Beck v. Bluestein

• Decision Date: 21 May 1984
• Citation: 476 A.2d 842,194 N.J.Super. 247
• Parties: Sandra BECK, et al., Plaintiffs-Appellants, v. Sanfurd G. BLUESTEIN, M.D., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 247

194 N.J.Super. 247

476 A.2d 842

Sandra BECK, et al., Plaintiffs-Appellants, v. Sanfurd G. BLUESTEIN, M.D., et al., Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued March 26, 1984.

Decided May 21, 1984.

Martin J. Arbus, Oceanport, for plaintiffs-appellants.

Douglas J. Harper, Deputy Atty. Gen., for defendant-respondent State Bd. of Medical Examiners (Irwin I. Kimmelman, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Douglas J. Harper, on the brief).

William C. Cagney, Newark, for defendant-respondent Sanfurd G. Bluestein, M.D. (Markey & Dailey, Hackensack, attorneys; John P. Markey, Hackensack, of counsel; William C. Cagney, on the brief).

No brief was filed on behalf of defendant-respondent Alberto C. DeDios, M.D.

Before Judges ARD, MORTON I. GREENBERG and TRAUTWEIN.

The opinion of the court was delivered by

ARD, P.J.A.D.

This is a wrongful death action. Plaintiffs, Sandra Beck and Stanley Arbus, individually and as executors of the Estate of Yetta Arbus, commenced this action by the filing of a complaint on October 27, 1981. The complaint names, inter alia, Sanfurd G. Bluestein, M.D., and Albert DeDios, M.D., as defendants. It alleges that said defendants negligently administered emergency treatment to Yetta Arbus and negligently injected her with a dye or radioactive isotope for the purpose of a lung scan which ultimately led to her death.

Prior to the commencement of the civil action, plaintiffs instituted a letter complaint against the defendants with the State Board of Medical Examiners on December 5, 1980. The complaint incorporated the aforementioned allegations. In response to this complaint, the Board summoned Drs. Bluestein and DeDios to appear before an executive committee for the purpose of reviewing the operative facts and to inquire into the circumstances surrounding the incident. The inquiry was conducted in executive session. A record was made of all testimony.

Thereafter, the Board issued decision letters in which it reprimanded Drs. Bluestein and DeDios and directed the institution of corrective procedures. It is noteworthy that the Board made reference to the testimony of Dr. DeDios in its letter decision. During pretrial discovery in the civil action, plaintiffs deposed Dr. DeDios. Plaintiffs then subpoenaed the transcripts and record of the hearing before the Board of Medical Examiners. They alleged discrepancies between Dr DeDios' testimony before the Board and his pretrial deposition testimony in the civil action. The Board refused to comply with the subpoena, and as a result, plaintiffs filed a motion before the trial court to compel production of the subpoenaed documents.

The trial judge, following oral argument and after an in camera inspection of the transcripts of the doctors' testimony before the Board, denied plaintiffs' motion to compel production of the documents. We granted leave to appeal from said order.

On appeal, plaintiffs argue that the trial judge committed error in refusing to order the production of the requested material. Plaintiffs contend that they are entitled to the production of the aforementioned transcripts under the Right To Know Law, N.J.S.A. 47:1A-1, et seq.; under the common law right of a citizen to inspect public records, and pursuant to the discovery procedures contained in the Rules of Civil Practice and Procedure. R. 4:10-1, et seq.

For the purpose of the motion, there is little dispute over the facts. Decedent appeared at the office of Dr. Bluestein and Dr. DeDios for a lung scan. She was referred to the doctors by a personal physician because of complaints of shortness of breath and hemoptysis. The lung scan was performed by Dr. DeDios ¹ to rule out the possibility of a pulmonary embolism. After the injection of a certain material necessary to perform the lung scan, the decedent displayed some respiratory distress and began coughing up blood. She was taken by ambulance to the hospital where she expired shortly thereafter. The cause of death was acute respiratory failure, secondary to pulmonary edema with shock possibly due to pulmonary emoli or arteriosclerotic heart disease.

