On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication March 13, 1995.
Before Judges Pressler, Conley and Newman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
Plaintiffs appeal a jury verdict resulting in a dismissal of their medical malpractice complaint and based upon a jury finding that they had not demonstrated that defendant deviated from standard medical practice in his treatment of plaintiff, Raymond Delgaudio (hereinafter plaintiff). We conclude that the trial court erred in precluding plaintiff from using, during his examinations of defendant and defendant's experts, certain portions of the Board ofMedical Examiners' 1991 and 1993 administrative decisions in connection with defendant's license suspension and revocation. Because the focus of this impeachment evidence concerns a crucial credibility issue, the error plainly was not harmless and requires reversal.
We emphasize, however, that our ruling is quite narrow in scope. It is limited to very specific portions of the Board's decisions and limited to the use of those portions only as extrinsic evidence of impeachment pursuant to N.J.R.E. 607 and 608 and not as substantive evidence. As such, its use requires an accompanying jury instruction as to its limited consideration which, we would think, should be given by the trial Judge, at the least, upon its initial use and again in the jury charge at the end of the case. Moreover, because there are only small portions of the Board's decisions that can be used by counsel in examining the witnesses, the Board's decisions, or any other part of the administrative record, which should of course be marked for identification, should not be independently admitted into evidence. Rather, counsel should incorporate the critical portions in appropriate questions. We leave it to trial counsel to formulate such questions, but any reference to the Board's decisions must be limited to what we herein set forth. We hasten, however, to add that our ruling is based upon the record as it has been presented to us and limited to our consideration of plaintiff's examination of defendant and defendant's liability experts. Our ruling should not be read to limit further use of the Board's decisions or the relevant underlying findings in the event defense counsel, through his or her own questions, opens the proverbial door.
With those precautionary comments we commence our analysis. From 1977 to 1989, plaintiff was treated by defendant, a cardiologist. During the course of that treatment, he underwent open heart surgery for coronary artery bypass grafting and thereafter was treated with various cardiac medications. In May 1989, defendant prescribed Procan SR, a known side effect of which is hemolytic anemia. *fn1 One of the indications of such a condition can be blood in the urine. During a June 9, 1989 appointment with defendant, plaintiff claimed that he told defendant that his urine had darkened to a "rusty-brown" color.
Defendant did not have an independent recollection of the office visit and therefore relied on his medical records for that day in answering questions about what transpired during that examination. He testified that he would have recorded such a complaint and agreed with the experts that a urinalysis would have been required to ascertain the nature of the problem. No urinalysis was ever performed. Relying upon his office record of that date, defendant denied that plaintiff had complained of blood in his urine on June 9, 1989.
In late July 1989, plaintiff was hospitalized. It was determined that he had developed hemolytic anemia. Defendant admitted that plaintiff's hospitalization was caused by a side effect of the medication. The medication was immediately discontinued. However, the hemolytic anemia was so severe that before plaintiff fully recovered he was hospitalized three more times for a total of 73 days costing over $59,000.
In his malpractice complaint against defendant, plaintiff claimed several deviations from accepted medical practice in connection with defendant's treatment of plaintiff with Procan S.R. One of the alleged deviations was premised upon plaintiff's claim that he had complained of darkened urine or blood in his urine on the June 9, 1989 visit. According to plaintiff's expert, the drug should have been discontinued on that date. To be sure, not only did defendant deny that plaintiff had reported darkened urine on June 9, 1989, but his experts opined that that was impossible because blood studies performed on June 9, 1989 showed normal hemoglobin and bilirubin levels which were inconsistent with hemolytic anemia. It was however, conceded by Dr. Kramer, one of defendant'sexperts, that blood in the urine could occur before a patient becomes anemic because "just a little bit of blood looks like a lot of blood in the urine." Defendant's experts expressly acknowledged, moreover, that they relied upon the accuracy and truthfulness of the June 9, 1989 office record in arriving at their opinions.
Whether or not plaintiff complained of darkened urine on June 9, 1989, then, was plainly a critical part of plaintiff's allegations of deviation. Equally plain, the accuracy and truthfulness of defendant's office record and his say so, was a crucial credibility issue for the jury to resolve. As we have said, there are some portions of the administrative decisions at issue here which bear upon this issue.
Prior to trial, defendant had moved to preclude plaintiff's use of the Board's 1993 suspension and 1991 revocation decisions and the findings and Conclusions in connection therewith. As far as we can discern, that application was not ruled upon until after the jury was selected and sworn. At that time, plaintiff made no effort to identify or isolate any portions of the Board's decisions and the administrative record which he wished to use or identify any particular purpose for such use. In essence, he sought admission, substantively, of the entire administrative record.
Because the suspension and revocation and supporting record involved a multitude of misconduct, including sexually deviant behavior, we are not surprised at the trial Judge's denial of plaintiff's application. Without question, the suspension and revocation and general contents of the administrative record including all of the various and, aside from the record-keeping untruths and inaccuracies, unrelated instances of misconduct, are not admissible here to establish a general character trait of carelessness, lack of skill, N.J.R.E. 404(a), or other "wrongs or acts ... to prove the Disposition of a person in order to show that he acted in conformity therewith," N.J.R.E. 404(b). See Discussion of interrelationship between former Evid. R. 20, 22 and 47 in State v. Hutchins, 241 N.J. Super. 353, 361-62, 575 A.2d 35 (App. Div. 1990).
Equally clear, and limited to the record-keeping infractions, we do not believe the record is sufficient to demonstrate the record-keeping infractions are defendant's habit and custom. N.J.R.E. 406. That is, the record is not sufficient to show a "regular practice of responding to a particular kind of situation with a specific type of conduct [i.e. habitually failing to record patient complaints]". McCormick on Evidence, § 195 at 825-26 (Strong Ed., 4th ed. 1992). See State v. Kately, 270 N.J. Super. 356, 362, 637 A.2d 214 (App. Div. 1994); State v. Radziwil, 235 N.J. Super. 557, 565-66, 563 A.2d 856 (App. Div. 1989), aff'd, 121 N.J. 527, ...