On appeal from Superior Court, Law Division, Middlesex County.
Antell, Ashbey and Stein. The opinion of the court was delivered by Antell, P.J.A.D. A.m. Stein, J.A.D., concurring in part and dissenting in part.
[241 NJSuper Page 110] In this medical malpractice action plaintiffs appeal from a jury verdict in favor of defendant Dr. Gielchinsky (defendant), claiming that the result below was caused by the trial misconduct of opposing counsel and erroneous evidence rulings by the trial court. The complaint was dismissed as to defendant
hospital before trial. Defendant cross-appeals from the trial court's denial of his motion to dismiss which was made on the grounds that the complaint was barred by the statute of limitations and that plaintiff had failed to make a prima facie case of malpractice.
On April 14, 1982, defendant performed an aortic valve replacement and a coronary bypass operation on plaintiff in the Newark Beth Israel Hospital. As part of the procedure defendant attached a pacemaker together with five epicardial wires within the plaintiff's chest. The pacemaker and two of the wires were removed after the surgery. During the weeks following the operation plaintiff developed a chest wall infection which defendant unsuccessfully treated, first with antibiotics and then surgically by opening and draining the wound. Around July 10, 1982, plaintiff was released as an outpatient and continued taking antibiotics for the infection. However, the wound did not fully heal and, despite recourse to stronger antibiotics, by September 21, 1982, it appeared to have worsened.
Defendant performed a third operation on November 9, 1982, to remove pus, cleanse the wound and take a culture of the infected tissue. Defendant did not succeed in eliminating the infection.
In September 1983 plaintiff entered the Perth Amboy General Hospital for treatment of an unrelated urological problem. While there Dr. Sarkarias performed exploratory surgery on plaintiff's chest and removed the three epicardial pacemaker wires that had been left in plaintiff's chest after the surgery in April, 1982. Thereafter the condition cleared up.
In bringing this action, plaintiff alleged that defendant's malpractice lay in failing to remove the epicardial wires and in failing later to take proper cultures from the site of the infection to determine its etiology. Plaintiff contends this would have revealed that a foreign body was the causative factor. The defense, evidently believed by the jury, was that
the decision not to probe for the three epicardial wires involved the exercise of medical judgment, that to have done so would have posed the risks of injury by spreading the infection and inducing uncontrollable bleeding. Defendant further asserted that the area of infection was not within the operative field and that it was not his responsibility, but the responsibility of the attending physician, to take the cultures.
Plaintiff first contends that he was prejudiced by remarks which defendant's counsel made in his opening statement. Counsel told the jury that the senior partner in the firm representing plaintiff had served as best man at the wedding of Dr. Silva, the physician who was expected to testify as an expert witness on behalf of plaintiff. The statement was objected to the following day when plaintiff's attorney informed the court that it was not the senior partner in her firm who had served as best man, but a former associate of the office. The subject was introduced by defense counsel in the belief that it would be relevant to an appraisal of Dr. Silva's credibility as a witness. The trial court immediately called counsel's mistake to the attention of the jury and instructed the jury that since the relationship never existed the offending remark should not even be considered in its deliberations. The situation, which, parenthetically, we deem innocuous, was promptly dealt with by the trial judge's immediate instruction to the jury and we conclude that defense counsel's statement was not capable of impairing plaintiff's right to a fair trial. See State v. Winter, 96 N.J. 640, 647, 477 A.2d 323 (1984).
Prior to trial plaintiff was sent by his predecessor attorney to the office of Dr. Frederic F. Primich for an expert opinion as to defendant's alleged malpractice. Dr. Primich reported to counsel that the epicardial wires were not in the operative field during the valve replacement operation and that it would have been an error in judgment for defendant to have removed them. In some way, not shown by the evidence, defense counsel came into possession of Dr. Primich's report and thereafter produced
him to testify as an expert on defendant's behalf. Plaintiff now argues that since Dr. Primich had been initially consulted by plaintiff, the court erred in permitting defendant to utilize Dr. Primich's expert testimony in his defense.
The question posed was considered in Cogdell v. Brown, 220 N.J. Super. 330, 531 A.2d 1379 (Law Div.1987), under materially comparable circumstances. It was there concluded, after a survey of the authorities, that the interests of truth outweighed any expectation of allegiance a party might have in consulting a prospective expert witness in preparation for trial, and that "[n]o party to litigation has anything resembling a proprietary right to any witness's evidence." Id., at 334, 531 A.2d 1379. See also Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (Law Div.1987). Neither Serrano v. Levitsky, 215 N.J. Super. 454, 521 A.2d 1377 (Law Div.1986), nor Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (Law Div.1984), are to the contrary. Both of those malpractice cases dealt with attempts by defendants to present opinion evidence by plaintiffs' treating physicians on the liability aspects of the cases, and the particular circumstances there presented would have allowed such testimony to work unfairly to the disadvantage of the plaintiffs.
Plaintiff argues that since he did not intend to call Dr. Primich as a witness the doctor's report was not discoverable under R. 4:10-2(d)(3), and that the doctor's ...