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Palmisano v. Pear

December 19, 1997

BEVERLY PALMISANO AND ARMAND PALMISANO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
EDWIN J. PEAR, M.D., DEFENDANT, AND LEONARD NICOSIA, M.D., DEFENDANT-RESPONDENT.



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

Approved for Publication December 19, 1997.

Before Judges Havey, Landau and Newman. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by

HAVEY, P.J.A.D.

In this medical malpractice case, plaintiffs appeal from a judgment entered on a no-cause verdict in favor of defendant, Leonard Nicosia, M.D.

In her complaint, plaintiff Beverly Palmisano (plaintiff) claims that Dr. Nicosia, a gynecologist, deviated from accepted medical standards of care in failing to refer her to a specialist for a biopsy after palpating a lump on her breast in March 1990. *fn1 The jury found no deviation and returned a verdict in defendant's favor.

The thrust of plaintiff's contention on appeal is that the trial Judge erred in excluding from evidence a medical history given by her on December 8, 1990 to a breast specialist who ultimately diagnosed cancer in both of plaintiff's breasts. In that history, plaintiff stated that Dr. Nicosia had "felt" a lump on her breast nine months earlier. Plaintiff argues that the history was admissible under N.J.R.E. 803(c)(4) as necessary for the proper diagnosis and medical treatment of her disease. Alternatively, she claims that the statement was admissible under N.J.R.E. 607 and N.J.R.E. 803(a)(2) to support her credibility because defendant had implied recent fabrication. We reject the contentions and affirm.

Plaintiff testified that she was examined in February 1989 by Dr. Nicosia's partner, defendant Dr. Edwin Pear. *fn2 Plaintiff complained of vaginal bleeding. A routine breast examination detected no abnormalities. A subsequent baseline mammogram conducted on May 5, 1989, revealed calcification on plaintiff's right breast which appeared to be benign.

According to plaintiff, she saw Dr. Pear again in January 1990 after feeling a lump on her left breast. She testified that Dr. Pear performed a breast examination, but felt no lump. However, he sent her for another mammogram. A February 1, 1990 mammogram indicated a normal left breast with benign calcification in the right breast, with no change in density from the previous film. A six-month follow-up examination was recommended for the right breast.

Plaintiff was examined by Dr. Nicosia on March 26, 1990. She claimed she told Dr. Nicosia that she had previously reported the lump on her left breast to Dr. Pear. According to plaintiff, Dr. Nicosia felt the lump and said, "oh, that's nothing to worry about. You just have wacky breasts. Don't worry about it." Plaintiff testified that after this examination she talked with Dr. Nicosia on many occasions by phone about her vaginal bleeding and the lump on her breast.

At plaintiff's request, her May 5, 1989 and February 1, 1990 mammograms were sent by Dr. Nicosia to Dr. Mitchell Bernstein, a breast specialist. Dr. Bernstein examined the films and agreed with the radiologist's findings and the recommendation that a follow-up mammogram be performed.

In July 1990, plaintiff was taken to a hospital emergency room for excessive vaginal bleeding. She was examined by Dr. Nicosia, who recommended a complete hysterectomy. She testified that Dr. Nicosia again checked her left breast for a lump and told her it was "nothing." The hospital record notes that a breast examination was performed, which was normal. There is no indication in the record, however, that plaintiff had complained of a lump. During her hospitalization, Dr. Nicosia performed the hysterectomy.

Plaintiff testified that, on August 31, 1990, during a post-operative visit, Dr. Nicosia examined plaintiff and again told her that she had "wacky breasts." Troubled by the doctor's observation, plaintiff underwent a mammogram with ultrasound on December 5, 1990. This mammogram revealed an increase in density of tissue and lesions on the ...


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