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Wednesday, July 18, 2012

Gonzalez v. Smith

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-3011-10T2



February 27, 2012

Submitted February 6, 2012 - Decided

Before Judges Grall and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9284-10.

Hardin, Kundla, McKeon & Poletto, attorneys for appellant (Matthew R. Panas, of counsel and on the brief).

Raff & Raff, attorneys for respondent (Daniel A. Levy, on the brief).

In this auto negligence case, defendant Lataya Smith appeals from a $33,750 jury verdict in favor of plaintiff, Celines Gonzalez.  Plaintiff's claim for non-economic damages was subject to the "verbal threshold" provision set forth in N.J.S.A. 39:6A-8, of the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1 to -35.  Defendant contends that the trial judge erred in permitting plaintiff's treating physician to testify as to opinions not contained in his reports and records, and his interpretation of plaintiff's MRI.  Because we conclude that the rulings on these issues did not constitute a mistaken exercise of discretion, we affirm the judgment of the trial court.
The subject accident occurred in Paterson on December 21, 2007, when defendant disregarded a stop sign and struck the vehicle driven by plaintiff on the right front passenger side. Plaintiff described the impact as "very hard."  The force of the impact caused plaintiff's vehicle, a Toyota Corolla, to travel over a snow bank.  Plaintiff's car sustained approximately $11,000 in property damage.  At the time of the accident plaintiff was twenty-eight years old.  She had no history of any previous injury or problems relating to her back.  Hours after the accident, plaintiff, complaining of back pain, went to a family doctor and began a course of conservative treatment.  When her back failed to improve with this treatment, in April 2008 she underwent MRI and EMG testing and was referred to a pain management doctor, Boris Prakhina, M.D.  
The MRI indicated a "L5-S1 small central posterior left paracentral disc herniation in close proximity to the S1 nerve root."  The EMG indicated a "left L5 radiculopathy."  Plaintiff received three epidural injections from Dr. Prakhina under anesthesia, one in May 2008 and two in July 2008.  Dr. Prakhina also performed a percutaneous disc compression, or discography, at the L5-S1 level in June 2009, which further confirmed disc injury to plaintiff's lower back.      
The central issue in the case was whether plaintiff sustained a "permanent injury" caused by the accident within the meaning of N.J.S.A. 39:6A-8(a) ("An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.").  While plaintiff acknowledged that the condition of her back improved following her treatment with Dr. Prakhina, she testified at trial that she continues to experience back pain on a daily basis.  Dr. Prakhina, who was plaintiff's only medical witness, testified that plaintiff sustained a herniated disc that was caused by the accident and that the injury was permanent.
Defendant first contends the court committed reversible error in denying defendant's motion to preclude Dr. Prakhina from testifying to matters outside the scope of the opinions contained within his medical records and reports.  More particularly, defendant claims the court erred by considering Dr. Prakhina’s certification of permanency in delineating the parameters of his permissible testimony.  Defendant does not contend that the certification was not timely served.  Notably, Dr. Prakina's office records contained entries of July 6, July 16, and August 20, 2009, reflecting plaintiff's motor vehicle accident as being the cause of her injuries.  Over defendant's objection, Dr. Prakhina was permitted to opine that plaintiff's back injuries, as revealed by the objective medical testing discussed above, were caused by the December 2007 accident and were permanent in nature. 
            Rule 4:23-5(b) permits a trial court to exclude testimony of a treating physician if a party fails to comply with the service requirements of Rule 4:17-4(a).  "The imposition of such a sanction, however, is clearly not an absolute requirement but rather is left to the discretion of the trial court."  Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985).  "Factors that should strongly urge a trial court not to impose sanctions include (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence."  Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978) (internal quotation marks and citation omitted).  
            A treating physician may testify about his or her patient's diagnosis, treatment, and prognosis.  Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010).  And,"[b]ecause the determination of the cause of a patient's illness is an essential part of diagnosis and treatment, a treating physician may testify about the cause of a patient's disease or injury."  Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305, 314 (1995).
            In deciding verbal threshold summary judgment motions, trial courts are to consider certifications of permanency.  Davidson v. Slater, 189 N.J. 166, 188-89 (2007).  It logically follows that the contents of the certification of permanency should be viewed as setting forth facts and opinions that may be elicited at trial.  
            Applying the foregoing principles, defendant was on notice of Dr. Prakhina's opinions regarding causation and permanency, and was well aware that permanency was the central issue in the case.  Accordingly, the trial court's rejection of the defendant's claims of surprise and prejudice was well founded.  There was therefore no abuse of discretion in allowing plaintiff to elicit testimony from Dr. Prakhina consistent with his treatment records and reports, and certification of permanency.  Defendant further claims the trial court committed reversible error by allowing Dr. Prakhina to testify as to his review of plaintiff’s MRI films.  There is no basis for this claim.  Dr. Prakhina testified as to the training he received in MRI interpretation during his internship.  He further explained that he reviews and interprets MRIs on a daily basis in providing treatment for his patients.  The ability to interpret MRIs obviously assisted Dr. Prakhina in the proper placement of the epidural injections administered to plaintiff.
            "Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court.  Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion."  Carey v. Lovett, 132 N.J. 44, 64 (1993).  In this case, it was not necessary for plaintiff to call as a witness the radiologist who initially read the MRIs.  There was no attempt by plaintiff to admit bootstrapped hearsay from a witness who was unqualified to read the MRIs.  See Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006); Agha v. Feiner, 198 N.J. 50, 58 (2009).  Here, Dr. Prakhina testified as to his own interpretation of the films.  In light of the training Dr. Prakhina received in MRI interpretation, and the fact that he reviews MRIs on a daily basis in treating patients, there was no abuse of discretion in regard to the court's finding that Dr. Prakhina possessed the requisite knowledge, experience, and training to testify as to his interpretation of MRIs.  See N.J.R.E. 702.
            Finally, defendant's argument that the verdict was based upon insufficient evidence also fails.  This point assumes that the MRI result was improperly admitted.  Since we have already determined that Dr. Prakhina's interpretation of the MRI was properly admitted, this argument requires no further discussion.