Westphal v. Guarino

• Decision Date: 12 January 1978
• Citation: 163 N.J.Super. 139,394 A.2d 377
• Parties: Elizabeth WESTPHAL, as Executrix of the Estate of William Westphal, Deceased, and Elizabeth Westphal, Individually, Plaintiff-Appellant, v. Lawrence A. GUARINO, M.D., Murray Wagman, M.D., Dominick A. Scialabba, M.D., Stuart J. Friedman, M. D., and John F. Kennedy Community Hospital, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 139

163 N.J.Super. 139

394 A.2d 377

Elizabeth WESTPHAL, as Executrix of the Estate of William Westphal, Deceased, and Elizabeth WestphalIndividually, Plaintiff-Appellant, v.Lawrence A. GUARINO, M.D., Murray Wagman, M.D., Dominick A Scialabba, M.D., Stuart J. Friedman, M. D., and John F. Kennedy Community HospitalDefendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 15, 1977.

Decided Jan. 12, 1978.

Franklin M. Sachs, Newark, for plaintiff-appellant(Podvey & Sachs, Newark, attorneys; Kathleen Moran, Newark, on the brief).

John Z. Jackson, Newark, for respondentMurray Wagman(Shanley & Fisher, Newark, attorneys).

Robert P. McDonough, Westfield, for respondentsDominick A. Scialabba and Stuart J. Friedman(McDonough, Murray & Korn, Westfield, attorneys).

Before Judges LORA, SEIDMAN and MILMED.

PER CURIAM.

PlaintiffElizabeth Westphal, individually and as executrix of the estate of her deceased husband, instituted a medical malpractice suit against four physicians, Lawrence A. Guarino, Murray Wagman, Dominick A. Scialabba and Stuart J. Friedman, and the John Kennedy Community Hospital, alleging that their negligence in failing to make a correct diagnosis resulted in the death of her husband.A pretrial motion for summary judgment made on behalf of Dr. Guarino was granted.At the commencement of the trial plaintiff voluntarily dismissed the complaint as against the hospital with prejudice.The trial proceeded against the remaining defendants and resulted in a verdict of no cause of action.Plaintiff appealed the resultant judgment.

The single issue raised on appeal (though divided into two points in plaintiff's brief) is whether the trial judge clearly abused his discretion to the prejudice of plaintiff by refusing to relax R. 4:17-7 so as to permit plaintiff's medical experts to testify.

In January 1972plaintiff's husband developed chills, headache and nausea.He was treated by Dr. Wagman, who diagnosed the ailment as severe influenza.When decedent failed to respond to treatment and later developed a high fever, Dr. Wagman caused him to be admitted to John F. Kennedy Community Hospital on February 6.The patient remained there until March 23, when Dr. Howard Z. Joselson, engaged by plaintiff in replacement of Dr. Wagman and the specialists who had been treating her husband, had him transferred to East Orange Hospital, where he came under the care of Dr. Howard E. Medinets, a neurologist.Death occurred on March 29, 1972.

Plaintiff sought to establish at the trial that Drs. Scialabba and Friedman, neurologists who performed spinal taps on her husband at the John F. Kennedy Community Hospital, erroneously concluded that he was suffering from a subarachnoid hemorrhage, whereas in fact the illness was a bacterial infection.The death certificate gave the cause of death to be "cerebral infarction, due to brain abscess, due to meningitis," but a later autopsy revealed no indication of meningitis.Dr. Joselson, testifying for plaintiff, expressed the opinion that Dr. Wagman had deviated from accepted medical standards by giving decedent an antibiotic which probably would not have helped the condition and which masked the growth of the bacterial infection, and that Drs. Scialabba and Friedman deviated from those standards by misreading the spinal taps and thus failing properly to diagnose the illness as a bacterial infection.

Defendants produced Dr. Medinets who, in response to a hypothetical question, said that the diagnosis of subarachnoid hemorrhage was correct, that Dr. Wagman's initial use of antibiotics was beneficial, and that none of the defendants had deviated from accepted standards of medical care.

Plaintiff argues that the exclusion of her proposed expert medical witnesses compelled her to go to trial only with the medical testimony of Dr. Joselson, whom she had not intended to use to prove negligence or proximate cause.She submits that it was "unjust to compel a plaintiff to try a medical malpractice case without competent and prepared expert witnesses."

The testimony of the proposed experts, Dr. James Zimmerly and Dr. Bernard Sussman, was barred on defendants' motion at the outset of the trial because their names had not been supplied and their reports not furnished to defendants within 20 days of the first date fixed for trial, as specified in R. 4:17-7.The trial judge refused to relax the rule because of plaintiff's failure to move in advance for said relief.He was of the view that defendants, having objected to the lateness of the names and reports, were under no burden to go forward despite their objection and take depositions of the experts.

Dr. Wagman's interrogatories relating to expert witnesses, propounded in April 1974, were answered merely by inserting "H. Joselson." and "To be provided."The response to those submitted by Drs. Scialabba and Friedman was "To be supplied."

The case was first listed for trial in April 1975.It was adjourned at that time and also in November of that year because depositions of the defendant physicians were still outstanding.During this time defendants Scialabba and Friedman served on plaintiff a copy of a report by a Dr. Smith, whom they intended to use as an expert, and advised that the opinion of Dr. Medinets, who had agreed to appear as an expert witness, was substantially in accord with that of Dr. Smith.

A third trial date of January 2, 1976, was postponed because the depositions of Drs. Wagman and Friedman were still incomplete.A further adjournment until March 15, 1976 was granted at Dr. Wagman's request.

On January 22, 1976defendants were advised by letter that plaintiff's interrogatories were being amended to name Drs. Zimmerly and Sussman as expert witnesses.The letter stated that the witnesses, having reviewed the records, would testify that the care and treatment rendered by defendants"was inadequate, did not meet the standards existing in the community, and that this inadequate care and treatment caused the decedent's condition to deteriorate and caused him to ultimately expire."Defendants were also informed that as soon as the depositions of Drs. Wagman and Friedman were completed the "transcripts will likewise be forwarded to these two experts for their review."Defendants Scialabba and Friedman formally objected on January 26, 1976 to the addition of those experts.

The depositions of Drs. Wagman and Friedman were completed on January 29.On that date plaintiff's counsel advised their opponents that they had been endeavoring to complete the depositions of defendants for many months, and that the names of their experts and the "essence of their testimony had been given as soon as possible.Opposing counsel were "put * * * on notice" that "we intend to produce these two experts to testify at the time of trial." On February 3 Dr. Wagman furnished plaintiff a copy of a report by his proposed expert, a Dr. Kirschner, advising that (i)n the event that you wish to depose Dr. Kirschner, please advise me in order that necessary arrangements can be made."Dr. Sussman's report was provided to defendants on February 25.On March 4 Dr. Wagman formally objected to plaintiff's late addition of experts.On March 10 Drs. Scialabba and Friedman named Dr. Stuart Levin as an additional expert to be used in the event that Dr. Sussman was allowed to testify at the trial, and a copy of his report was furnished.A summary of "information received from Dr. Zimmerly" was mailed by plaintiff's counsel to defendants' counsel on March 15.The trial commenced on March 17.

R. 4:17-7 provides that where a party who has furnished answers to interrogatories thereafter obtains information rendering the answers incomplete or inaccurate, "amended answers shall be...