Palmisano v. Pear
Palmisano v. Pear
Opinion of the Court
The opinion of the court was delivered by
In this medical malpractice case, plaintiffs appeal from a judgment entered on a no-cause verdict in favor of defendant, Leonard Nicosia, M.D.
In her complaint, plaintiff Beverly Palmisano (plaintiff) claims that Dr. Nicosia, a gynecologist, deviated from accepted medical standards of care in failing to refer her to a specialist for a biopsy after palpating a lump on her breast in March 1990.
The thrust of plaintiffs contention on appeal is that the trial judge erred in excluding from evidence a medical history given by her on December 8, 1990 to a breast specialist who ultimately diagnosed cancer in both of plaintiffs breasts. In that history, plaintiff stated that Dr. Nicosia had “felt” a lump on her breast nine months earlier. Plaintiff argues that the history was admissible under N.J.R.E. 803(e)(4) as necessary for the proper diagnosis and medical treatment of her disease. Alternatively, she claims that the statement was admissible under N.J.R.E. 607 and N.J.R.E. 803(a)(2) to support her credibility because defendant had implied recent fabrication. We reject the contentions and affirm.
According to plaintiff, she saw Dr. Pear again in January 1990 after feeling a lump on her left breast. She testified that Dr. Pear performed a breast examination, but felt no lump. However, he sent her for another mammogram. A February 1, 1990 mammogram indicated a normal left breast with benign calcification in the right breast, with no change in density from the previous film. A six-month follow-up examination was recommended for the right breast.
Plaintiff was examined by Dr. Nicosia on March 26, 1990. She claimed she told Dr. Nicosia that she had previously reported the lump on her left breast to Dr. Pear. According to plaintiff, Dr. Nicosia felt the lump and said, “[o]h, that’s nothing to worry about. You just have wacky breasts. Don’t worry about it.” Plaintiff testified that after this examination she talked with Dr. Nicosia on many occasions by phone about her vaginal bleeding and the lump on her breast.
At plaintiffs request, her May 5, 1989 and February 1, 1990 mammograms were sent by Dr. Nicosia to Dr. Mitchell Bernstein, a breast specialist. Dr. Bernstein examined the films and agreed with the radiologist’s findings and the recommendation that a follow-up mammogram be performed.
In July 1990, plaintiff was taken to a hospital emergency room for excessive vaginal bleeding. She was examined by Dr. Nicosia, who recommended a complete hysterectomy. She testified that Dr. Nicosia again checked her left breast for a lump and told her it was “nothing.” The hospital record notes that a breast exami
Plaintiff testified that, on August 31, 1990, during a postoperative visit, Dr. Nicosia examined plaintiff and again told her that she had “wacky breasts.” Troubled by the doctor’s observation, plaintiff underwent a mammogram with ultrasound on December 5, 1990. This mammogram revealed an increase in density of tissue and lesions on the left breast. Plaintiff was advised by the radiologist to undergo a biopsy of both breasts.
On December 8,1990, plaintiff presented herself to the office of Dr. Bernstein. The doctor’s assistant, Lynn Camwell, took plaintiffs medical history. Ms. Camwell recorded that plaintiff “[s]aw Dr. Nicosia and he felt lump left 4/90.” The trial judge excluded from evidence this part of the history, concluding that it did not fall within the medical treatment exception to the hearsay rule, N.J.R.E. 803(c)(4), because it was self-serving and unnecessary for the purpose of medical diagnosis and treatment. The judge also rejected plaintiffs’ alternative argument that the report was admissible to rebut a charge of recent fabrication. He further observed that even if the history had some marginal relevance, it was so prejudicial as to be excludable under N.J.R.E. 403.
As a result of a biopsy conducted by Dr. Bernstein, it was revealed that plaintiff was suffering from breast cancer. Dr. Bernstein recommended immediate surgical intervention. On January 10, 1991, complete mastectomies on both breasts were performed.
Dr. Nicosia testified that plaintiff never complained of a breast lump to him. On the day of his March 26, 1990 examination of plaintiff, his nurse recorded plaintiffs complaint as “GYN visit, vaginal bleeding since March 7th.” He testified that when plaintiff expressed a concern with the mammogram results, he forwarded the films of both the May 1989 and February 1990 mammograms to Dr. Bernstein.
Dr. Nicosia testified that when plaintiffs December 5, 1990 mammogram was performed with positive results, he instructed her to contact Dr. Bernstein immediately.
I
N.J.R.E. 803(c)(4) provides an exception to the hearsay rule when statements of a patient are:
made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
As long as the statements are made for the purpose of diagnosis or treatment, and are reasonably pertinent thereto, the statements are admissible hearsay evidence. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (1997). The rationale for the exception is that “such statements possess inherent reliability because ‘the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician.’ ” R.S. v. Knighton, 125 N.J. 79, 87, 592 A.2d 1157 (1991) (quoting McCormick on Evidence § 292 at 839 (3d ed. 1984)). The assumption is that the declarant is “ ‘more interested in obtaining a diagnosis and treatment culminating in a medical recovery than ... in obtaining a favorable medical opinion culminating in a legal recovery.’ ” In re C.A., 146 N.J. 71, 99, 679 A.2d 1153 (1996) (quoting Biunno, supra, comment on N.J.R.E. 803(c)(4)).
