On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2645-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Simonelli.
In this medical malpractice action, a jury returned a verdict of no cause against defendant George T. Bennett, a chiropractor.*fn1 Plaintiff Stephen Romeo appeals from the order of October 6, 2006, denying his motion for a new trial. He contends the trial judge erred in denying the motion because (1) Bennett changed his testimony about a central issue in the case relating to whether he saw an abnormality on a thoracic x-ray taken on November 15, 2000; and (2) Bennett's chiropractic expert, Anthony F. Calzaretto, D.C., gave surprise testimony that he had reviewed the thoracic x-ray prior to issuing his reports and saw no abnormality. We reject these contentions and affirm.
Bennett treated Romeo for injuries sustained in an auto accident.*fn2 On November 15, 2000, Bennett took and reviewed x- rays of Romeo's cervical, thoracic and lumbar spines. In a report, dated November 19, 2000, Bennett concluded the x-rays showed, among other things, cervical, thoracic, lumbar and pelvic malposition, but there was "no evidence of clinical pathology." However, it was later determined the thoracic x-ray revealed an abnormality: an increased density surrounding the heart evidencing cardiac enlargement, later diagnosed as Stage IV-B Hodgkin's lymphoma.
Romeo alleged that Bennett deviated from accepted standards of chiropractic care and treatment by failing to properly read the thoracic x-ray, which revealed the abnormality, and by failing to refer him to a family physician or radiologist for follow-up treatment. Romeo claims that as a result of the deviation, there was an eight-month delay in diagnosis and treatment, resulting in the disease progressing to a more advanced stage requiring more intense treatment, and in a more remote chance of cure.*fn3
Bennett was deposed on April 15, 2004. Prior to that time, Calzaretto had reviewed all of the x-rays and stated in a report, dated March 26, 2003, as follows:
In view of the x-rays forwarded to my attention, I see no evidence of any gross soft tissue or skeletal abnormalities that would directly indicate caution in [pursuing] [c]hiropractic treatment. Nor do I view any indication for a referral to a specialist for pathological disorders since none are visualized.
This report was not provided to Romeo's counsel.
Calzaretto later reviewed the case file, and issued a report, dated November 6, 2003, noting that Bennett had "performed x-rays of the cervical, thoracic and lumbar region finding no evidence of clinical pathology," and opining that Bennett "followed the customary and reasonable treatment parameters dictated by his state license." The doctor specifically noted that he had reviewed Bennett's November 19, 2000 report (where Bennett reported he found "no evidence of clinical pathology").
Romeo's chiropractic expert, Edwin F. Barry, D.C., issued a report, dated November 5, 2004, opining that the thoracic x-ray revealed a large density which would "lead a reasonable examiner to conclude, minimally, . . . the existence of cardiac enlargement[,]" and which "should have motivated the clinician to at least suspect the existence of some underlying pathophysiological condition." Barry concluded that Bennett's failure "to observe and note this abnormality," and "failure to make the appropriate referral," "constitute[d] a deviation from what would be considered a reasonable degree of skill and care in attending to this particular patient."
After reviewing Barry's report, Calzaretto again reviewed all of the x-rays, and issued another report, dated October 19, 2005, acknowledging that the thoracic x-ray revealed an enlarged heart. However, he opined that Bennett did not deviate from the accepted standard of chiropractic care because the doctor treated Romeo structurally, the x-rays assisted Bennett "in determining [Romeo's] neuromusculoskeletal injuries," and "[t]he radiographic structural analysis performed by [Bennett] in conjunction with the history and clinical evaluation findings supports the diagnostic and treatment program that [Bennett] had imposed."
Calzaretto was never deposed. By the time Bennett was deposed, he knew the thoracic x-ray showed an enlarged heart and mass, and that Romeo had been diagnosed with Stage IV-B Hodgkin's lymphoma. Thus, he testified in hindsight about what the x-ray revealed. However, as to what he observed on November 15, 2000, Bennett testified as follows:
Q: Have you had a routine over the years that you've been practicing chiropractic as to what you would do if you observed one of these tumors that you were taught about in chiropractic school on a chest x-ray?
A: If I saw something that appeared to be cancer or something that needed further treatment, I would -- if it happened, I would have referred the patient to their family physician to further review the picture.
Q: Okay. Let's . . . try to make sure we're on the same page here. Right. For the moment, I just asked you to point to the heart and you've done that. Can you describe in words what you're pointing to?
A: It's a lighter structure in the middle of the chest x-ray.
Q: That's something that I've asked you to describe for me today. Is that something, the heart something that you would routinely have at least recognized as you would have been viewing these films back in November of 2000?
Q: Okay. Just so I understand that, . . . do you see any white in the lung fields on either the left side or the right side?
A: There's -- there is a gray area on the left side.
Q: Okay. Would you point that out to me?
Q: All right. Is that area something which is present in symmetry on the right side?
Q: That is something that you certainly notice as you are here today. Do you know whether or not that's something you would have noticed back in November of 2000?
A: In November of 2000, I would have thought that was part of the heart.
Q: And you described before an area of gray on the left side; is that correct?
Q: And you indicated that you believed that area of gray on the left side in its entirety would also be the heart?
Q: Taking into consideration his age, would this be an average size heart or typical heart or ...