In Order to Win Case, Patient’s Family Need Not Prove That She Had Pneumonia on Day Doctor Failed to Take Chest X-ray

By Michael Zerres

All That Need Be Shown Is That X-ray Should Have Been Taken

Consistent with Supreme Court decision in Gardner v. Pawliw, 150 NJ 359 (1997), the Appellate Division on August 3, 2006 decided that the family of a 38-year-old woman who died from pneumonia need not prove that she actually had pneumonia on the days her family doctors failed to order a chest x-ray because of her upper respiratory complaints. (Koziel v. Changebridge Medical Associates, A-4486-04T2) On 1-17-01 the patient complained of right-sided rib pain while coughing, fever and chills. She went to her primary doctor at ChangeBridge Medical Associates with that history and a temperature of 102.1. Her physician thought she had the flu and prescribed flu medications. The next day she called her primary doctor again to report a temperautre of 104. She was instructed to take Motrin for the fever. On neither day was a chest x-ray ordered. On 1-21-01 she was taken to the ER where bilateral pneumonia was diagnosed. Ultimately, the woman died from the pneumonia two months later. In the decision, the Appellate Division ruled that the trial Court erred in requiring plaintiff to prove she had pneumonia on 1-17 or on 1-18. Rather, all that need be proven was that her doctors failed to take x-rays on either 1-17 or on 1-18, and, that such failure increased the risk of harm posed by the patient’s underlying condition. In other words, it would be unfair to make the plaintiff prove that the woman actually had pneumonia on 1-17 and 1-18 when, because of the doctors’ alleged errors, the very test which would have established the diagnosis was never performed. A new trial has been ordered.

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