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Adele Konop and Richard Konop, Her Husband v. Ellen J. Rosen

April 25, 2012

ADELE KONOP AND RICHARD KONOP, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
ELLEN J. ROSEN, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0175-08.

The opinion of the court was delivered by: Messano, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 9, 2011

Before Judges Messano, Yannotti and Kennedy.

The opinion of the court was delivered by MESSANO, P.J.A.D.

Plaintiff Adele Konop suffered a perforated colon during a colonoscopy performed by defendant, Dr. Ellen J. Rosen, at the Hanover Endoscopy Center.*fn1 Later the same day, Dr. Edward McLean performed an emergency lapararotomy and colostomy on plaintiff at Morristown Memorial Hospital to repair the perforation.*fn2

Plaintiff was hospitalized for several days, hospitalized again when her colostomy needed debridement, and readmitted a third time for additional procedures. Plaintiff filed this medical malpractice suit against defendant.

Plaintiff's expert, Dr. Meyer N. Solny, opined that defendant deviated from accepted medical standards by failing "to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred." Solny's opinion rested exclusively upon a notation that appeared in a consultation report prepared by Dr. Victor S. Flores upon plaintiff's initial admission to the hospital.

Before trial, defendant moved to bar the notation, claiming it was inadmissible hearsay. Defendant also argued that, if the notation was excluded from the consultation report, Solny's opinion was factually unsustainable and summary judgment was appropriate. Following oral argument, the judge scheduled a hearing pursuant to N.J.R.E. 104 to consider defendant's application.

Following the hearing, in an oral opinion, the judge concluded that the notation was inadmissible hearsay and should be redacted from the medical records. After originally agreeing to stay his decision so plaintiff could seek appellate review, the judge subsequently vacated the stay and granted summary judgment to defendant. Plaintiff now appeals from the January 26, 2011, order excluding the notation and granting defendant summary judgment.

Plaintiff contends that the judge erred in determining the notation was inadmissible hearsay, and, as a result, summary judgment should have been denied. Defendant counters by arguing that the judge properly excluded the notation because it was hearsay, not subject to any exception in our Rules of Evidence, and otherwise "untrustworthy." Both parties agree that if the notation is inadmissible, summary judgment was appropriate.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings.

I.

Plaintiff had no recall of the actual colonoscopy. Defendant testified at the Rule 104 hearing that the procedure was performed under monitored anesthesia, i.e., plaintiff was in a sleep-like state. With monitored anesthesia, the initial dose may wear off causing a heightened state of consciousness in which the patient is able to move. If this occurs, an additional dose is administered to keep the patient in the necessary sleep-like state. As a result, an anesthesiologist, Dr. Murthy, was present for the entire procedure performed on plaintiff. The record does not reveal whether Murthy was deposed.

Defendant testified that because the anesthesia is "very short acting," it "typically will [be given] periodically during the procedure," but claimed that nothing beyond the norm was administered to plaintiff. In her deposition, defendant testified that plaintiff "was not moving too much to do the procedure," but she did "not recall if [plaintiff] was moving at all."

After the colonoscopy, plaintiff complained of abdominal pain and was unable to "pass gas." Defendant examined plaintiff and had a nurse "place[] a rectal tube in" plaintiff "to facilitate passage of gas." When this was unsuccessful, defendant grew "concern[ed]" there was a perforation and arranged for plaintiff's transportation to the hospital. Defendant also called for a surgeon to meet plaintiff in the emergency room.

Defendant also proceeded to the emergency room and discussed plaintiff's condition with McLean. After some diagnostic tests were performed, defendant's suspicion was confirmed, and McLean promptly operated to repair the perforation. Defendant recalled speaking with plaintiff and McLean, but no other doctors, and told McLean the colonoscopy had gone "smoothly." Defendant acknowledged that, other than plaintiff, she was the only person at the hospital who was also present during the colonoscopy.

Flores did not testify at the Rule 104 hearing but was deposed at an earlier date. He prepared the "consultation" report upon plaintiff's appearance in the emergency room. Flores, a first-year resident at the time, hand-wrote the report contemporaneously, believed its contents were accurate, but could not recall the source of all the information contained in it. Flores testified that routinely he did not speak to the "treating physician," but could not specifically recall whether he spoke to defendant. He typically obtained his information from his "supervisor, [his] senior, and [his] attending," in this case McLean, who "have already been told what's going on."

