NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2781-15T3
NORMA S. EHRLICH, APPROVED FOR PUBLICATION Plaintiff-Appellant, July 25, 2017 v. APPELLATE DIVISION
JEFFREY J. SOROKIN, M.D.,
Defendant-Respondent. ————————————————————————————————
Submitted May 25, 2017 – Decided July 25, 2017
Before Judges Hoffman, O'Connor and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 2859-13.
M. Mark Mendel, LTD., attorneys for appellant (John J. Del Casale, on the brief).
Stahl & DeLaurentis, P.C., attorneys for respondent (Sharon K. Galpern, on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
Plaintiff Norma S. Ehrlich appeals from a January 28, 2016
Law Division order dismissing her complaint against defendant
Jeffrey J. Sorokin, M.D., based on a no-cause jury verdict in
her medical negligence action. This suit arose after plaintiff suffered complications from a colonoscopy and polypectomy
procedure defendant performed in 2011. On appeal, plaintiff
raises three claims of trial error, asserting the judge (1)
admitted irrelevant evidence regarding informed consent, (2)
delivered inadequate jury instructions on the standard of care,
and (3) admitted net opinion testimony. Following our review of
the record and applicable law, we agree the admission of
informed consent evidence constituted harmful error. R. 2:10-2.
We therefore vacate the order of dismissal and remand for a new
trial consistent with this opinion.
I.
We begin by summarizing the most pertinent evidence from
the record. In May 2003, plaintiff first came under the care of
defendant, a gastroenterologist, after her family physician
referred her based upon complaints of back pain and rectal
bleeding. Defendant recommended plaintiff undergo a
colonoscopy, which he performed on May 27, 2003.
Plaintiff's colonoscopy revealed the presence of a polyp at
the tip of her cecum opposite the ileocecal valve. According to
defendant, because the polyp's size and histologic type made it
a significant risk for malignancy, he recommended plaintiff
undergo surgery to remove a portion of her colon. Plaintiff
declined surgery, so defendant referred her to another
2 A-2781-15T3 gastroenterologist, Dr. Jerome Waye, one of the few doctors who
— at that time — removed polyps with a colonoscope.
On November 14, 2003, Dr. Waye performed this procedure;
however, plaintiff subsequently suffered a hemorrhage. In May
2004, plaintiff returned to the care of defendant, who informed
her she needed a surveillance colonoscopy. Because plaintiff
suffered from recurrent polyps, defendant performed five
colonoscopy and polypectomy procedures between 2004 and 2011.
Defendant used several techniques to remove plaintiff's
recurrent polyps. One of these procedures, the "saline lift"
technique, involves injecting fluid into the colon to lift the
polyp from the colon wall. Once lifted, the polyp is usually
removed with a hot or cold snare.
An alternative procedure, Argon Plasma Coagulation (APC),
utilizes a thin catheter passed through a channel. Conductive
argon gas then passes through the channel to the location of the
polyp, followed by an electrical charge that vaporizes the cells
of the polyp. Unlike the snare technique, the APC catheter does
not make direct contact with the polyp.
Defendant applied the following techniques to remove polyps
from plaintiff's colon on the following dates:
November 16, 2004 - saline lift to remove a polyp with a hot snare.
3 A-2781-15T3 December 28, 2005 - saline lift to remove a polyp with hot and cold snares.
March 20, 2007 - hot snare to remove a polyp; at trial, defendant explained he did not use saline because his "clinical judgment was that it did not need the saline."
September 21, 2009 – hot snare to remove a polyp, followed by the APC to "ablate whatever remaining polyp tissue was there."
August 29, 2011 – APC to remove a polyp.
Following the August 29 procedure, defendant discharged
plaintiff to her home; however, at approximately 3:00 a.m. on
August 30, plaintiff awoke in pain and told her husband, "[C]all
9-1-1[,] I'm in trouble." Emergency personnel transported
plaintiff to Virtua Hospital, where she underwent emergency
surgery. Virtua doctors determined plaintiff suffered from a
perforation of her colon and peritonitis. The doctors performed
a right hemicolectomy, ileostomy, and mucous fistula on
plaintiff. She later underwent surgery to reverse the
ileostomy.
Plaintiff filed her complaint against defendant on July 12,
2013, alleging he negligently performed the August 2011
procedure by "[f]ailing to inject the polyp and surrounding
colon with Saline to create a cushion underneath the polyp."
She did not assert a claim for lack of informed consent.
4 A-2781-15T3 The case proceeded to a jury trial in January 2016. Prior
to testimony, plaintiff moved in limine to exclude evidence
regarding her consent to the colonoscopy procedures from 2003 to
2011. The trial judge denied the motion, finding "the forms and
any information provided to the patient was part of the standard
of care, and therefore relevant." Plaintiff again raised the
issue after opening statements, but the judge reaffirmed his
decision.