Statements as to the cause of injury, when the cause is irrelevant to diagnosis or treatment, are inadmissible under the exception. Knighton, supra, 125 N.J. at 88, 592 A.2d 1157. Contrary to the inherent reliability found in statements concerning past and present symptoms, statements as to cause “may be
Plaintiffs statement to Dr. Bernstein’s assistant that Dr. Nicosia had “felt” her breast lump in March 1990 was properly excluded. First, it was, in essence, double hearsay; Dr. Bernstein’s assistant recorded plaintiffs statement about the sensory perception of another. Second, its relevance was limited to proving Dr. Nicosia’s culpability; it corroborated plaintiffs testimony that Dr. Nicosia knew about the lump as early as March 26,1990. This assertion was a factual predicate to plaintiffs expert’s opinion that Dr. Nicosia deviated from accepted medical practice in not promptly referring plaintiff to a breast specialist for treatment. As such, the statement was akin to describing the cause of an injury while giving a medical history. Thus, plaintiffs statement “was a self-serving one, with the prejudicial vice of buttressing” her own trial testimony and the opinion rendered by her expert. Sas v. Strelecki, 110 N.J.Super. 14, 19, 264 A.2d 247 (App.Div. 1970).
Finally, the statement was not a medical necessity for the purpose of Dr. Bernstein’s diagnosis or treatment of plaintiffs condition. In other words, it was not “reasonably pertinent to diagnosis or treatment.” N.J.R.E. 803(c)(4). Plaintiff adduced no testimony from Dr. Bernstein or from her expert explaining how this statement would have been significant to the diagnosis and
II
We also reject plaintiffs’ argument that her statement was admissible because defendant had attacked her credibility by implying recent fabrication. See N.J.R.E. 607 and N.J.R.E. 803(a)(2). A prior consistent statement offered to bolster a witness’ testimony is inadmissible. See Biunno, supra, comment 4 on N.J.R.E. 607; State v. Sullivan, 24 N.J. 18, 39, 130 A.2d 610, cert. denied, 355 U.S. 840, 78 S.Ct. 52, 2 L.Ed.2d 51 (1957). However, a prior statement may be admitted in evidence to support the credibility of a witness for the purpose of rebutting an expressed or implied charge of recent fabrication. State v. Johnson, 235 N.J.Super. 547, 555, 563 A.2d 851 (App.Div.), certif. denied, 118 N.J. 214, 570 A.2d 971 (1989); see State v. King, 115 N.J.Super. 140, 146-47, 278 A.2d 504 (App.Div.), certif. denied, 59 N.J. 268, 281 A.2d 530 (1971) (prior consistent statement admitted when the cross-examiner implied that witness threatened detectives a week before trial that she intended to lie); State v. Bass, 221 N.J.Super. 466, 486, 535 A.2d 1 (App.Div. 1987), certif. denied 110 N.J. 186, 540 A.2d 182 (1988) (prior consistent statement admitted when cross-examination of a child, indicating he had remembered certain incidents only when helped by the detective, implied child fabricated his version of the story); State v. Silva, 131 N.J. 438,
Here, it is true that plaintiffs credibility was brought into question on cross-examination when defense counsel pointed to inconsistencies between her trial testimony and previous deposition testimony and interrogatory answers. For example, defense counsel asked plaintiff whether she was absolutely positive she had mentioned the lump on her breast to Dr. Nicosia when she was examined in the hospital emergency room in July 1990. She stated, “I’m very sure that I did tell him that.” Plaintiff was then confronted with her prior deposition testimony where, when asked whether she remembered mentioning the lump to Dr. Nicosia at the hospital, she responded, “[t]o be a hundred percent sure, I couldn’t really say. I don’t really recall.”
An attack on a party’s credibility through prior inconsistent statements does not necessarily give plaintiff the right to use a prior consistent statement to buttress the party’s credibility. See Sas, supra, 110 N.J.Super. at 22, 264 A.2d 247. Admitting such testimony is contrary to the traditional rule that parties may not bolster the credibility of their witnesses, unless the “attack upon the credibility of the witness tends to show that his testimony is a fabrication of recent date.” Ibid. See also 1 McCormick on Evidence § 47 at 177 (Strong ed. 4th ed. 1992) (discussing conflicting decisions on whether impeachment by inconsistent statements opens the door to rehabilitation through consistent statements).
Absent here is any claim of “fabrication of recent date.” The cross-examination of plaintiff did not adduce any express or implied recent falsehood or change in plaintiffs testimony respecting the history of the medical treatment by Dr. Nicosia. Indeed, in her July 8, 1992 complaint, she charges that she placed herself in the care of Doctors Nicosia and Pear as early as February 1990 for the purpose of treatment of “a lump in her left breast.” While
Affirmed.
Plaintiff Armand Palmisano, Beverly's husband, asserts a per quod claim.
The complaint against Dr. Pear was voluntarily dismissed.
Reference
- Full Case Name
- BEVERLY PALMISANO AND ARMAND PALMISANO, HER HUSBAND v. EDWIN J. PEAR, M.D., AND LEONARD NICOSIA, M.D., DEFENDANT-RESPONDENT
- Cited By
- 12 cases
- Status
- Published