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In three decisions last week, including one overturning a 77-year-old precedent, New Jersey’s state supreme court made it easier for patients to sue their doctors for malpractice. Reversing a 1933 ruling, the justices found in Miller v. Estate of Sperling, A-90-99, that a decedent’s failure to file a medical malpractice suit in her lifetime did not bar a wrongful death claim. In Reed v. Bojarski, A-63-99, the justices ruled that a doctor who finds a potentially serious medical condition during a pre-employment screening cannot delegate to the referring agency the responsibility of informing the patient. And in Caravaggio v. D’Agostini, A-114-00, the court held that the plaintiff is not required to file a malpractice complaint until she has a reasonable belief that the physician might have committed malpractice. In Miller, the justices voted unanimously to overturn Knabe v. Hudson Bus Trans. Co., 111 N.J.L. 333, which held that wrongful death claims could not be pursued because a personal injury action had not previously been filed. The court reinstated the wrongful death suit filed by Cletis Miller, who claimed that his wife, Ann, died as the result of medication prescribed by her family physician, Walter Sperling. “[A] wrongful death claim is an independent cause of action that cannot be extinguished by the failure of a decedent to maintain a medical malpractice action within the applicable limitations period … , ” Justice James Zazzali wrote for the court. In 1972, Sperling began prescribing for Ann a birth control medication, Ovulen 28 — later taken off the market because of adverse side effects. According to the complaint, Sperling never told Miller that the prescription was a birth control medication, instead telling her it was a tranquilizer. Miller was on the medication until 1985, when Sperling allegedly told her of its real intended use. At that time, the Millers unsuccessfully sought to have Sperling criminally prosecuted. Ann Miller died on March 30, 1996, at the age of 66 of suspected acute myocardial infarction accompanied by chronic interstitial lung disease. Two years later, Cletis Miller filed the wrongful death action against Sperling, charging that the Ovulen 28 was the proximate cause of his wife’s death. Sperling died a year after Ann Miller, and the claim is being pressed against his estate. The New Jersey Appellate Division, relying on Knabe, upheld a trial judge’s grant of summary judgment. In Knabe, the New Jersey Court of Errors and Appeals said a man could not pursue a wrongful death claim on behalf of his late wife against a bus company because there had been no personal injury claim filed in connection with the accident. Appellate Division Judge James Petrella said that while Miller’s wrongful death claim did not ripen or accrue until after his wife died, Knabe precluded such a filing because there was no underlying malpractice claim and because of the death claim’s derivative nature. “[I]n our view, Knabe presents a sensible rule which has withstood the test of time,” Petrella wrote for the appeals panel. The supreme court, however, disagreed. Zazzali dug deep into legal history, first citing English common law and a ruling from Britain, Baker v. Bolton, 170 Eng. Rep. 1033 (K.B. 1808), where a judge, Lord Ellenborough, wrote: “[I]n a civil court, the death of a human being could not be complained of as an injury.” But Zazzali said the lack of a remedy for families of those who died due to the actions of another often led to destitution. Responding to the perceived need for a remedy, Parliament passed the Fatal Accidents Act of 1846. New York became the first state to pass a wrongful death act, modeling its statute on the legislation passed by Parliament. New Jersey followed suit a year later. Zazzali said Knabe did not adequately protect the interests of survivors when an underlying claim was never filed. He said it is not necessary for such a claim to be filed in order for a wrongful death claim to be pursued. “A claim for wrongful death is independent of a claim for malpractice,” Zazzali wrote. “Decedent’s failure to file an action in her lifetime does not bar the death action. We conclude that plaintiff’s right to file the wrongful death claim outweighs defendant’s interest in repose, in light of the overarching need to preserve rights established by the Legislature for those who survive a decedent. “A different result not only conflicts with the language of the [Wrongful Death Act], but could extinguish a wrongful death action even before it came into existence. We reject such a result.” Says Miller’s lawyer, West Orange, N.J., sole practitioner Willard Byer: “You still have to prove a cause to sustain the action, but the court has removed one barrier from filing a wrongful death claim.” NO DELEGATING RESPONSIBILITY In Reed v. Bojarski, the court ruled last Tuesday that a physician hired by a third party to conduct an exam cannot delegate to the third party the responsibility of notifying the patient of a potentially serious medical condition, even if that is what the contract calls for. The court, in a 7-0 opinion, ordered a new trial for the widow of Arnold Reed, who was not told that he had Hodgkin’s disease until it was too late. Reed, a heavy equipment operator for a construction company, was required under federal workplace safety guidelines to undergo a pre-employment physical exam. The company hired Life Care Institute Inc. of Glassboro, N.J., to oversee pre-employment physicals. The defendant, Dr. Michael Bojarski, was a Life Care employee, and his contract stated that information stemming from physicals, which included a chest X-ray, was to be reported to the employee by the company within 24 hours of the exam. Reed