Myers v. St. Francis Hospital

• Decision Date: 03 June 1966
• Docket Number: No. A--225,A--225
• Parties: , 15 A.L.R.3d 1432 Donald MYERS, individually and as guardian ad litem of Jo Ann Myers, an infant, Plaintiff-Respondent, v. ST. FRANCIS HOSPITAL, a New Jersey corporation, Defendant, and Dr. Alphonse Palmieri, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 377

91 N.J.Super. 377

220 A.2d 693, 15 A.L.R.3d 1432

Donald MYERS, individually and as guardian ad litem of Jo

Ann Myers, an infant, Plaintiff-Respondent, v. ST. FRANCIS HOSPITAL, a New Jersey corporation, Defendant, and Dr. Alphonse Palmieri, Defendant-Appellant.

No. A--225.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 6, 1965.

Decided June 3, 1966.

John G. Rathman, Newark, for appellant (Jung, Selikoff & Rathman, Newark, attorneys).

Arthur Kimmel, New Egypt, for respondent.

Before Judges GOLDMANN, FOLEY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant Dr. Palmieri appeals, pursuant to leave granted, from a Law Division interlocutory order directing him to answer 108 of the 109 interrogatories served upon him.

This is a medical malpractice, personal injury action brought by plaintiff, individually and as guardian Ad litem of Jo Ann Myers, an infant, seeking damages for personal injuries and consequential expenses allegedly sustained as a result of a blood exchange transfusion (a simultaneous withdrawal of the recipient's blood and transfusion with that of the donor.)

The first count of the complaint charges defendant St. Francis Hospital with negligence, and is not involved on this appeal. Counts 2 through 5 are directed at defendant doctor. The second count charges that he negligently, by his own acts and/or the acts of personnel under his care and responsibility, used certain hot water bottles in such manner as to burn the buttocks of the infant. The third count is to the same effect, except that the doctor is described as an 'attending or treating physician.' The fourth count is more specific in charging negligence in the performance of an exchange transfusion. The fifth count contains the additional allegation that the doctor held himself out as a specialist in the treatment of infant children and possessed of a special degree of skill.

Dr. Palmieri's answer denied negligence, alleged that the incident was due to the negligent acts of third persons and, further, that it was the result of the sole negligence of the hospital, its agents, servants or employees. He cross-claimed for contribution from the hospital under the Joint Tortfeasors Act.

Plaintiff, by way of discovery, served Dr. Palmieri with interrogatories. He moved to strike them for failure to comply with the rules of court and as oppressive. Plaintiff counter-moved that he be ordered to answer them. Following oral argument the trial judge ordered defendant to answer all but one, which was stricken. Dr. Palmieri's motion for leave to appeal pursuant to R.R. 2:2--3(a) followed.

We are again asked to determine the scope of permissible pretrial discovery by a plaintiff against a defendant physician in a medical malpractice action. We recently dealt with that question at some length in Rogotzki v. Schept, 91 N.J.Super. 135, 219 A.2d 426 (1966), where, among other things, we held that a defendant doctor in such an action must answer on oral deposition questions directed not only to what he saw and did at the time he treated the patient (operations were involved) but medical opinions formed at that time.

R.R. 4:23--9, dealing with the scope of interrogatories, provides that they may relate 'to any matters which can be inquired into under Rule 4:16--2.' R.R. 4:16--2, relating to the scope of examination on depositions, states 'Unless otherwise ordered by the court as provided by Rule 4:20--2 or 4:20--4, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be admissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. Nor is it ground for objection that the examining party has knowledge of the matters as to which testimony is sought. * * *'

R.R. 4:20--2, 'Orders for the Protection of Parties and Deponents,' provides that the court, upon notice and for good cause shown, may order that the deposition not be taken or limit the scope of the examination; the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression. The other rule referred to, R.R. 4:20--4, 'Motion to Terminate or Limit Examination,' provides that at any time during the taking of a deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in a manner so as unreasonably to annoy, embarrass or oppress, the court may order the examination to cease forthwith, or limit its scope and manner.

