Plaintiff Monica Graham was awarded $325,000 in damages in a lawsuit she filed against defendant Carole Venetianer for injuries she suffered in a car accident with defendant. Plaintiff filed an appeal of this jury verdict, arguing that defense counsel should not have been permitted to cross-examine her using medical records not admitted into evidence. The issue in Graham v. Venetianer, 2024 N.J. Super. Unpub. LEXIS 819 (App. Div. May 8, 2024) is whether the trial court made an error in permitting plaintiff to be cross-examined concerning her prior medical history, as well as focusing on her pre-accident admissions in those records during the summation to the jury.
Plaintiff was in an accident with the vehicle driven by the defendant on April 7, 2016. Following the accident, she treated for spinal injuries, resulting in spinal surgeries performed by a neurosurgeon in 2018 and 2019. The plaintiff had medical experts testify for her at trial, which did not include her family doctor, Dr. Linda Guirguis. However, on cross-examination, defense counsel questioned plaintiff about her prior medical history and confronted her with admissions and statements attributed to her about her pain and therapy regimen in Dr. Guirguis’s medical records. These records were never admitted into evidence.
The trial court found that the defense’s cross-examination of plaintiff regarding her pre-accident medical treatment was proper. Upon appeal, plaintiff argued that she was unfairly prejudiced by defense counsel’s use during cross-examination of the pre-accident medical records.
In analyzing the arguments made by the plaintiff, the Appellate Division noted that under the New Jersey Rules of Evidence, there were certain exceptions to the hearsay rule which permitted an out of court statement. One of the exceptions is statements made for purposes of medical diagnosis or treatment. (N.J.R.E. 803(c)(4)). Pursuant to this rule, statements made for the purposes of medical diagnosis would be admissible when used to show the existence of a medical issue.
The Appellate Division concluded that the scope of plaintiff’s cross-examination, to the extent it focused on her medical condition prior to her 2016 accident, was permissible. The defense asked plaintiff to confirm her pre-accident statements to Dr. Guirguis about her prior neck and back pain, pain from sitting and standing while on vacation, two visits to her radiologist, continuous follow up on neck and back complaints and a prescription for pain medication. The statements made by plaintiff were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment.
The Appellate Division also found that plaintiff was not unfairly prejudiced by defense counsel’s reference to the same medical records in summation. First, it noted that plaintiff’s counsel failed to object during the summation. In the appeal, Plaintiff had targeted that part of defendant’s closing which referenced her visits and physical complaints to her family doctor in 2015. The Appellate Division found that there was “nothing in defense counsel’s closing that could be characterized as plain error which was clearly capable of leading to an unjust result.” Thus, the Appellate Division refused to disturb the trial court rulings and the jury verdict.