Plaintiff then testified, describing her history of
treatment with defendant. Because the trial court denied
plaintiff's in limine motion to exclude informed consent
evidence, plaintiff's counsel also questioned plaintiff
regarding the various consent forms she signed before each
procedure completed by defendant.1
On cross-examination, defense counsel asked plaintiff about
the language from one of her consent forms, which stated the
procedure could result in injury and hospitalization. Plaintiff
said the form indicated "passage of the instrument may result in
an injury, but it never said that there would be a possibility
1 During the charge conference following the conclusion of testimony, plaintiff's counsel explained that he addressed informed consent matters during his case in chief only after the trial court rejected his request to exclude informed consent evidence as irrelevant.
5 A-2781-15T3 that my colon might be burnt." Defendant also asked plaintiff
about the 2011 consent form, which she signed in defendant's
office in June 2011, two months before the August 2011
procedure. Plaintiff reiterated defendant never discussed the
potential for burning.
Plaintiff presented expert testimony from
gastroenterologist Stuart Finkel, M.D., who asserted defendant
deviated from the standard of care in both the 2009 and 2011
procedures. Regarding the 2011 procedure, Dr. Finkel stated the
APC burned plaintiff's colon, resulting in the perforation,
because defendant "failed to perform saline injection lift
technique prior to that application of the APC, which increased
her risk for this particular complication." He noted "that the
finding of a flat, broad, [two] centimeter sessile polyp in . .
. the thinnest area of the colon and most at risk for
perforations" required defendant to "create [a] cushion of
saline" before using the APC; defendant's failure to do so
deviated from the standard of care.
Defendant presented expert testimony from Timothy Hoops,
M.D. Prior to Dr. Hoops' testimony, the judge held an N.J.R.E.
104 hearing to determine the admissibility of his opinion on
proximate cause. According to Dr. Hoops, plaintiff's multiple
polypectomies likely would have scarred her tissue or resulted
6 A-2781-15T3 in fibrosis, which would make the saline lift procedure
ineffective by holding down the surface of the tissue. He gave
his opinion to a reasonable degree of medical probability, based
on "years of both my experience, as well as experience of people
that I've seen . . . and on the medical literature." However,
Dr. Hoops conceded none of defendant's records for plaintiff
mentioned scarring or fibrosis. Plaintiff thus moved to
preclude this testimony as net opinion, which the trial judge
denied. Dr. Hoops then testified to this information before the
jury.
Dr. Hoops also testified that defendant's use of the APC
"was within the accepted standards of care." He noted, "At the
time [the 2011] procedure was performed," there were no
guidelines regarding the use of saline with the APC, and
"[t]here was nothing for it or against it;" in addition, he had
never seen a doctor use them together. He further noted, "[A]t
the time of the procedure . . . there was no evidence that doing
the saline lift would have reduced the risk for perforation."
On cross-examination, Dr. Hoops acknowledged that saline lifts
are "very safe" overall, but added, "[T]here might be some risks
for infection."
Defendant testified he did not use the saline lift
technique during the August 2011 procedure because "there was no
7 A-2781-15T3 literature to support the use of the saline lift technique with
an [APC]." He said there is a risk for perforation any time he
performs a colposcopy, and burning a colon is a "known
complication of the use of [the APC] for the performance of
colonoscopy."
At the end of the testimony, the trial judge allowed the
jury to review plaintiff's informed consent documents as part of
its deliberation. Responding to plaintiff's objection, the
judge stated:
If you can go and talk about all that Dr. Sorokin had done in 2003, 2004, 2005 and so on, and exclude this small piece of it, that cannot be consistent with notions of justice or the search of truth. And maybe if I mis- characterized it as going to the standard of care that was my fault and a mistake. But in a fundamental sense, there could be no way to have a fair trial that would allow the plaintiff to explore this treatment for all these years, include the detail of it, including almost every single statement written by Dr. Sorokin, and exclude the informed consent. That can't be consistent with a notion of a fair trial.
Plaintiff then submitted a proposed jury instruction on the
standard of care. The trial judge denied this request and
proceeded to charge the jury under the model jury charge. The
next day, the jury asked the court to reiterate "the definition
of standard of care[.]" Plaintiff again requested a custom jury
charge, but the judge re-read the previous instruction.
8 A-2781-15T3 Following additional deliberation, the jury reached a 6-1
verdict that defendant did not breach the standard of care.
Plaintiff filed a motion for a new trial, which the judge
denied. This appeal followed.
II.
We first address plaintiff's contention the trial judge
erred by allowing defendant to present irrelevant and misleading
evidence of her informed consent to the colonoscopy procedures.
Plaintiff argues, because she did not assert a claim for lack of
informed consent, the sole issue was whether defendant was
negligent for failing to perform a saline lift with the APC.
