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Diakamopoulos v. Monmouth Medical Center

May 21, 1998


The opinion of the court was delivered by: Carchman, J.s.c., (temporarily assigned)

Argued - February 3, 1998

[9]    This is a medical malpractice action. Plaintiff Jill Diakamopoulos, as administrator ad prosequendum for the Heirs-at-Law of Basilica Diakamopoulos, deceased, and Jill Diakamopoulos and Theodoros Diakamopoulos, individually, *fn1 filed this action against defendants Dr. Rosemary Fernandez (Dr. Fernandez), Tamara McCluskey, M.D. and Monmouth Medical Center (Medical Center) alleging that the death of four-month old Basilica was caused by the refusal of defendants to treat her. The case was tried before a jury which awarded a verdict of $400,000 against Dr. Fernandez. *fn2 On appeal, Dr. Fernandez asserts multiple errors in the trial including, among other claims, an improper reference to her resignation from the hospital staff; improper introduction during plaintiff's counsel's summation of "evidence" not elicited at trial; and improper references during the course of the trial by plaintiff's counsel to "captain of the ship," a legal theory previously rejected by our courts. Because we conclude that there were multiple and cumulative errors throughout this trial which were clearly capable of producing an unjust result, R. 2:10-2, we reverse and remand for a new trial.


In the fall of 1989, plaintiff, who is learning disabled, contacted the Outpatient Clinic of the Medical Center (clinic) and scheduled a regular "well-baby" appointment on November 29, 1989 for her four-month old daughter Basilica. However, on November 19, 1989, ten days before her "well-baby" check-up, Basilica became ill. She suffered from diarrhea and vomiting, and as a result, plaintiff contacted the emergency room of the Medical Center requesting that Basilica be examined. Plaintiff spoke to Dr. McClusky who asked about Basilica's symptoms and then told plaintiff to bring the infant to the emergency room.

In the emergency room, Dr. McClusky examined the infant, drew blood for testing, discharged her and scheduled a follow-up visit for November 21, 1989 at the clinic. On November 21, Dr. McClusky again examined the infant, noted she had lost four ounces since the November 19 visit and told plaintiff to keep the regularly scheduled November 29, 1989 appointment.

Plaintiff asserted that Dr. McClusky told her not to call her or the clinic unless Basilica's temperature reached 105 degrees and recalled that during the November 21 visit, she informed Dr. McClusky that Basilica was still vomiting and having diarrhea. Plaintiff did not call Dr. McClusky or the clinic between November 21 and November 29 because, although Basilica's symptoms continued, her temperature never reached 105 degrees.

On November 29, 1989, the scheduled date for Basilica's regular appointment, plaintiff telephoned the clinic and inquired whether she could delay the appointment and bring in Basilica and her sister, Eleni, with their other sister, Christina, who had a scheduled appointment the next day, November 30, 1989. Plaintiff requested this change because of inclement weather on November 29 and her necessity to use a bus for transportation. A receptionist at the clinic told plaintiff that she could bring in all three children on November 30.

The rescheduling was approved and specifically noted in the clinic's appointment calendar. On November 30, 1989, plaintiff appeared at the hospital with her three children, Basilica, Eleni and Christina. In the examining room, Dr. Fernandez examined Eleni and Christina. Plaintiff insists that, following Dr. Fernandez's examination of Eleni and Christina, she requested that the doctor examine Basilica, explaining to Dr. Fernandez that the infant was ill and had an eleven-day history of vomiting and diarrhea. Despite plaintiff's protestation that she had scheduled an appointment for Basilica, she asserts that Dr. Fernandez refused to examine the infant. Plaintiff claims Dr. Fernandez cited a clinic policy that "no three children from the same family could be examined during one visit." Plaintiff testified that Dr. Fernandez stated "[w]hy does she need to be seen if she's only just been seen nine days ago?"

Plaintiff informed Dr. Fernandez that she (plaintiff) was developmentally delayed and Dr. Fernandez had indicated her knowledge of this in the medical record of Eleni, dated November 30, 1989.

Within forty-eight hours of the November 30 clinic visit, tragedy ensued as Basilica died. Her death was attributed to dehydration, pneumonia and septicemia leading to cardiac arrest. She had lost approximately twenty-three percent of her total body weight since her last weighing at the clinic on November 21, 1989.

At trial, plaintiff's expert, Dr. Norman Schell, M.D. sharply criticized Dr. Fernandez's failure to examine Basilica on November 30, 1989. Dr. Schell opined that at the time of the office visit with Dr. Fernandez on November 30, 1989, the infant had pneumonia; that the infant was dehydrated and debilitated; that this condition would have been detected by Dr. Fernandez had the infant been examined by her; and that all the organisms present in the infant were common ones, easily treatable with antibiotics in accordance with standard medical practice. According to Dr. Schell, a pediatrician and infectious disease expert, if an examination had been performed on November 30, Basilica's pneumonia would have been detected and treated, probably preventing the infant's death.

