On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4726-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Plaintiff L. Richard Harris*fn1 appeals from a no-cause verdict in his medical malpractice case in favor of defendant, Dr. Paul H. Reyes, an emergency care physician at Salem Hospital. He challenges various rulings of the trial court and its subsequent denial of his motion for a new trial. We examine, among other items, the court's admission, over objection, of testimony by defendant and his expert as to the content of defendant's telephonic conversation with a non-testifying consulting neurologist. We reverse and remand for a new trial.
On January 8, 2006, plaintiff filed a medical malpractice action against Dr. Reyes and Salem Hospital relative to treatment during his stay in the emergency room after having presented with signs of an apparent ischemic stroke, specifically, the doctor's decision not to administer tissue plasminogen activator (TPA), a clot-busting drug thought to minimize post-stroke neurologic deficits. Plaintiff thereafter filed an amended complaint to include as an additional defendant Dr. Thomas Mueller, a neurologist at Christiana Hospital with whom Dr. Reyes consulted telephonically during plaintiff's stay and purportedly suggested that TPA not be administered.*fn2
Responsive pleadings were filed by all defendants. By orders of April 30, 2007 and March 7, 2008, summary judgment was granted in favor of Salem Hospital and Dr. Mueller, respectively.
Plaintiff filed a motion in limine to bar as hearsay reference to the substance of Dr. Reyes' telephone conversations with Dr. Mueller and Dr. Greenberg, plaintiff's family doctor.*fn3
The court denied the motion during trial on March 11, 2009, memorialized in an order of the same date.
During opening argument by defense counsel, in which he referred to purported statements made by Dr. Mueller during the telephone conversation, plaintiff objected and moved for a mistrial, but the motion was denied. After closing arguments in the multi-day trial, the court granted plaintiff's motion to conform the pleadings to the evidence pursuant to Rule 4:9-2.
The court denied plaintiff's request to give a jury instruction on informed consent and on alteration of medical records and inaccurate medical records. The jury entered a verdict in favor of defendant, finding plaintiff failed to prove by a preponderance of the evidence that the doctor deviated from accepted standards of medical practice. On March 17, 2009, the court entered an order for no cause, dismissing plaintiff's claims against defendant with prejudice. By order of May 28, 2009, the court denied plaintiff's motion for a new trial. This appeal ensued.
On appeal, plaintiff argues the court committed reversible error, warranting a new trial by: (1) denying plaintiff's in limine motion to exclude inadmissible hearsay statements pertaining to his complex medical diagnosis and medication needs; (2) failing to instruct the jury on informed consent and alteration of medical records; (3) denying plaintiff's motion to admit into evidence the relevant TPA policy of the hospital; and (4) denying plaintiff's mistrial motion during defense counsel's opening statement. Based on our review of the record and applicable law, we reverse and remand for a new trial based on the court's admission of inadmissible and prejudicial hearsay evidence.
The following testimony and evidence was adduced at trial. On March 25, 2005, at about 7:00 p.m., seventy-two-year-old plaintiff experienced right side neurologic deficit symptoms consistent with a stroke. He arrived at the Salem Hospital emergency room by ambulance at approximately 7:55 p.m. Plaintiff became defendant's patient in the emergency room and remained his patient until plaintiff's transfer to Cooper Hospital in Camden at l2:45 a.m. the next day. The paramedics who transported plaintiff had called defendant shortly after arrival at plaintiff's home to advise that the patient had complete paralysis of the right side but en route they advised the doctor that the patient was improving. According to Donna Gardiner, plaintiff's primary care nurse, during her physical examination upon admission, she noted that plaintiff had feeling in his right arm but no movement, and feeling and movement in both of his legs was equal.
Defendant examined plaintiff and ordered lab studies and a CT scan, which all the experts agreed were appropriate and timely ordered. Based on the CT scan results, which were available at about 8:45 p.m., defendant diagnosed plaintiff as suffering from an ischemic stroke, as opposed to a hemorrhagic stroke, because there was no bleeding inside plaintiff's brain.
This case involves what ultimately occurred afterwards and whether the drug TPA should have been administered to plaintiff. Plaintiff contended defendant committed malpractice in deciding not to administer TPA, which resulted in plaintiff's right arm paralysis. Defendant's position at trial was that he consulted with Dr. Mueller by phone shortly after making the diagnosis. Plaintiff's primary evidentiary challenge on appeal involves defendant relating to the ...