She asserts a new trial is necessary because defendant misled
the jury to believe consent was connected to the standard of
care. We are constrained to agree.
Our review of the trial court's evidential rulings "is
limited to examining the decision for abuse of discretion."
Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div.) (quoting
Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)), certif. denied, 223
N.J. 163 (2015). We will only reverse if the error "is of such
a nature as to have been clearly capable of producing an unjust
result." Ibid. (quoting R. 2:10-2).
Pursuant to our rules, evidence is relevant if it has "a
tendency in reason to prove or disprove any fact of consequence
9 A-2781-15T3 to the determination of the action." N.J.R.E. 401. Relevant
evidence is generally admissible, N.J.R.E. 402, but "may be
excluded if its probative value is substantially outweighed by
the risk of . . . undue prejudice, confusion of issues, or
misleading the jury." N.J.R.E. 403.
To prevail in a medical malpractice action based upon a
deviation from the standard of care, the plaintiff "must
generally present expert testimony establishing '(1) the
applicable standard of care; (2) a deviation from that standard
of care; and (3) that the deviation proximately caused the
injury.'" Newmark-Shortino v. Buna, 427 N.J. Super. 285, 304
(App. Div. 2012) (quoting Telihaber v. Greene, 320 N.J. Super.
453, 465 (App. Div. 1999)), certif. denied, 213 N.J. 45 (2013).
"A physician must act with that degree of care, knowledge, and
skill ordinarily possessed and exercised in similar situations
by the average member of the profession practicing in the
field." Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626
(1999).
Informed consent is generally unrelated to the standard of
care for performing medical treatment. Eagel v. Newman, 325
N.J. Super. 467, 474-75 (App. Div. 1999).
[T]he informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or
10 A-2781-15T3 administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each.
[Ibid.]
"Although each cause of action is based on different
theoretical underpinnings, 'it is now clear that deviation from
the standard of care and failure to obtain informed consent are
simply sub-groups of a broad claim of medical negligence.'"
Newmark-Shortino, supra, 427 N.J. Super. at 303 (quoting Howard
v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002)).
However, these theories are distinguishable because they
represent two independent duties: "(1) the duty to diagnose and
treat a patient in accordance with the standard of care; and (2)
the duty to disclose all medically reasonable treatment
alternatives . . . so that a patient may make an informed
decision." Ibid. (citing Matthies v. Mastromonaco, 160 N.J. 26,
39-40 (1999)).
Plaintiffs must meet a different, four-part test to
establish the prima facie case for lack of informed consent.
See Telihaber, supra, 320 N.J. Super. at 465. "[T]o sustain a
claim based on lack of informed consent, the patient must prove
that the doctor withheld pertinent medical information
11 A-2781-15T3 concerning the risks of the procedure or treatment, the
alternatives, or the potential results if the procedure or
treatment were not undertaken." Howard, supra, 172 N.J. at 548.
As plaintiff recognizes, there are no New Jersey cases
specifically addressing the admissibility of informed consent
evidence where the plaintiff has only asserted a claim of
negligent treatment. She therefore relies on cases from other
state courts addressing this issue, in particular a recent
Pennsylvania Supreme Court decision, Brady v. Urbas, 111 A.3d
1155 (Pa. 2015).
In Brady, the plaintiff asserted a claim for negligent
treatment and moved in limine to exclude any consent-related
evidence; the trial court denied her motion. After reviewing
the evidence during deliberations, the jury returned a verdict
in favor of the plaintiff's doctor. Id. at 1158. On appeal,
the doctor argued the evidence was relevant to establish the
applicable standard of care. Id. at 1159. The Pennsylvania
Supreme Court disagreed, finding "the fact that a patient may
have agreed to a procedure in light of the known risks does not
make it more or less probable that the physician was negligent
in either considering the patient an appropriate candidate for
the operation or in performing it in the post-consent
timeframe." Id. at 1162. The Court also concluded that such
12 A-2781-15T3 evidence could confuse the jury by distracting it from whether
the doctor breached the standard of care. Id. at 1163-64.
The other state courts plaintiff cites reached similar
conclusions. See Baird v. Owczarek, 93 A.3d 1222, 1232 (Del.
2014) (agreeing that "evidence of informed consent, such as
consent forms, is both irrelevant and unduly prejudicial in
medical malpractice cases without claims of lack of informed
consent" (quoting Hayes v. Camel, 927 A.2d 880, 889 (Conn.
2007))); Waller v. Aggarwal, 688 N.E.2d 274, 275 (Ohio Ct. App.
1996) ("[T]he issue of informed consent was not relevant to
appellant's claim of negligence."); Wright v. Kaye, 593 S.E.2d
307, 317 (Va. 2004) (holding where the plaintiff did not plead
lack of informed consent, "evidence of information conveyed to
[plaintiff] concerning the risks of surgery in obtaining her
consent is neither relevant nor material to the issue of the
standard of care"); cf. Hayes, supra, 927 A.2d at 889-91
(holding the trial court abused its discretion by admitting such
evidence, but finding the error harmless).
