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Court reinstates medical malpractice claim dismissed after reference to missing x-rays

Sander Kalaj sued Dr. Syed Mahmood Ali Khan and Basha Diagnostics after Khan failed to diagnose Kalaj's C-5 neck fracture.  In preparing to sue, Kalaj employed another diagnostic radiologist to review the pertinent records and x-rays, and the reviewer confirmed in an Affidavit of Merit that Dr. Khan had breached the standard of care.  After suit was begun, however, it was determined that the x-rays reviewed by the Plaintiff's expert were not the x-rays Khan had referred to in making the botched diagnosis.  It turned out that Plaintiff's treating physician had signed out those x-rays during treatment and they could no longer be located.  Instead, the x-rays reviewed by plaintiffs were films taken by a chiropractor eight days after the alleged error.

The doctor's lawyers persuaded the trial court to strike Kalaj's expert's Affidavit and to dismiss Kalaj's complaint, arguing that there was no foundation for the Affidavit or the complaint because there were no original x-rays to evaluate.  Kalaj's expert maintained that he would hold the same opinion even without seeing the original films, given Kalaj's progression of symptoms and the fracture clearly visible on the nearly-contemporaneous x-rays. 

The higher court unanimously reversedthe lower court, noting that the statute requiring an Affidavit of Merit does not explicitly require the reviewing expert to analyze any particular record.  If the expert reasonably believes that he or she has evaluated enough of the chart to offer an opinion, that review will satisfy the preliminary duty of review essential to begin the lawsuit.  Beyond that, the court noted that whether the expert needed access to the original x-rays in order to form an opinion was a question of fact for jurors to decide, and the inability to review the original films was a matter of the weight to be given the expert's opinion. 

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