The opinion of the court was delivered by: JOANNA SEYBERT
In the instant personal-injury action founded upon diversity jurisdiction, plaintiff Barbara Gilinsky brings suit against the defendant, Dr. Joseph Rosario Indelicato, alleging that his negligent conduct contributed to the injuries she sustained on September 24, 1990. The plaintiff alleges that, on that day, she suffered a stroke while under the chiropractic care and treatment of an individual named Dr. Kevin Parks. Unaware of the severity of the plaintiff's condition, Dr. Parks called the defendant for consultative advice. According to the plaintiff, the defendant's failure to recommend emergent medical treatment during a series of seven conversations with Dr. Parks, that traversed a period of approximately five hours, constituted a breach of the defendant's duty of care.
The defendant now moves for summary judgment dismissing the plaintiff's complaint in its entirety on the ground that a physician-patient relationship did not exist between the parties. For the reasons that follow, the defendant's motion is denied.
Viewed in the light most favorable to the plaintiff, the record shows that on September 24, 1990, plaintiff Barbara Gilinsky visited the office of Dr. Kevin Parks, a chiropractor in Wall Township, New Jersey. She arrived at his office at approximately 9:10 a.m. and immediately was seen by the doctor. During the preceding five years, Dr. Parks had treated Ms. Gilinsky on several occasions without encountering difficulty. On the day in question, however, Dr. Parks performed an adjustment of her neck, which precipitated an intense headache, nausea, vomiting, dizziness, a loss of balance, slurred speech, and visual disturbances.
The plaintiff's symptoms were unusual to Dr. Parks and he was greatly concerned. As such, Dr. Parks decided to telephone Dr. Indelicato to discuss the plaintiff's condition with him.
At 10:18 a.m., while the plaintiff rested with her head on Dr. Parks' desk, Dr. Parks placed a telephone call to Dr. Indelicato at his office in Commack, New York. According to telephone records, this first call lasted 9 minutes. In this call, Dr. Parks identified himself, stated that there was an emergency, and asked to speak with Dr. Indelicato. Dr. Parks told the defendant that he had a patient in his office, advised him of her vital signs and symptoms, and that the symptoms ensued after chiropractic manipulation. The defendant expressed an opinion that the plaintiff was suffering from cervical disequilibrium. He instructed Dr. Parks to perform gentle-range-of-motion testing, and to use electrical stimulation and high-volt galvanism. Dr. Parks documented the defendant's advice in his office records and followed the instructions after the first telephone call was completed. The plaintiff's speech then became noticeably slurred, and she momentarily blacked out as she rested on a sofa bed.
A second, 10-minute conversation occurred when Dr. Parks called the defendant at 11:18 a.m. During this telephone conversation, Dr. Parks updated the defendant on the case and the defendant advised him to treat the plaintiff with ultrasound. Dr. Parks followed this advice.
A third conversation occurred when Dr. Indelicato telephoned Dr. Parks at 12:25 p.m.; according to Dr. Indelicato's telephone records, this call lasted 7 minutes. During the next three hours, Dr. Parks and Dr. Indelicato spoke on four additional occasions. There is evidence that the defendant also advised Dr. Parks to take x-rays of the plaintiff's neck; at his deposition for the instant action, however, Dr. Parks could not recall whether he took the x-rays at the defendant's direction. See Pl. Ex. F, at 56-58.
According to the record, on September 24, 1990, between approximately 10:10 a.m. and 3:32 p.m., Dr. Parks and Dr. Indelicato had 7 telephone conversations lasting a total of 38 minutes. Three of these telephone calls were made by Dr. Indelicato to Dr. Parks' office. See Pl. Ex. H. The plaintiff's condition was discussed during each of these calls. Dr. Parks, however, did not inform Dr. Indelicato of the plaintiff's full five-year medical history, did not identify her by name, and did not forward any records to Dr. Indelicato for his review. In addition, while Dr. Parks followed Dr. Indelicato's advice, he acknowledged that he was free to accept or reject the proffered advice. Although Dr. Parks called Dr. Monte B. Pellmar, a medical neurologist, at approximately 2:00 p.m., at no time prior to 2:00 p.m. did Dr. Indelicato advise Dr. Parks to seek emergent neurological care for the plaintiff.
The plaintiff remained at Dr. Parks' office until a friend arrived, at approximately 3:30 p.m., to drive her to the office of Dr. Pellmar, in Freehold, New Jersey. Although the plaintiff was aware that Dr. Parks had been on the telephone during her stay at his office, had described to another person her condition, and had provided short answers such as "yes," "no," and "okay," she had no knowledge of the identity of the person with whom Dr. Parks was speaking, and indeed had never met Dr. Indelicato prior to this incident. In the days that followed, Dr. Indelicato did not bill the plaintiff for his services, or attempt to communicate with her in connection with her condition.
The plaintiff subsequently was diagnosed as having suffered a stroke during the course of her stay at Dr. Parks' office. According to the plaintiff, her injuries, many of which are permanent, could have been mitigated had she received ...