June 26, 2012
AVADA SMITH, PLAINTIFF-APPELLANT,
PETER LONTAI, M.D., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
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 medical practice on February 1, 2006.
Plaintiff asserts that the trial judge improperly curtailed her ability to develop defendant's poor recordkeeping pursuant to N.J.R.E. 403. We must review this claim under an abuse of discretion standard. See Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (instructing that a trial judge's rulings under N.J.R.E. 403 should not be overturned on appeal unless there is a palpable abuse of discretion, a "finding . . . so wide off the mark that a manifest denial of justice resulted").
We recognize that counsel are ordinarily given wide latitude to ask relevant questions on cross-examination. However, the right of cross-examination is not unbounded. The court may exercise reasonable control over witness questioning, see N.J.R.E. 611, and has the discretion to exclude proofs that have little probative value and would confuse, distract or mislead the jury. See N.J.R.E. 403. As we have previously observed, "[w]e will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.) (quoting State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002)), certif. denied, 185 N.J. 297 (2005). Dr. Bell's general belief that poor recordkeeping is indicative of poor care is negated by his admission that defendant's poor recordkeeping was irrelevant to his alleged deviation of care on February 1, 2006.
Plaintiff claims that she should have been allowed to develop defendant's faulty recollection of the length of time he had been treating plaintiff as a way of undermining defendant's credibility. In fact, plaintiff's counsel was permitted through cross-examination to establish that defendant did not have patient records from before 2002 and that he may well have treated plaintiff since 1993.
Plaintiff's reliance on DaGraca v. Laing, 288 N.J. Super. 292 (App. Div.) certif. denied, 145 N.J 372 (1996), is misplaced. In that medical malpractice case, defendant allegedly misdiagnosed plaintiff's withdrawal from Xanax, a drug the doctor had purportedly prescribed during the seven months prior to plaintiff's admission to the hospital, without seeing plaintiff or noting the prescription in his records. The records in that matter were directly relevant to the alleged malpractice. We ruled the trial court erred in not permitting cross-examination concerning those records, as well as in not permitting cross-examination pursuant to the learned-treatise rule. DaGraca, supra, 288 N.J. Super. at 298-302. Here, plaintiff's expert conceded that defendant's records were irrelevant to the alleged malpractice.
The judge also did not abuse his discretion in reading the relevant portion of Dr. Bell's deposition and explaining to the jury during trial why the issue of defendant's prior recordkeeping should not be considered.
Plaintiff raises as plain error the claim that the judge improperly vouched for defendant's credibility. R. 2:10-2. At one point during plaintiff counsel's extended cross-examination of defendant, the judge commented to the jury that the doctor admitted truthfully that he neglected to put his February 1, 2006 diagnosis of gastritis in his records, only submitting the diagnosis to the insurance carrier. The judge said to the jury that this failure to place the diagnosis in the records was not relevant to the deviation from the standard of care. This comment was "not clearly capable of producing an unjust result" and, therefore, does not rise to the level of plain error. See R. 2:10-2.
Plaintiff further claims the jury charge was fatally flawed because the judge did not elaborate on the appropriate standard of care in a tailored jury charge, and also improperly gave a charge with regard to plaintiff's pre-existing medical condition pursuant to Scafidi v. Seiler, 119 N.J. 93 (1990).
"The failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds v. Gonzales, 172 N.J. 266, 270 (2002). "[A] jury charge 'should set forth an understandable and clear exposition of the issues.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984)), certif. denied, 165 N.J. 607 (2000).
Plaintiff was assisted by the relaxed test for causation provided by the Scafidi charge due to her pre-existing condition. In any event, as defendant notes, the jury never considered the issue of causation because they found defendant did not deviate from the accepted standard of care.
Plaintiff did not request a particular tailored charge regarding the applicable standard of care. Plaintiff's expert opined that, as a general practitioner, defendant had the obligation to refer plaintiff for a full medical workup at a hospital. Defendant's experts opined to the contrary. The experts based their opinions in large part on their differing views of the information defendant received on February 1, 2006. Plaintiff's expert assumed that plaintiff had complained about weakness and chest pain. Defense experts accepted defendant's records, which reflected only a complaint about gas or indigestion. Evidence was presented as to plaintiff's expressed symptoms at the time she was taken to the hospital*fn2 two days later, as well as the testimony of the parties as to what occurred on February 1, 2006. Under the circumstances, the jury charge was not unduly confusing or prejudicial to plaintiff.
To the extent that we have not specifically addressed any of plaintiff's arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).