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DaGraca v. Laing

March 14, 1996


On appeal from Superior Court of New Jersey, Law Division, Union County.

Before Judges Michels, Baime and Villanueva. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by MICHELS, P.J.A.D.

Plaintiffs Charles DaGraca, Jr. and his wife Barbara DaGraca appeal from a judgment of the Law Division entered in favor of defendant Kevin Bell, M.D. (Dr. Bell) and from a denial of their motion for a new trial in this medical malpractice action.

The pertinent facts underlying the issues raised on appeal are easily summarized. On February 26, 1991, plaintiff Charles DaGraca, Jr., was admitted to Overlook Hospital (Overlook) after falling in his driveway. Plaintiff came under the care of Dr. Bell, his family physician, who had treated plaintiff for several years. Dr. Bell, in treating plaintiff for a pre-existing panic disorder, had prescribed a medication called Xanax for plaintiff from 1988 up until the time of his admission to Overlook in 1991. Upon plaintiff's admission to Overlook, Dr. Bell ordered that Xanax be discontinued. On March 5, 1991, after examining plaintiff, Dr. Bell believed that the symptoms exhibited by plaintiff were caused by either withdrawal from Demerol, or an adverse reaction to Proventil, two medications which had been prescribed for plaintiff. Dr. Bell discontinued the Proventil, as well as all other medication.

On March 5, 1991, plaintiff was examined by Dr. Laing, a psychiatrist called by Dr. Bell for consultation. Dr. Laing was aware of plaintiff's prior use of Xanax and that Xanax as well as all other medications had been discontinued by Dr. Bell. Dr. Laing also knew that plaintiff was disoriented and made a "differential diagnosis" that plaintiff's condition was not a primary psychiatric disorder but most likely a reaction to Proventil and less likely a withdrawal from Xanax. Dr. Laing, therefore, concurred that plaintiff's medications should be discontinued. On March 6, 1991, Dr. Laing examined plaintiff again and noted that plaintiff, while still confused, was somewhat improved and ready for discharge. He recommended that plaintiff remain off the medications.

On March 7, 1991, plaintiff's condition worsened, and he eventually developed neuroleptic malignant syndrome, seizures and a long series of medical problems, including brain damage.

Plaintiff instituted this action against Dr. Bell and Dr. Laing to recover damages for the personal injuries he sustained as a result of their alleged professional negligence/medical malpractice. Plaintiff's wife sued per quod for her loss of services and consortium. Plaintiffs charged that the abrupt cessation of Xanax had the potential to cause reactions including but not limited to anxiety, insomnia, seizures and death and that in ordering its cessation without tapering the dosage, Dr. Bell deviated from accepted medical standards in his treatment. Plaintiffs further charged that Dr. Bell negligently failed to recognize the symptoms of Xanax withdrawal exhibited by plaintiff prior to March 5, 1991, when Dr. Bell discontinued the medication. Plaintiffs also charged Dr. Laing with professional negligence/medical malpractice in failing to recognize the symptoms of plaintiff's Xanax withdrawal and in prescribing a medication called Haldol.

At the Conclusion of the proofs, the jury found that neither Dr. Laing nor Dr. Bell was negligent in the treatment of plaintiff and a judgment of no cause of action was entered accordingly in favor of both doctors. Plaintiffs' motion for a judgment notwithstanding the verdict or, alternatively, a new trial solely with respect to Dr. Bell was denied. This appeal followed. *fn1

Plaintiffs seek a reversal of the judgment and a new trial against Dr. Bell only, contending that (1) the trial court erred in precluding them (a) from using any portion of a learned treatise to cross-examine a defense expert and (b) from cross-examining Dr. Bell with respect to both his failure to record plaintiff's last seven Xanax prescriptions in his office records and his decision to give these prescriptions over the telephone, without the benefit of an office visit; and (2) the verdict in favor of Dr. Bell was against the weight of the evidence.

We are satisfied that the trial court's evidential rulings challenged on appeal were erroneous and require a reversal of the judgment and a remand for a new trial with respect to Dr. Bell only.


The trial court improperly precluded plaintiffs from using portions of a learned treatise entitled Benzodiazepine Dependence, Toxicity, and Abuse: A Task Force Report of the American Psychiatric Association, (Task Force Report), to cross-examine defendant Laing's expert witness other than those portions read into evidence by plaintiffs' own medical expert. Plaintiffs' medical expert, Dr. Latimer, a psychiatrist, testified that the Task Force Report was considered to be a reliable authority by the medical community, and that he considered it to be a reliable authority.

However, Dr. Kiev, a defense psychiatrist, when questioned regarding a portion of the Task Force Report testified that certain Conclusions reached in the report were not credible. Dr. Kiev testified that the studies cited in the articles upon which the Task Force Report is based "are not based on empirical scientific investigations prospectively where we can definitively say this is the fact." Dr. Kiev admitted, however, that he had not read the whole report, but had only read a summary of it. Dr. Kiev further testified about two separate studies which had employed a "controlled sample" in which it was found that the dose of Xanax "had to be for an extended period of time, have to be more than four milligrams to begin to get some of the ...

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