The New Jersey Supreme Court will consider the appeal of a doctor who had a medical malpractice no-cause verdict reversed because his trial counsel failed to disclose that his trial testimony significantly differed from prior statements.
An appeals panel last March awarded a new trial to the plaintiff after a jury absolved the defendant, Dr. Jack Goldberg, of liability.
The Supreme Court on Oct. 16 posted T.L. v. Goldberg among its cases to be heard, with the question presented: “In this medical malpractice action, did defense counsel’s failure to disclose that the defendant doctor’s trial testimony would differ from his interrogatory answers and deposition testimony result in plain error that required a new trial?”
Goldberg’s appeal to the Supreme Court, however, was guaranteed as a matter of right since there was a 2-1 split in a published decision.
The Appellate majority ordered a new trial in the medical malpractice suit, where defense counsel, who was not identified, failed to disclose the physician’s contradictory testimony.
In the ruling, the majority ordered a new trial, finding that the defense lawyer failed to discharge his duty of candor to the court and counsel, depriving plaintiffs of a fair trial.
The case concerned a plaintiff, identified only as T.L., who sought treatment from defendant, Goldberg, a hematologist, for a blood disorder. Goldberg prescribed a drug named Pegasys, which the suit claimed should not have been prescribed in light of her medical history. As a result of taking the drug, T.L. developed a severe neurological disorder that left her paralyzed on the right side, according to the decision.
Goldberg denied deviating from the standard of care. During discovery, he certified in an interrogatory answer that he did not recall relying on any medical text or publication in connection with his treatment of T.L., and in a deposition said he was not aware of any studies in the Journal of Clinical Oncology about the use of Pegasys to treat patients with the blood disorder that afflicted T.L., the appeals court noted.
But during trial in 2015, Goldberg said he relied on a 2009 article in the Journal of Clinical Oncology, suggesting that Pegasys might be an effective treatment for the condition that T.L. had, according to the decision.
T.L. did not object to Goldberg’s reference to the article, and did not raise the differences between his discovery responses and trial testimony until she moved for a new trial, which was denied, the court said.
On appeal, T.L. argued that the trial court erred by denying her motion for a new trial. She contended that a new trial was warranted based on the discrepancy.
In the ruling, Appellate Division Judges William Nugent and Richard Geiger said Goldberg’s failure to disclose the anticipated material change in testimony misled the plaintiff, and the failure to grant a mistrial was an abuse of discretion.
Nugent and Geiger said the remedy of a reversal and new trial “serves a salient purpose: trial counsel should not be rewarded for violating a duty of candor to the court and other counsel.”
The dissenter, Judge Heidi Currier, disagreed that failure to raise the discrepancy was plain error. “After twelve days of trial in this complex matter with dueling expert testimony, I cannot agree with the majority that defendant’s brief references to a clinical study during his more than four hours of testimony was a clear miscarriage of justice such as to require a reversal of the jury’s verdict and a new trial,” Currier said.
Neither Goldberg’s attorney, Peter Lynch of Christie & Young in Philadelphia, who represented Goldberg and his employer, Penn Medicine Cherry Hill, nor the plaintiff’s attorney, Michael Zerres of Blume Forte Fried Zerres & Molinari in Chatham, returned calls seeking comment.