The discovery rules are to be construed liberally, for the search for truth in aid of justice is paramount. Concealment and surprise are not to be tolerated in a modern judicial system. Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951). As we said in Interchemical Corp. v. Uncas Printing & Finishing Co., Inc., 39 N.J.Super. 318, 325, 120 A.2d 880 (1956), the broadest possible latitude should be accorded pretrial discovery.

In Rogotzki we again stressed that R.R. 4:16--2 was specifically designed to encourage full pretrial discovery of all matters not privileged or specifically excepted from the operation of the rule (such as the work product of an attorney) which are relevant or may lead to relevant evidence concerning the respective positions of the parties. Like the other discovery rules, it is designed to afford litigants every possible avenue of inquiry before trial in order that justice might be achieved. It is no ground for objection--and R.R. 4:16--2 so specifically provides--that the answers given on discovery will not be admissible at the trial 'if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

The question of relevance in the setting of discovery has received limited attention by our courts. Broadly stated, the test of relevance may best be summarized as, 'Is the propounded question useful?' Relevance is basically a case-by-case proposition. 74 Harv.L.Rev. 940, 1008 (1961).

Defendant's attack upon the interrogatories is contained under four points of his brief, and we shall deal with the questions so grouped in the order of his presentation.

I

Defendant submits that the following interrogatories are irrelevant:

6 through 8, inquiring as to his profession and license.

9 through 12, his education and internship.

13 through 18, his specialization and training and experience therein.

19 through 23, his certification by boards.

24, his hospital connections.

25 through 28, as to teaching in medical institutions.

29, membership in medical societies.

30 and 31, his writings in the field of pediatrics.

32, 33 and 72, the number of occasions he treated conditions similar to infant plaintiff's, inducing him to perform an exchange transfusion, and the name, address, date and factual account of every patient for whom he performed an exchange transfusion in the preceding two years.

83, the particular condition or conditions for which the baby was then being treated, and by whom.

85, anticipated expenditures for treatment of the alleged injuries.

92 and 93, whether the infant is still his patient, and his present treatment of her.

99 and 100, what would be entailed in performing plastic surgery to remove the scars and, if skin grafts would be involved, describing them 102 and 105, as to books defendant has in his working library dealing with exchange transfusions in infants, and as to such books in the hospital library.

It should be observed, initially, that although R.R. 4:16--2 authorizes discovery of matters 'relevant to the subject matter involved in the pending action,' it does not limit the inquiry to matters relevant to the issues of the case. One of the matters 'relevant to the subject matter,' as distinguished from the issues, may well be defendant's credibility. See Strecker v. Devine, 11 N.J.Super. 272, 275, 78 A.2d 320 (Law Div. 1951). N.J.S. 2A:84A--3, N.J.S.A., defines 'relevant evidence' as meaning evidence 'having any tendency in reason to prove any material fact.' A doctor's training, experience and medical competency in treating conditions similar to those for which he treated the infant plaintiff have a 'tendency in reason to prove' that he may not have had the qualifications or experience to perform the blood exchange transfusion. In every malpractice action defendant's possession of the required knowledge and skill ordinarily possessed and exercised in similar situations by the member of the profession practicing in his field is clearly in issue under substantive law and the pleadings. 1 Wigmore on Evidence (3d ed. 1940), § 67, p. 487; and cf. Schueler v. Strelinger, 43 N.J. 330, 344, 204 A.2d 577 (1964).

Defendant will undoubtedly take the witness stand and testify that the acts he performed were entirely necessary and proper. Plaintiff is entitled to have defendant answer interrogatories Nos. 6 through 33 and 72 so that he may be in a position to cross-examine the doctor with respect to his qualifications and experience. These interrogatories are especially relevant with regard to the fifth count, charging defendant with holding himself out as a specialist in the treatment of infant children. They are also relevant as to the other counts.

Defendant's contention that they are irrelevant because they seem more like an attempt to qualify him as an expert is without merit. So, too, as to his claim that the questions are improper because New Jersey law prohibits one from calling an...