On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Before Judges Michels, Stern and Humphreys.
The opinion of the court was delivered by
Defendants Community Medical Center, Angela Pellegrina, Marilyn Clayton and Patricia Meyers appeal from a judgment in favor of plaintiff Edward Nowacki as executor of the estate of Mary Nowacki,*fn1 awarding damages in the amount of $297,500. The jury found that Pellegrina was 15% liable; Clayton 10% liable; Meyers 20% liable and the Center 55% liable. The Center's liability was limited to $10,000 pursuant to N.J.S.A. 2A:53A-8 as it provided when the cause of action accrued, and a molded judgment in the amount of $188,563.12, including prejudgment interest, was entered.
Defendants seek a reversal and entry of judgment in their favor. Alternatively, they seek a new trial or remittitur of damages. Defendants contend, generally, that the trial court abused its discretion in redacting portions of hospital records relating to plaintiff and in excluding expert testimony concerning those records; in barring them from calling the treating physicians and the physicians who prepared the redacted portions of the hospital records; and in preventing them from cross-examining plaintiff's expert with regard to medical records which he reviewed in preparation for his report. Defendants also assert that the verdict should be reversed because there was no testimony by which the jury could determine the applicable standard of care; the trial court denied them a fair trial; the verdict was excessive and against the weight of the evidence; and the cumulative impact of errors denied them a fair trial.
Plaintiff commenced this case seeking damages for injuries sustained as a result of a fall she suffered while undergoing radiation treatment at the Center. She fell while attempting to lift herself onto the treatment table. She claims that she sustained broken bones in her left arm (humerus) and right leg (femur) as a result of the fall. The essence of the dispute centers around plaintiff's claim of negligence, and defendants' assertion that plaintiff suffered pathological fractures independent of the fall. A pathological fracture may result from metastasis to the bone. Movement of the weakened bone can cause such a fracture even in the absence of trauma.
Plaintiff underwent a radical mastectomy in 1987. She received radiotherapy and chemotherapy treatment thereafter and developed a progressive and diffuse metastatic condition. She entered the hospital on October 17, 1989, and commenced radiation treatment on October 23, 1989. In plaintiff's depositions admitted into evidence at trial, she testified that there were no handles on the radiation table or stool used on October 24, 1989, and that she fell while trying to lift herself onto the table. Radiation therapists were standing near her at the time, and there was some question as to whether Pellegrina had her hand on plaintiff's back. The therapists apparently observed plaintiff experience no difficulty before the fall. As a result of the fractures, plaintiff's radiation therapy was terminated because it would prevent healing of the fractures. An open reduction could not be conducted because of plaintiff's heart condition, but a pin was placed in her right leg by Dr. Ralph Kuhn, an orthopedist. She was placed in casts and traction before discharge on February 9, 1990. She died on April 26, 1990.
On the first day of trial plaintiff successfully moved to exclude from evidence proofs relating to a later pathological fracture sustained by plaintiff on January 9, 1990. As a result it was stipulated that damages would be limited to the period before that fracture. The jury was instructed that because of plaintiff's "other problems" as described in the hospital records, "the only damages for which she can collect . . . are those damages resulting from the fractures from October 24th, 89 to January 10th, 90."
The trial Judge redacted from hospital records admitted into evidence all references to the diagnosis of pathological fracture and the cause of the fractures. She also precluded the defense expert (who did not prepare the reports) from testifying regarding these portions of the records. Defendants insist that statements included within hospital records were admissible at the time of trial, and that our amended Rules of Evidence support that Conclusion.*fn2 See Evid. R. 63(13); N.J.R.E. 803(c)(6) which is expressly made "subject to Rule 808."
