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Appellate Division affirms that a patient’s treating doctor may testify as to the cause of an injury – Rothman v. Cole – A-1838-14T1 – decided July 21, 2016

By Attorney Michael B. Zerres on September 9, 2016

This is a medical malpractice matter where the defendant is appealing from a final judgment following a jury trial.  Plaintiff, a 64 year old woman who underwent a heart pacemaker implant surgery performed by defendant in 2008, was later advised in 2009 by her long term treating physician and cardiologist, Dr. Amendo, that the pacemaker wire had been malpositioned after he had conducted a nuclear stress test.  Subsequent testing by a Dr. Leon revealed that the lead wire for plaintiff’s pacemaker was inserted through plaintiff’s subclavian artery and into the left ventricle of her heart, rather than the right ventricle as defendant had understood he had done, and that a ostial occlusion of the left internal mammary artery (“LIMA”) caused an obstruction, which required the insertion of a stent. 

During trial, defendant requested a N.J.R.E. 104 hearing regarding Dr. Amendo’s testimony as he sought to bar Dr. Amendo from testifying about the statements made to him by Dr. Leon regarding the cause of the occlusion of plaintiff’s LIMA. Dr. Leon had advised Dr. Amendo that trauma from the pacema­ker wire insertion caused the occlusion of her LIMA. At the first N.J.R.E. 104 hearing, the court ruled that Dr. Amendo could not testify about Dr. Leon’s statements, which would have constituted hearsay; however, during a second N.J.R.E. 104 hearing, the court ruled that Dr. Amendo could testify about his own determination, as her treating physician, regarding the cause of the occlusion.  Dr. Amendo did so before the jury without referring to any statements from Dr. Leon.  On appeal, defendant argues that the trial court erred in allowing “surprise” and “inappropriate” expert testimony by Dr. Amendo regarding the cause of the occlusion in plaintiff’s LIMA and plaintiff’s resulting need for the insertion of a stent and that such testimony was based upon hearsay statements made to him by Dr. Leon.     

According to Stigliano v. Connaught Lab., 140 N.J. 305, 314 (1995), as fact witnesses, treating physicians may testify about the diagnosis, treatment, and cause of plaintiff’s injury or disorder once the injury or disease is in question.  Moreover, treating physicians  “may testify as to the opinions of a nontestifying doctor if the treating doctor relied on those opinions in reaching his or her diagnosis or in formulating a plan of treatment and management of the patient.” Macaluso v. Pleskin, 329 N.J. Super. 346, 355-56 (App. Div.) (internal citations omitted).  Here, Dr. Amendo testified that damage to the LIMA was caused by the pacemaker implantation surgery and that he had reached that conclusion without referencing any of Dr. Leon’s statements to that same effect, thereby limiting his testimony to his independent assessment.  Therefore, Dr. Amendo was rightly permitted to testify about the cause of the occlusion in plaintiff’s LIMA and, as such, the Appellate Division found no abuse of discretion in the trial court’s ruling that Dr. Amendo be permitted to testify about the cause of plaintiff’s injury.

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Posted in: Medical Malpractice


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