In a personal injury action where the plaintiff claimed he required surgery for a herniated lumbar disk, defense counsel attempted to use an office note of a physician during cross-examine of a plaintiff’s recollection about prior complaints of lower back pain. The note had L5 circled for nine different office visits. Neither the physician nor anyone from his staff was called to testify about the note. Plaintiff also testified that the notes did not refresh his recollection. In addition, the note did not contain any statements attributable to the plaintiff.
The Appellate Division ruled on May 30, 2012 that a trial court has an obligation to prevent a witness or party from putting into the record the contents of an otherwise inadmissible writing under the guise of refreshing recollection. Defense counsel could have presented the plaintiff with the doctor’s notes outside the presence of the jury to see whether or not they refreshed his recollection. Allowing the plaintiff to be cross-examined with a hearsay note improperly introduced into evidence, when it did not refresh plaintiff’s recollection and when the note did not contain statements made by plaintiff, was reversible error. The finding of no proximate cause by the jury was reversed and the matter was remanded for a new trial on damages.
In a non-medical malpractice case, but on an issue that is certainly relevant to medical malpractice practioners, the Appellate Division in Ingrao v. Goncalves, A-1332-10T1, ruled that a defense expert could not examine MRI films for the first time in Court.
The case involved a damages only trial following a motor vehicle accident. Defendant’s examining defense expert, Francis DeLuca M.D. attempted to review MRI films taken of the patient’s lumbar spine for the first time in Court. Those films were available for review well before trial and Dr. DeLuca never requested copies to review when he examined the plaintiff, or, at any time thereafter.
The trial Court ruled that he could not review them for the very first time at trial in an attempt to bolster his opinions that the patient’s injuries were not from the motor vehicle accident in question. The Appellate Court agreed, finding that, “if it was important to defendants that Dr. DeLuca examine the MRI films to bolster his expert opinions, then defense counsel should have assured that the films were provided to Dr. DeLuca before trial.” Naturally, in such a situation, Dr. DeLuca would have had to have issued a report regarding his review of the MRI films prior to the discovery end date in order for such opinions to be admissible.