June 18, 2007
JANET V. CALLEA, AS EXECUTRIX OF THE ESTATE OF JOSEPH CALLEA, DECEASED, AND JANET V. CALLEA, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
ROBERT A. SAPORITO, JR., M.D., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9870-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 13, 2007
Before Judges Coburn, Coleman and Gilroy.
Plaintiff Janet V. Callea, as the surviving spouse and Executrix of the Estate of Joseph Callea, her deceased husband, filed a wrongful death and survival action, asserting medical malpractice against defendant Robert A. Saporito, Jr., M.D., Michael B. Kesselbrenner, M.D., and Garden State Cardiology.*fn1 The action was filed against defendant, an interventional cardiologist, after plaintiff's husband suffered a myocardial infarction and died in defendant's office while undergoing a nuclear stress test on April 11, 2002.*fn2 On December 6, 2005, the jury returned a verdict of no-cause of action in favor of defendant, determining that plaintiff had failed to prove that "defendant deviated from accepted standards of medical practice." A confirming order was entered on December 19, 2005. Plaintiff appeals; and we affirm.
On appeal, plaintiff argues:
BARRING COUNSEL FOR PLAINTIFF FROM CROSS-EXAMINING DR. SAPORITO ON AN ADDITIONAL PAGE OF [AN] EKG STRIP THAT WAS DISCOVERED DURING THE TRIAL TO HAVE BEEN ADDED TO HIS OFFICE RECORDS WAS REVERSIBLE ERROR THAT WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.
A. A PARTY'S FAILURE TO AVAIL HERSELF OF RELIEF FROM DISCOVERY VIOLATIONS THAT MAY BE OBTAINABLE VIA RULE 4:24-2 DOES NOT SERVE TO LIMIT THE EXTENT OF CROSS-EXAMINATION OF A PARTY AT THE TIME OF TRIAL.
B. TUCCI V. TROPICANA CACINO & RESORT, INC., 364 N.J. SUPER. 49 (APP. DIV. 2003), AND ITS PROGENY DO NOT STAND FOR THE PROPOSITION THAT DOCUMENTS THAT ARE THE SUBJECT OF A DISCOVERY VIOLATION OF SOME CANNOT BE USED FOR CROSS-EXAMINATION PURPOSES AT THE TIME OF TRIAL AGAINST THE PARTY RESPONSIBLE FOR THE DISCOVERY VIOLATION UNLESS THE CROSS-EXAMINING PARTY FILED A MOTION FOR SANCTIONS BECAUSE OF SAID DISCOVERY VIOLATIONS PRIOR TO TRIAL.
C. ABSENT EXTRAORDINARY CIRCUMSTANCES, EVIDENCE OF INTENTIONAL ALTERATION OR DESTRUCTION OF MEDICAL RECORDS BY A PHYSICIAN ACCUSED OF MALPRACTICE SHOULD NOT BE EXCLUDED UNDER N.J.R.E. 403.
D. EVIDENCE OF ALTERATION OF MEDICAL RECORDS REQUIRES THE JURY TO BE CHARGED WITH MODEL CIVIL JURY CHARGE 5.36H. ALTERATION OF MEDICAL RECORDS.
E. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO BAR COUNSEL FOR PLAINTIFF FROM CROSS-EXAMINING THE DEFENDANT PHYSICIAN ABOUT THE ALTERATION TO HIS OFFICE CHART IN TRIAL OF THIS MATTER.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT DEFENDANT'S LIABILITY AND CAUSATION EXPERT, STEPHEN GUSS, M.D., TO TESTIFY TO OPINIONS THAT WERE BEYOND THE SCOPE OF HIS TWO REPORTS AND HIS DEPOSITION.
A. FOR TRIAL TESTIMONY, AN EXPERT'S OPINION MAY BE PROPERLY LIMITED BY THE COURT TO THE OPINIONS CONTAINED IN THE EXPERT'S REPORT AND DEPOSITION ALONG WITH LOGICAL PREDICATES FROM THE AFORESAID OPINIONS.
B. EXPERT TESTIMONY MAY ALSO BE EXCLUDED BECAUSE IT CONFUSES THE ISSUES OR IS MISLEADING TO THE JURY, PURSUANT TO N.J.R.E.  403.
C. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT DEFENDANT'S LIABILITY AND CAUSATION EXPERT TO TESTIFY ABOUT A 30[%] CHANCE OF SURVIVING A CARDIAC ARREST IN THE HOSPITAL OVER THE OBJECTION OF COUNSEL FOR PLAINTIFF.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO CHARGE THE JURY WITH THE INSTRUCTIONS ABOUT APPORTIONING THE RESPONSIBILITY FOR THE DEATH OF JOSEPH CALLEA BETWEEN HIS PRE-EXISTING CONDITION AND THE DEVIATION FROM THE STANDARD OF CARE OF THE DEFENDANT WHEN THERE WAS NO EVIDENCE PRESENTED THAT WOULD ALLOW A JURY DECIDE SUCH APPORTIONMENT.
A. IN AN INCREASED RISK OF HARM FROM A PRE-EXISTING CONDITION MEDICAL MALPRACTICE CASE, IT IS DEFENDANT'S BURDEN TO APPORTION THE ULTIMATE HARM BETWEEN THE PRE-EXISTING CONDITION AND THE DEFENDANT'S NEGLIGENCE.
B. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CHARGING THE JURY ON APPORTIONMENT OF THE ULTIMATE HARM BETWEEN THE PRE-EXISTING CONDITION AND DEFENDANT'S NEGLIGENCE AND HAVING AN APPORTIONMENT INTERROGATORY ON THE VERDICT SHEET.
We have considered plaintiff's arguments in light of the record, briefs, and the applicable law and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comment.
Plaintiff argues that the trial judge improperly restricted her from cross-examining defendant concerning an alleged alteration to one of the pages of his office records containing the electrocardiogram strips (EKG strips) that resulted from the April 11, 2002 stress test. Prior to deposing defendant for the second time on June 15, 2004, plaintiff had received copies of defendant's office records concerning the April 11, 2002 stress test. Fourteen of the pages containing the EKG strips were numbered one through eleven, and thirteen through fifteen. None of the pages were labeled with the number twelve. During the deposition, defendant was asked who had placed the numbers on the pages, and he replied that he did not know. At trial defendant provided plaintiff with his original office records, including those from the April 11, 2002 stress test. A review of the records disclosed that page twelve of the EKG strips now had a number twelve placed in the corner of the page similar to the others, completing the sequence of the numbered pages from one through fifteen. A comparison of the original document to the copy defendant had received during discovery did not contain any other alterations or amendments other than the placement of the number twelve in the corner of the document. Plaintiff contends that the trial judge erred in prohibiting her from cross-examining defendant concerning the alteration of the office record. We disagree.
A careful review of the trial record fails to disclose any evidentiary ruling by the judge prohibiting plaintiff from cross-examining defendant concerning his office records, including page twelve of the EKG strips from the April 11, 2002 stress test. The judge correctly declined to take possession of defendant's office records and properly denied plaintiff's request to cross-examine defendant concerning an October 2002 letter defendant had received from the State Board of Medical Examiners, reminding him of his obligation to forward decedent's medical records to plaintiff's counsel. However, the judge did not restrict plaintiff from using any other office record during cross-examination. In fact, the judge agreed with plaintiff that the page twelve "discrepancy" was for the jury to consider in determining defendant's credibility.