underwent an MRI in 1991. The radiologist, Dr. D.A. DePersia, told Bojarski that the X-ray showed a “widened mediastinum,” a possible sign of Hodgkin’s disease. Bojarski did not tell Reed of the condition, and instead sent a report to the company that failed to mention the problem. The company, not aware of the condition, told Reed he was in good health. Reed later was diagnosed with Hodgkin’s disease and died a year later at the age of 28. The suit was filed by his wife, Linda. A jury later ruled in Bojarski’s favor, saying that he acted within accepted standards of medical care. Part of the basis behind the verdict was the language in Bojarski’s contract with Life Care. The Appellate Division affirmed. Justice Virginia Long, writing for the 7-0 court, with Verniero filing a concurring opinion, said Bojarski had a duty to inform Reed of his condition after reviewing the X-ray with DePersia. The court relied in part on Ranier v. Frieman, 294, N.J. Super. 182 (App. Div. 1996), which held that when a person is referred to a doctor for a pre-employment exam, the physician-patient relationship is created. Included in the notion of that bond is the obligation to let the patient know of any adverse findings, Long wrote. She also referred to N.J.A.C. 13:35-6.5 (f), which describes the state’s public policy on a physician’s duty to an examinee when the examination is undertaken at the behest of a third party. That duty includes informing the patient of the need to consult with another health-care professional. “New Jersey has long recognized that a physician owes a duty of reasonable care to the nontraditional patient in the context of third-party examination,” she wrote. “Although the pre-employment physical clearly does not establish a traditional physician-patient relationship, that is of no moment. “What is crucial is that a relationship is created in which a physician is expected to exercise reasonable care commensurate with his expertise and training … . Concomitantly, the patient is entitled to rely on the physician to tell him of a potential serious illness if it is discovered. Any reasonable person would expect that and the duty to communicate with a patient who is found to be ill is non-delegable.” The contract between Bojarski and Life Care was intended to shield the doctor from liability for breaching the duty to communicate abnormalities, and Long said that violates public policy. “In light of the evaluative purpose of the exam, Reed concomitantly relied on Dr. Bojarski’s superior knowledge to assess the state of his health,” wrote Long. “Subsumed in that reliance was an entirely reasonable belief that, if Dr. Bojarski had found a potentially life-threatening abnormality, he would have not remained silent about it. [H]e had an absolute right to expect that he would be told if something was wrong. No contract by the doctor or his employer with a third party could relieve Dr. Bojarski of that obligation.” FORMING A REASONABLE BELIEF In the third case, Caravaggio v. D’Agostini, A-114-00, the court ruled last Monday that a plaintiff is not required to file a malpractice complaint until she has a reasonable belief that the physician might actually have committed malpractice. The court reinstated a malpractice suit filed by Patricia Caravaggio against Dr. Robert D’Agostini, who inserted a metal rod into Caravaggio’s leg after she was injured in a May 23, 1993, motorcycle accident. During physical therapy two months later, on July 28, Caravaggio heard a snap, and it later was determined that the rod broke. During an exam, D’Agostini said he could not understand how the rod could break in such a short time. He surmised that there might have been some structural problems with it. In another operation, D’Agostini inserted a longer, thicker rod. On Sept. 15, 1995, Caravaggio learned that metallurgical tests indicated that there was nothing wrong with the first rod, and she filed a malpractice complaint against D’Agostini, alleging that he should have used the larger rod in the first operation. The claim was dismissed because it was not filed within the two-year statute of limitations required for malpractice suits. The trial court, and the Appellate Division, said Caravaggio should have suspected malpractice on the day the first rod broke. Long, writing for a 5-2 majority, said it was reasonable for Caravaggio to have relied on D’Agostini’s statements about the possible defective nature of the rod, and that it was also reasonable for her to not have looked at D’Agostini as a possible defendant until after the metallurgical tests came back. “It was only when the rod was removed and found not to be defective that Mrs. Caravaggio might possibly have had reason to look elsewhere,” wrote Long. “Dr. D’Agostini did not cause Mrs. Caravaggio’s original injury. He was hired to bring her back to health. That is what he was trying to do when he implanted the … rod. When it broke and he told Mrs. Caravaggio that there must have been something structurally wrong with the rod … there was no reason for her to be suspicious of him. “If the rulings of the trial court and the Appellate Division to the contrary were to be approved, it would have the untoward effect of pitting patients against their physicians, at a time when they have no reason to doubt their physicians, in order not to risk losing their cause of action altogether.” Justice Jaynee LaVecchia, in a dissent joined by Justice Peter Verniero, said there was enough evidence available to Caravaggio shortly after the rod snapped that she could have pursued a claim almost immediately against the doctor, the physical therapist and the rod manufacturer. LaVecchia and Verniero said the claim against D’Agostini was properly dismissed.

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