On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-854-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
Plaintiff Avada Smith appeals from a July 5, 2011 order for judgment in favor of defendant, Dr. Peter Lontai. The jury returned a unanimous verdict finding that defendant did not deviate from accepted standards of medical care in not referring plaintiff to the hospital after examining her on February 1, 2006, two days before she was taken from her home by emergency services personnel to the hospital and diagnosed with a massive pulmonary embolism.*fn1 She claimed that defendant's failure of care contributed to her subsequent permanent and persistent shortness of breath.
On appeal, plaintiff claims the trial judge erred in his evidentiary rulings, improperly vouched for defendant's credibility and gave misleading and confusing jury charges. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Prior to filing a complaint, plaintiff filed an order to show cause seeking her complete medical records from defendant. Defendant testified before the judge on April 10, 2007, that three pages of her medical chart and test results were the only records he possessed. He indicated he had a dispute with the psychologically-impaired widow of a doctor whose Rahway practice he took over, which resulted in his inability to obtain patients' medical records, including plaintiff's, from that location. Immediately prior to trial, the judge granted defendant's motion to bar plaintiff's expert, Dr. Kenneth Bell, from testifying regarding defendant's poor recordkeeping.
Dr. Bell opined at his deposition that poor charting is endemic of poor care. He also indicated that defendant deviated from accepted standards of recordkeeping for a physician, but conceded at his deposition that this deviation was not relevant to defendant's failing to hospitalize plaintiff on February 1, 2006.
The judge ruled, pursuant to N.J.R.E. 403, that testimony concerning recordkeeping would result in an undue consumption of time and distract the jury. He also held that the prejudice to defendant would far outweigh any probative value.
Plaintiff, who was seventy-six years old at the time of trial, testified that she began treatment with defendant in 1993. Prior to seeing defendant on February 1, 2006, she had been diagnosed with diabetes, high blood pressure and heart disease.
Defendant testified at trial that he believed plaintiff was his patient since 2002. In response to questioning by plaintiff's counsel, he also testified to losing his medical records from his Rahway office and conceded plaintiff might have been his patient since 1993. The judge then curtailed further questioning regarding defendant's missing records.
Dr. Bell testified that, based on defendant's records, plaintiff complained of having gas for two to three days.
Defendant examined plaintiff's lungs and heart, which he determined were normal. He also concluded that she did not have tachycardia, a fast heart rate that is a classic symptom of pulmonary embolism. Nonetheless, Dr. Bell told the jury that defendant should have sent plaintiff to the hospital immediately for a complete work-up.
In less than fifty minutes, the jury voted eight to zero that defendant had not deviated from accepted standards of ...