performing a pre-employment screening, who determines that the patient has a potentially serious medical condition, can omit informing the patient and delegate by contract to the referring agency the responsibility of notification. The answer is no.

I

The facts of the case are not seriously disputed: Arnold Reed was a heavy-equipment operator for the Woolston Construction Company. In 1991, Woolston entered into a contract with the I.T. Davey Corporation to perform work at a New Jersey landfill. Occupational Safety and Health Administration (OSHA) regulations required Reed to undergo a pre-employment physical. Davey contracted with Environmental Medicine Resources, Inc. (EMR) to perform the examinations for the Woolston workers. EMR, located in Georgia, subcontracted the examinations to Life Care Institute Inc. (Life Care), of Glassboro, New Jersey, an outpatient medical facility that provides various types of medical imaging services, physical therapy, and occupational medicine. Pursuant to the agreement between Davey and EMR, Reed's examination was to include, among other tests, a single, frontal X ray of the chest. The EMR-Life Care contract provided that Life Care's responsibility was to analyze the chest X ray and evaluate it either as "normal" or "abnormal." If Life Care determined that the X ray was abnormal, it was to forward it to EMR within twenty-four hours. EMR took responsibility for "over-reads and evaluation to obtain a diagnosis ."

Dr. Michael H. Bojarski, an employee of Life Care, conducted Reed's physical. Another physician employed by Life Care, D.A. DePersia, M.D., a radiologist, was responsible for reading the chest X rays and reporting to Dr. Bojarski. Upon reviewing Reed's X ray, Dr. DePersia told Dr. Bojarski that Reed had a widened mediastinum, the cavity in the center of the chest. Dr. Bojarski testified that he could not "personally" see the widened mediastinum on the X ray but relied on the expertise of Dr. DePersia. It is an accepted medical fact that, among men in their twenties, a widened mediastinum may be an indicator of lymphoma, including Hodgkin's disease. Dr. DePersia also noted that Reed's heart was unusually large, a medical condition known as cardiomegaly. Reed was apparently aware of that condition.

Dr. Bojarski sent the X ray, along with the rest of Reed's examination package, to EMR. He noted that the X ray was abnormal and wrote "cardiomeg" in the comments section. No reference to the widened mediastinum was made. Although two days later Dr. DePersia gave Dr. Bojarski a written report on Reed's X ray recommending a follow-up CT-scan, Dr. Bojarski never conveyed that suggestion or the report to EMR. Inexplicably, on May 14, 1991, Dr. Michael Barnes of EMR wrote to Reed and informed him that he was in good health. In the letter he made no mention of the widened mediastinum or any potentially dangerous condition.

About six months later, in November 1991, Reed returned to Life Care for another examination. In the interim, he had lost 25 pounds and was suffering from flu-like symptoms. Dr. Bojarski did not ask Reed whether he had ever learned of or followed up on the widened mediastinum. In December 1991, Reed was admitted to the hospital and, after a chest X ray showed a large mass in his mediastinum, he was diagnosed with Stage IIB Hodgkin's disease. Reed died eight months later on October 27, 1992, at the age of 28.

Linda Reed, executor of her husband Arnold's estate, brought suit on behalf of the estate and on her own behalf against Dr. Bojarski, Dr. DePersia, Life Care, EMR, and numerous John Doe defendants. Dr. DePersia was granted summary judgment and EMR settled with Reed, resulting in a stipulated dismissal. The case against Dr. Bojarski and Life Care went to trial.

At trial, Reed's counsel objected to the introduction of the EMR-Life Care contract because it appeared to limit Dr. Bojarski's duty toward Reed. He ultimately agreed to its admission if the court instructed the jury "that [agreements between EMR and Life Care] do not represent, necessarily, the law that they are going to apply." The trial court agreed and told the jury before defense counsel's opening statement: "the contractual relationship between E.M.R. and Life Care Institute does not necessarily result in the same relationship that exists as between the defendants in this case and the plaintiff. Those duties will be explained to you...." Reed presented two liability witnesses: Linda Reed and Dr. Maurice Cairoli, Arnold Reed's treating physician (an expert in medicine and oncology, although not an expert in occupational medicine), who testified regarding the standard of care applicable to Dr. Bojarski. In answering Reed's counsel's questions about the obligations of a physician in the circumstances of this case, Dr. Cairoli stated:

That X ray has to be pursued. That X ray has to be acted upon. If a ... certified radiologist who is entrusted with looking at an X ray and making a medical opinion says that the mediastinum is widened, until proven otherwise, the physician who has knowledge of these results must be concerned about the possibility of malignancy, must convey that information on to the patient, and must do further testing.

During the defense case, Dr. Bojarski and Leonard Kraus, President and Manager of Life Care, testified concerning the EMR-Life Care contract. The defendants also called Dr. George Mellendick as an expert in occupational medicine. Dr. Mellendick testified that, in an examination scheme like the one used by EMR and Life Care, the common approach is for "the data [to] be centrally collated and transmitted in a sensible way." He further testified that he understood that Dr. Barnes had the "responsibility ... to get the information and to communicate directly to the patient-employee what the findings were.... [I]deally, we like one physician to collate the information and get it back to the patient."

Dr. Mellendick stated that the EMR-Life Care contract "clearly spelled out that [Life Care] would have certain responsibilities for getting data ... and forward[ing] anything which was abnormal." He testified that the arrangement between EMR and Life Care was "fairly standard" and that Dr. Bojarski's conduct was "reasonable" in light of the contract and typical practices in occupational medicine.

Both sides proposed jury instructions. Reed's version incorporated the traditional duties that flow from the existence of a doctor-patient relationship. Dr. Bojarski's version focused on the reasonableness of his conduct. Reed's counsel asked the Court to instruct the jury that Dr. Bojarski's duty to advise Reed is non-delegable, and that the duty exists notwithstanding the contract. The trial court agreed to instruct the jury that the contract affected only the relationship between EMR and Life Care.

The trial court properly informed the jury that a physician performing a pre-employment physical owes the examinee a duty of reasonable care in the conduct of the examination and that that duty encompasses taking reasonable steps to inform the examinee of findings that pose a danger to his health. He went on to say:

What plaintiff alleges is that upon the chest X ray having been read by Dr. DePersia, and she having discussed her finding, a possibility of a mediastinal abnormality, and suggesting CT scanning, that Dr. Bojarski breached the duty of reasonable care owed by him to the plaintiff, to inform the plaintiff directly or EMR of those X ray findings.

Dr. Bojarski, on the other hand, contends that he did act reasonably by reading the X ray, advising EMR that it was abnormal and forwarding the original X ray to EMR. Defendant Dr. Bojarski likewise alleges that EMR breached the standard of care by the letter written to Mr. Reed in light of the report of abnormal X ray mailed to EMR by Dr. Bojarski.

Now if you find that Dr. Bojarski satisfied his duty of reasonable care, and the duty to inform, then you may not find him negligent, and your verdict should be for the defendant. On the other hand, if you find Dr. Bojarski breached the duty owed by a reasonable care, including the duty to inform, your verdict should be for the plaintiff.

You must make the determination of whether Dr. Bojarski took reasonable steps to inform the plaintiff, Mr. Reed, of any findings under the facts of this case. In other words, you must determine whether it was reasonable for Dr. Bojarski to forward the materials concerning Mr. Reed to EMR and rely upon EMR's contractual obligation to review the materials and inform Mr. Reed of any adverse findings.

If you find that it was reasonable for Dr.

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