Dr. Fernandez presented a different factual scenario. She denied refusing to see Basilica during the November 30, 1989 office visit noting that at the time of the November 30 visit, she was not aware of the clinic's "no three siblings in one visit" policy. Her position was that while the clinic appointment book indicated a scheduled appointment for Basilica on November 30, 1989, this was a clerical error on the part of the clinical staff. Moreover, the doctors do not rely on the list but on the charts "pulled" for them. No chart was pulled for Basilica.

Dr. Fernandez's expert, Dr. Angelo Scotti, offered evidence purporting to establish that Basilica had gastroenteritis on November 19, 1989 that was resolved by the clinic visit of November 21, 1989. Dr. Scotti opined that Basilica was essentially healthy from November 21 until November 30 or December 1. At that time, Dr. Scotti asserts that Basilica acquired a devastatingly rapid bacterial infection, most likely through aspiration, resulting in bacterial pneumonia, which ultimately led to septicemia, the cause of death. Dr. Scotti concluded that there was no way to state with certainty that defendant Dr. Fernandez would have discovered the sickness that caused Basilica's death had he examined her on November 30.

During discovery, plaintiff sought the Medical Center's records regarding the termination of Dr. Fernandez as a resident. On a motion to bar production of the documents, the motion Judge granted the Medical Center's application except as to two portions of the record. The statements produced first described conduct attributed to Dr. Fernandez:

A number of our attending staff described your making chart entries of physical findings when you had not performed those aspects of the physical examine [sic].

and then her response:

She [Fernandez] agreed it was a mistake and she has not repeated this matter.

Nothing in the comments related to Basilica, but the motion Judge left for the trial Judge the issue of use of this information at trial. As to the balance of the documents in Dr. Fernandez's personnel file, the motion Judge commented:

The Court reviewed that which -- I'm just going to take a guesstimate which appears to be about maybe 150 to 200 pages last night. I did not see in there any documents, any statements, anything at all directly or indirectly related to the lawsuit relating to the infant child, Diakamopoulos. . . .

And therefore, I am not going to order that those documents be made available to you, with relating this case.

The only exception to that was in a report by a supervisor to Dr. Fernandez dated January 23rd, 1990, and there is a reply by Dr. Fernandez, to a statement in that report, at her hearing on whether she would be renewed or not, of May 1, 1990, which related to Dr. Fernandez placing into a chart a notation relating to an examination of a head, eye, ear, nose and throat child, when in fact she may not have in fact made that examination or, made the entry before the examination itself was performed.

[Emphasis added]

At trial, defendants successfully moved to have these two remaining statements excluded from trial. In ruling the statement inadmissible, the trial Judge stated:

Okay. You can only fine tune a case so much but this cries out for some fine tuning. Number one, you have a jury sitting here who's going to be deciding whether or not on a prior time the doctor made a charting error and agreed that she made a mistake. So right off the bat you're talking issues of relevancy, has absolute nothing to do with this case at all.

Prior bad conduct cannot be used to show bad conduct here or malpractice here. And despite counsel's assertions, . . . that's exactly why it's being offered, to show that the prior bad conduct has a tendency to repeat itself and therefore that's what must have happened here, leading to jury speculation.

I think it's admissible. I think it's irrelevant and if I'm wrong, I'm going to exercise my discretion under Rule 403 to exclude it, even if it can be deemed by another Court to be relevant. Why? Because it's going to lead to a trial within a trial.

The jury would have a tendency to be confused by the prior bad act. It would lead the jury to inappropriate speculation and again, not to repeat, but if another Court disagrees with my decisions with respect to relevancy, I'm going to exercise my trial discretion to exclude it as confusing to the jury. That's always within the discretionary powers of the trial Judge.

It's too collateral to the issues here in this case and it's going to lead, as I said before, to a trial within a trial. And we're going to be talking about that prior mistake more than what happened in this case. . . . I'm not going to permit it.

[Emphasis added]

Despite the trial Judge's explicit ruling that the statements were inadmissible, and the motion Judge's order that the statements, and impliedly Dr. Fernandez's termination, were not related to the lawsuit, the following exchange took place during plaintiff's counsel's questioning of Dr. Fernandez:

PLAINTIFF'S COUNSEL: Okay. Doctor, shortly after this incident, you were asked to resign from the hospital by Dr. Fox, were you not? (emphasis added)

DEFENSE COUNSEL: Note my objection, Your Honor. Side bar.

Let's go. (side bar conference)

I've already ruled on this.

PLAINTIFF'S COUNSEL: No, no, no, no. This, wait a minute. She admitted this during the deposition.


PLAINTIFF'S COUNSEL: This is not information that was, --

It doesn't matter. I'm sustaining the objection.

DEFENSE COUNSEL: I want a direction, Your Honor, to the jury.

You're going to have it.

DEFENSE COUNSEL: And I'll bid for a mistrial on the record.

It's denied. I'm going to cure it.

PLAINTIFF'S COUNSEL: Your Honor, this was, she doesn't deny it. I mean, this is not, this is --

I'm sorry


I'm not permitting it.

PLAINTIFF'S COUNSEL: This is to be distinguished ...

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