Palmisano v. Pear

703 A.2d 966, 306 N.J. Super. 395, 1997 N.J. Super. LEXIS 500
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 19, 1997
StatusPublished
Cited by12 cases

This text of 703 A.2d 966 (Palmisano v. Pear) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palmisano v. Pear, 703 A.2d 966, 306 N.J. Super. 395, 1997 N.J. Super. LEXIS 500 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

HAVEY, P.J.A.D.

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 1990.1 The jury found no deviation and returned a verdict in defendant’s favor.

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.

[398]*398Plaintiff testified that she was examined in February 1989 by Dr. Nicosia’s partner, defendant Dr. Edwin Pear.2 Plaintiff complained of vaginal bleeding. A routine breast examination detected no abnormalities. A subsequent baseline mammogram conducted on May 5, 1989, revealed calcification on plaintiff’s right breast which appeared to be benign.

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[399]*399nation was performed, which was normal. There is no indication in the record, however, that plaintiff had complained of a lump. During her hospitalization, Dr. Nicosia performed the hysterectomy.

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.

[400]*400Dr. Nicosia next examined plaintiff in the hospital in July 1990. At that time he performed a breast examination, which was normal. According to Dr. Nicosia, plaintiff did not complain of a lump on her breast during the hospital examination.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of New Jersey v. A.N.A.
New Jersey Superior Court App Division, 2026
State of New Jersey v. William J. Silvers, III
New Jersey Superior Court App Division, 2023
State of New Jersey v. Lee E. Moorer (13-09-0514, Salem County and Statewide)
151 A.3d 109 (New Jersey Superior Court App Division, 2016)
State v. E.R.
199 A.3d 1224 (New Jersey Superior Court App Division, 2016)
Neno v. Clinton
772 A.2d 899 (Supreme Court of New Jersey, 2001)
State v. One Marlin Rifle
725 A.2d 144 (New Jersey Superior Court App Division, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
703 A.2d 966, 306 N.J. Super. 395, 1997 N.J. Super. LEXIS 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmisano-v-pear-njsuperctappdiv-1997.