Heinzerling v. Goldfarb

818 A.2d 345, 359 N.J. Super. 1, 2002 N.J. Super. LEXIS 531
CourtNew Jersey Superior Court Appellate Division
DecidedMay 9, 2002
StatusPublished
Cited by1 cases

This text of 818 A.2d 345 (Heinzerling v. Goldfarb) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heinzerling v. Goldfarb, 818 A.2d 345, 359 N.J. Super. 1, 2002 N.J. Super. LEXIS 531 (N.J. Ct. App. 2002).

Opinion

SABATINO, J.S.C.

Defendants in this medical malpractice case have moved in limine to bar the testimony of a registered nurse retained by plaintiff as a trial witness. Plaintiffs desired presentation of the nurse’s testimony raises novel issues under Evid. R. 1006 and other provisions of the New Jersey Evidence Rules.

I.

Sieglinde Heinzerling was diagnosed with lung cancer on May 13, 1997. She died on March 10, 1998. Her estate, as plaintiff in this action, contends that the defendant medical providers deviated from the applicable standards of care by failing, among other things, to diagnose Mrs. Heinzerling’s condition sooner.

Plaintiff seeks to call Audrey Berry, MSN, RN, as a witness at trial. Ms. Berry is a registered nurse, with nearly twenty years of experience in her field as a practitioner and as an instructor. Nurse Berry was not personally involved in Mrs. Heinzerling’s care. Nor has the nurse been retained as an expert witness on deviation. Instead, counsel wishes to have Nurse Berry assist the jury in the damages phase of the trial. In particular, plaintiff intends to have Nurse Berry extract information from Mrs. Heinzerling’s copious medical records and explain to the jury, in more understandable terms, the decedent’s symptoms and the cancer [5]*5treatments and medications administered to her in the last ten months of her life.

The court finds that Nurse Berry has substantial credentials. She received a Bachelors of Science degree in Nursing from the State University of New York at Binghamton in 1983 and a Masters Degree in Community Health Nursing in 1986 from the University of Pennsylvania. Her training included two clinical internships, one focusing on in-home care for the chronically ill and the other involving the treatment of patients with urinary incontinence. She served three years as a staff nurse at the University of Pennsylvania Hospital, six years as a visiting nurse caring for homebound Medicare patients with the Roxborough Memorial Hospital, and another year rendering private hospice care in Bucks County, Pennsylvania.

The record shows that much of Nurse Berry’s career has been devoted to teaching and research. She has been a nursing instructor at the Presbyterian Medical Center of Philadelphia (1988-90), the College of New Jersey (1995-96), and Thomas Jefferson University in Philadelphia (1996-98). She served as Director of the Perry Continence Center for the Bryn Mawr Biofeedback Institute (1986-87). She has published four research abstracts and has given presentations at ten professional conferences held in various states. Since 1998 Nurse Berry has been employed with Thomas Jefferson’s Division of Medical Oncology as a specialist in behavioral epidemiology. Her focus has been on cancer prevention and cancer control intervention studies, research funded with grants from the National Institute of Health and the National Cancer Institute.

As noted above, Nurse Berry has been retained by plaintiffs counsel to review and summarize Mrs. Heinzerling’s medical records compiled from the diagnosis of her cancer on May 13, 1997 through her death on March 10, 1998. During that time the decedent underwent numerous rounds of radiation and chemotherapy treatments, and was administered a host of medications. [6]*6Nurse Berry initially reviewed records for the plaintiff compiled in a three-ring looseleaf binder approximately four inches wide (Exh. D-5). The records were compiled from no less than sixteen physicians who were involved in plaintiffs care and treatment. The records principally are those of plaintiffs primary care physician, Michael Roberts, M.D., her chief oncologist, Doreen Babott, M.D., and two associates of Dr. Babott, David Sokol, M.D., and Joel Dietz, M.D. From those materials, Nurse Berry extracted a subset of the records, which were placed in a smaller three-ring binder (Exh. D-4).

The court finds that the records reviewed by Nurse Berry are extensive and highly technical. By this court’s count, the documents in Exhibit D-4, the condensed version of the records, cover some fifty-three (53) pages. The records were estimated at Nurse Berry’s deposition to be approximately five to nine centimeters thick. The records include entries on at least sixty-six (66) dates, chronicling the intensive cancer treatment that plaintiff received almost daily over the course of ten months. Some of the records are typed. Others are handwritten, with a variety of symbols and shorthand notations typical of medical charts.

The court finds that the records in question are replete with technical medical jargon. The records would not be readily understood by lay jurors without substantial definition and explanation. If the records were admitted as exhibits at trial without explanatory testimony, they would be apt to cause serious confusion in the jury room.

Nurse Berry initially prepared an eight-page summary of the records that she reviewed. Nurse Berry thereafter revised the summary in a document substantially similar to her initial version. The nurse’s summary communicates, in chronological and understandable fashion, the course of plaintiffs treatment for cancer from May 1997 through March 1998. The summary extracts information from the original records about the treatments that plaintiff received, the medications that were prescribed, the diagnostic tests that were performed, and the symptoms that plaintiff [7]*7experienced. At various times it translates technical medical terms appearing in the original records, such as “hemoptysis”, “leukopenia”, “ansculating”, “edema” and “dyspnea.”

Nurse Berry also explains the therapeutic purposes of several of the numerous medications administered to plaintiff as part of her oncology care. She also explains the significance of symbols appearing in the physicians’ handwritten notes on plaintiffs charts; for example, explaining that a doctor’s handwritten upward arrow generally is meant to signify an increase in a rate or other finding.

After plaintiffs counsel supplied Nurse Berry’s summaries in discovery, defense counsel took the nurse’s deposition. The deposition probed into the manner in which the nurse had prepared her work product. The court has reviewed that deposition transcript in detail, as well as Nurse Berry’s two written summaries and the original source documents upon which they were based.

Defendants have objected to Nurse Berry’s proposed testimony on various grounds. They argue that Nurse Berry cannot serve as a fact witness under Evid. R. 602 because she has no personal knowledge of the plaintiffs care and treatment. Lacking a foundation of such personal knowledge, the nurse allegedly cannot offer lay opinion under Evid. R. 701. Defendants further argue that Nurse Berry cannot function as an expert at trial in any manner because she is not a physician. Furthermore, the nurse has not opined on standards of care, causation or other malpractice liability issues. Additionally, defendants characterize Nurse Berry’s testimony as unfairly prejudicial and thus subject to exclusion under the balancing test of Evid. R. 403.

After hearing oral argument, this Court invited the parties to file supplemental briefs on whether Nurse Berry’s testimony might qualify as an admissible summary under Evid. R. 1006 or related evidentiary principles. The court has now considered those submissions and further oral argument.

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818 A.2d 345, 359 N.J. Super. 1, 2002 N.J. Super. LEXIS 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heinzerling-v-goldfarb-njsuperctappdiv-2002.