On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9836-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Plaintiffs, Diana Franco as administrator ad prosequendum of the estate of Michael Franco, Jr. and Diana Franco and Michael Franco, individually, appeal an April 19, 2010 order of judgment in favor of defendants Richard G. Binetti, M.D. and Jared Sullivan, M.D. and a June 21, 2010 order denying plaintiffs' motion for a new trial in their obstetrical malpractice action. On appeal, plaintiffs argue that the judge erred in admitting evidence of two prior disciplinary actions against Barry Cohen, M.D., who appeared as a fact and expert witness on plaintiffs' behalf, and that the error warranted a new trial. Additionally, plaintiffs argue that the trial judge erred in not investigating a statement by the jury foreman, obtained by the mother of plaintiff Diana Franco after the trial had concluded, that at a time when the jury was deadlocked four to four, one juror suggested that all jurors return a no cause verdict and then let plaintiffs appeal the case.
The record discloses that, over the weekend commencing on Friday, December 10, 2004, Diana Franco (Franco), who was twenty-seven weeks pregnant, began to experience vomiting, diarrhea, and cramping. On Sunday, December 12, she called her treating obstetrician, Dr. Binetti, who was unavailable, and she was referred to a covering physician, Dr. Sullivan, who allegedly prescribed over-the-counter remedies. Franco testified that Dr. Sullivan told her that he would call Dr. Binetti on Monday and inform him of Franco's condition. Dr. Sullivan testified that he instructed Franco to call her physician on Monday so that he was aware of what had transpired and so it could be reflected on her chart.
In any case, no contact with Dr. Binetti was made on Monday, December 13. At approximately 4:00 p.m. on Tuesday, December 14, Franco telephoned Dr. Binetti and explained her symptoms. At some point, Franco's next appointment with the doctor was moved to the upcoming Friday, December 17. However, on Thursday, Franco was found by her husband on the floor at their home with blood coming from her mouth, having suffered a seizure. She was transported by ambulance to Chilton Memorial Hospital, where she was treated by Dr. Cohen, the on-call obstetrician at that facility. She was diagnosed by Dr. Cohen as suffering from eclampsia. A determination was made to perform an emergency Caesarian section, and a boy, Michael Franco, Jr., was delivered. However, he died on January 8, 2005 as the result of necrotizing enterocolitis arising from his premature condition.
At trial, Franco testified that she informed both Dr. Sullivan and Dr. Binetti in her telephone calls with them that she was experiencing a severe headache in addition to her gastrointestinal symptoms. Both doctors deny that fact, noting that a persistent headache is a symptom of preeclampsia, a potentially life-threatening condition and, if informed of a headache, they would have ordered immediate testing to determine if the condition existed. Dr. Sullivan had no record or recollection of Franco's call; Dr. Binetti's record of his conversation with Franco did not mention headache.
In a report addressed to plaintiffs' counsel, dated February 7, 2008, Dr. Cohen described conversations with Dr. Binetti occurring after Dr. Cohen had performed the Caesarian section on Franco. He stated:
It is of significance to note that I reached Dr. Binetti at his home at approximately 8:40 p.m. on 12/16/04 to notify him of what had transpired with Ms. Franco. I was then called by Dr. Binetti as I was leaving the operating room. He informed me that he was in his office and was reviewing her chart and that he couldn't understand what had gone wrong. I told him that I was quite preoccupied with Ms. Franco at that time and that perhaps we could talk at some other time. Dr. Binetti then called me a second time around midnight. We discussed what had transpired and he asked me if there was anything that he could have done differently. I told him that Mr. Franco was very upset that he had ignored her complaints of headaches and that her sister [a nurse] was too sophisticated to be misled. He replied, "the chart no longer exists as it once did." I told Dr. Binetti that was not my concern. I had a sick patient on my hands and his confiding in me that he would tidy up the chart made no sense to me. The conversation ended and I never spoke to him again.
Dr. Cohen then expressed his expert opinion that Dr. Binetti deviated from the standards of care in the community by failing to listen to Franco's complaints of severe headaches, thereby permitting her to progress from preeclampsia to eclampsia, a condition necessitating the delivery of a significantly premature baby who was incapable of surviving.
Dr. Cohen reached the same conclusion when considering the care afforded by Dr. Sullivan. Additionally, Dr. Cohen stated: "Dr. Binetti also deviated from the standards of care in most any community by admitting to doctoring a medical chart after an adverse event has occurred."
In a deposition given on November 18, 2008, Dr. Cohen described his interactions with Dr. Binetti in a fashion that differed from his report. Although Dr. Cohen testified that he would "stand by" his statement that Dr. Binetti told him "the chart no longer exists as it once did," that statement was "not ...