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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...