In the consultation report, after noting plaintiff's age and the fact that her colon had been "accidentally perforated," Flores wrote:

Pt. has tics and was moving too much at time of procedure. Dr. Rosen was performing the procedure and called surgery for poss. laparotomy .

Flores testified that the term "tics" is shorthand for either diverticulitis or a motor tic, which occurs with certain neurological illnesses. McLean reviewed the consultation report, including the subject sentences, and "cosigned the note."

At the Rule 104 hearing, defendant testified that "tics" was shorthand for "diverticulosis,"*fn3 a condition from which plaintiff suffered. Defendant denied ever telling anyone that plaintiff was moving too much during the colonoscopy, or that she called for a surgical consult while "performing" the procedure. She acknowledged, however, that the balance of the consultation report was accurate.

In his deposition, McLean testified that he saw plaintiff and defendant in the emergency room of the hospital, and defendant was concerned "there may be a perforation of the colon." McLean did not specifically recall, but noted that he "probably" discussed the consultation report with Flores "since [he] work[ed] pretty closely with the residents." As to the critical notation, McLean interpreted "tics" as shorthand for diverticulosis, noting "we always ask what . . . the colonoscopy [was] done for, what did they see." He interpreted Flores' reference -- "moving too much at time of procedure" -- as indicative of defendant's "high suspicion . . . that the patient had a perforation."

At the Rule 104 hearing, McLean testified he did not recall defendant ever telling him that plaintiff was "moving too much," nor did he make that statement to Flores. McLean did not have a specific memory of signing the consultation report but acknowledged that generally he would have checked it for accuracy.

After reviewing the testimony, the judge concluded that the consultation report was not admissible pursuant to N.J.R.E. 803(c)(6). Noting he faced "a difficult decision," the judge determined "[t]here is no rational explanation as to why . . . Flores made this statement." He continued:

The problem is that there are many alternate scenarios one could speculate on to explain why the first year resident made the statement. Perhaps he misunderstood a term. Perhaps the movement occurred following the completion of the procedure, while [plaintiff] was waiting to be transported to the hospital or as she awoke.

All this is highly speculative. All of this is beyond the realm of the record. The underlying derivation of this statement is cloudy, unclear and in order for me to make a determination of admissibility . . . it would . . . really depend on a conspiracy that the doctors are all lying and perjuring themselves in order to effectuate a continuation of this coverup. Unfortunately, that is speculative.

The judge ordered the entire notation redacted from the consultation report and subsequently granted defendant summary judgment. This appeal followed.

II.

"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence -- one that is entrusted to the exercise of sound discretion -- requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010). However, "[w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence," our review is de novo. Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2012); see also State v. Darby, 174 N.J. 509, 518 (2002) (applying de novo review when the trial court failed to properly analyze N.J.R.E. 404(b) evidence).

"[A] trial court confronted with an evidence determination precedent to ruling on a summary judgment motion squarely must address the evidence decision first[,] . . . guided by the applicable Rules of Evidence as well as by the overarching mandate of Rule 104." Hanges, supra, 202 N.J. at 384-85. Rule 104 provides:

(a) Questions of admissibility generally. When . . . the admissibility of evidence . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. In making that determination the judge shall not apply the rules of evidence except for Rule 403 or a valid claim of privilege. The judge may hear and determine such matters out of the presence or hearing of the jury.

(b) Relevance conditioned on fact. Where evidence is otherwise admissible if relevant and its relevance is subject to a condition, the judge shall admit it upon or subject to the introduction of sufficient evidence to support a finding of the condition. In such cases the judge shall instruct the jury to consider the issue of the fulfillment of the condition and to disregard the evidence if it finds that the condition was not fulfilled. The jury shall be instructed to disregard the evidence if the judge subsequently determines that a jury could not reasonably find that the condition was fulfilled. [N.J.R.E. 104(a) and (b).]

Hearsay statements are inadmissible unless they fall within an exception. N.J.R.E. 802. Pursuant to N.J.R.E. 805, "Hearsay Within Hearsay,"

A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement ...


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