RULE 808. EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT ADMISSIBLE UNDER AN EXCEPTION
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial Judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
N.J.R.E. 808 was not in effect at the time of trial, but there is little doubt that its principle was an established part of our jurisprudence at that time. See State v. Matulewicz, 101 N.J. 27, 30, 499 A.2d 1363 (1985); Biunno, Current N.J. Rules of Evidence, quoting 1991 Supreme Court Committee Comment on N.J.R.E. 808. While "routine" findings of medical experts contained in medical records were admissible as business records under Evid. R. 63(13), such findings were to be excluded if they were 'diagnoses of complex medical conditions." Matulewicz, supra, 101 N.J. at 32 n.1 (citation omitted), citing Lazorick v. Brown, 195 N.J. Super. 444, 451, 480 A.2d 223 (App. Div. 1984) and Gunter v. Fischer Scientific American, 193 N.J. Super. 688, 694, 475 A.2d 671 (App. Div. 1984). See also Theer v. Philip Carey Co., 133 N.J. 610, 628-30, 628 A.2d 724 (1993); Clowes v. Terminix Intern., Inc., 109 N.J. 575, 598, 538 A.2d 794 (1988); State v. Martorelli, 136 N.J. Super. 449, 454, 346 A.2d 618 (App. Div. 1975), certif. denied, 69 N.J. 445 (1976). Thus, at the time of trial, as now, it was clearly established that medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question.
While there are cases supporting the admission of physical findings pursuant to the business records exception to the hearsay rule, see State v. Gardner, 51 N.J. 444, 461-62, 242 A.2d 1 (1968); Falcone v. New Jersey Bell Telephone Company, 98 N.J. Super. 138, 148, 236 A.2d 394 (App. Div. 1967), certif. denied, 51 N.J. 190 (1968); Webber v. McCormick, 63 N.J. Super. 409, 416, 164 A.2d 813 (App. Div. 1960), the Court in Matulewicz made clear that it is "the degree of complexity of the procedures utilized in formulating the Conclusions expressed in the [expert's] report" which determines whether it is too complex to be admitted under the business records exception. Matulewicz, supra, 101 N.J. at 30. See also Biunno, Current N.J. Rules of Evidence, quoting 1991 Supreme Court Committee Comments on N.J.R.E. 803(c)(6), 808.
Plaintiff's expert, Dr. Floyd Krengel, an orthopedist, viewed the depositions, hospital records, reports and x-rays, and concluded that the fall caused the fractures. He testified that, in his opinion, "in attempting to climb to the treatment table, [plaintiff] fell backwards" which "caused . . . the bones to break" and that "the fractures resulted from the trauma of the fall." He further testified that "X-ray studies were done which revealed the fractures." Without reference to specifics, defendants were permitted to develop on cross-examination that Dr. Krengel disagreed with the diagnosis and "description as to the cause of the fracture" as provided in the radiologists' reports and the discharge summary. At the Conclusion of his testimony, the doctor also testified that the opinions he expressed "involve difficult matters of interpretation" and that his testimony related to the "diagnosis of complex medical conditions."*fn3
Thus, the trial Judge did not abuse her discretion by excluding portions of the hospital records in which non-testifying physicians concluded that the fractures suffered by plaintiff from her fall were "pathologic" or "non-traumatic." The records involved a complex diagnosis involving the critical issue in dispute, as opposed to an uncontested diagnosis or insignificant issue. This is not a case like Blanks v. Murphy, 268 N.J. Super. 152, 164, 632 A.2d 1264 (App. Div. 1993), where "the included hearsay to which plaintiff objected was a straightforward observation of a treating physician." See also Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92, 599 A.2d 528 (App. Div. 1992) (no abuse of discretion for exclusion under Evid. R. 63(12) of statement to treating physician of cause of fall in the absence of testimony about relevance of cause to diagnosis or treatment); Biunno, Current N.J. Rules of Evidence, Comment to N.J.R.E. 808. Moreover, there were some questions raised in the record as to the meaning of the word "pathological" as used in the reports. There was legitimate concern expressed as to whether the diagnosis of pathological fracture, as used in the various reports, referred to the cause of the injury or to its impact on plaintiff's condition. See Bernard S. Maloy, M.D., Medical Dictionary for Lawyers (2d ed. 1951).
Because the redacted portions of the records were not admitted into evidence, defendants could not refer to them as material or data upon which the defense expert relied. Defendants claim that the exclusion of such evidence also warrants reversal. It is true that under the 1982 amendment to Evid. R. 56(2) an expert could rely on ...