In complaining to the Board of Medical Examiners, the plaintiffs made a general assertion of negligence and, in particular alleged that the defendants' office was ill-equipped with emergency resuscitative devices and lacked the proper personnel to handle the adverse reaction of the decedent to the injection of the dye or isotopes. They also alleged that the defendants allowed approximately 45 minutes to pass without summoning the ambulance or otherwise causing her to be admitted to the hospital.

As indicated, in response to the letter complaint, the Board summoned Drs. Bluestein and DeDios to appear before an executive committee for the purpose of reviewing the operative facts and to inquire into the circumstances surrounding the incident. Dr. DeDios testified before the executive committee on April 22, 1981. Dr. Bluestein testified on August 5, 1981. It is the transcripts of the doctors' testimony which are the subject of this appeal.

Following the doctors' testimony and after a review of the emergency room record, the Board issued decision letters reflecting its evaluation in which it reprimanded Dr. DeDios based upon his failure to prepare a patient record required by N.J.A.C. 13:35-6.12; failure to identify himself as a responsible physician in the office; allowing his judgment not to perform the procedure in the office to be overriden by the patient's request to have the procedure performed; failure to take prompt emergency action when the decedent expressed symptoms of a dire emergency, and failure to instruct the office staff on emergency procedures, including contact with the hospital. Dr. DeDios was reprimanded and directed to immediately institute corrective procedures in each of the aforementioned problems. Dr. Bluestein was also reprimanded and admonished as a "responsible partner" to take the aforementioned corrective measures. Both decision letters were forwarded to plaintiffs' counsel. ²

Thereafter, during the law suit, plaintiffs deposed Dr. DeDios and concluded there was a discrepancy in his testimony and the reference to his testimony in the Board's decision letters. As a result thereof, plaintiffs subpoenaed the transcript and record of the Board of Medical Examiners. The claimed inconsistencies are as follows:

1. The Board's findings state that Dr. DeDios asserted that the decedent was suffering from dyspnea (respiratory difficulty), orthopnea (inability to breathe, except in an unright position) and hemoptysis (expectoration of blood) upon her arrival to the office; whereas in deposition, Dr. DeDios testified that the decedent was not suffering from said conditions when she arrived at the office;

2. The Board found that the decedent's symptoms worsened significantly after the injection; whereas in deposition, Dr. DeDios testified that her condition remained the same after the injection;

3. The Board found that the office contained emergency equipment, including oxygen and that Dr. DeDios treated the decedent with oxygen; whereas in deposition, Dr. DeDios testified that the decedent was not treated with oxygen because the oxygen tank was empty.

Plaintiffs seek the production of the transcripts of the doctors' testimony for the purpose of impugning Dr. DeDios' credibility when, and if, he testifies, and as direct evidence of the circumstances surrounding the decedent's visit to defendants' office. Originally the trial judge denied plaintiffs' motion to compel the production of transcripts without reviewing the discovery material. We granted plaintiffs' leave to appeal and reversed the order of the trial judge. The matter was then remanded for reconsideration of plaintiffs' application with the direction that the trial judge review in camera the material sought to be discovered. Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. 366, 375-376, 294 A.2d 425 (1972). Thereafter, the trial judge again denied plaintiffs' application and issued a letter opinion in support of the denial concluding that the State's interest in maintaining confidentiality clearly outweighed the need for discovery in this matter. We again granted plaintiffs' application for leave to appeal. ³

It is axiomatic that:

A person seeking access to public records may today consider at least three avenues of approach. He may assert his common law right as a citizen to inspect public records; he may resort to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., or, if he is a litigant, he may avail himself of the broad discovery procedures for which our rules of civil practice make ample provision. [Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. at 372, 294 A.2d 425].

Our Legislature in enacting the Right To Know Law, N.J.S.A. 47:1A-1, et seq., declared "... it to be the public policy of this State that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. The definition of a public record is contained within Section 2 of that statute which provides:

Except as otherwise provided in this act or by any other statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any Federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order of the Governor, all records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof (each of which is hereinafter referred to...