Additional state courts have found evidence of informed
consent irrelevant and potentially prejudicial where the issue
was negligent treatment. See Schwartz v. Johnson, 49 A.3d 359
(Md. Ct. Spec. App. 2012); Wilson v. Patel, 517 S.W.3d 520 (Mo.
2017); Warren v. Imperia, 287 P.3d 1128 (Or. Ct. App. 2012); cf.
13 A-2781-15T3 Liscio v. Pinson, 83 P.3d 1149, 1156 (Colo. App. 2003) (finding
informed consent evidence may be irrelevant but not reversible
error where the plaintiff "opened the door").
Furthermore, although not directly on point, our decision
in Gonzalez v. Silver, 407 N.J. Super. 576 (App. Div. 2009), is
instructive on this issue. Gonzalez was a medical malpractice
action wherein the defendant doctor attempted to introduce
hearsay testimony regarding statements plaintiff made about the
cause of his injury. Id. at 593. We held that such testimony
was irrelevant to the issue of whether or not the defendant
doctor provided proper medical care, and though it was perhaps
relevant for impeachment, it carried "an enormous potential for
prejudice." Id. at 594-95. We concluded the balance "should
have weighed in favor of excluding such evidence." Id. at 595.
Considering Gonzalez and the non-binding but persuasive
out-of-state cases, we are convinced the admission of the
informed consent evidence in this matter, where plaintiff
asserted only a claim of negligent treatment, constituted
reversible error. The only issue at trial was whether
defendant's use of the APC without a saline lift deviated from
the standard of care. Plaintiff's acknowledgment of the risk
for perforation had no bearing on this determination. Indeed,
although negligent treatment and informed consent fall under the
14 A-2781-15T3 umbrella of medical negligence, our law clearly distinguishes
the two claims, and they require different elements of proof.
See Newmark-Shortino, supra, 427 N.J. Super. at 304. We
therefore conclude the informed consent evidence was irrelevant
to the issue presented at trial, N.J.R.E. 401, and should have
been excluded on plaintiff's motion in limine.
We reject defendant's assertion the evidence was relevant
to "counter plaintiff's testimony on direct examination that
[defendant] gave plaintiff absolutely no information about her
condition and treatment." We also disagree with the judge's
end-of-trial conclusion that plaintiff opened the door by
exploring her entire history with defendant. Rather, the record
shows that after twice attempting to exclude this evidence,
plaintiff tried to minimize its damage by addressing it on
direct examination. As the judge incorrectly ruled the informed
consent evidence admissible prior to any testimony, we flatly
reject defendant's attempt to assign relevance to this evidence
after the fact. Moreover, we find defendant went beyond the
purported purpose of rebutting plaintiff's claims by raising the
consent issue during Dr. Hoops' testimony and during summation.
We further conclude this evidence had the capacity to
mislead the jury, N.J.R.E. 403, thereby making it capable of
producing an unjust result. R. 2:10-2. As the Pennsylvania
15 A-2781-15T3 Supreme Court noted, "the jury might reason that the patient's
consent to the procedure implies consent to the resultant
injury, see Wright, [supra,] 593 S.E.2d at 317, and thereby lose
sight of the central question pertaining to whether the
defendant's actions conformed to the governing standard of
care." Brady, supra, 111 A.3d at 1163. This was especially
true here, where the jury received the consent forms as part of
their deliberations, immediately after hearing defense counsel's
summation referencing this issue.
Accordingly, we conclude that the admission of the informed
consent evidence constituted reversible error. We therefore
vacate the dismissal order and remand for a new trial.
III.
In order to provide guidance to the court on remand, we
briefly address plaintiff's remaining arguments and find they
lack merit. Plaintiff first argues the trial judge erred by
rejecting her proposed jury charge on the standard of care. The
proposed charge added the following language to the model jury
charge:
The law recognizes that the practice of medicine is not an exact science. Therefore, the practice of medicine according to accepted medical standards may not prevent a poor or unanticipated result. However, when a risk is obvious, and a precautionary measure available, an industry or professional standard that does not call
16 A-2781-15T3 for such precaution is not conclusive if, regardless of the standard or custom, the exercise of reasonable care would call for a higher standard. Therefore, whether Dr. Sorokin was negligent depends not on the outcome but on whether he adhered to or departed from the applicable standard of care.
[(emphasis added).]
Plaintiff based this language on our decision in Estate of
Elkerson v. North Jersey Blood Center, 342 N.J. Super. 219 (App.
Div.), certif. denied, 170 N.J. 390 (2001). In Elkerson, the
plaintiff produced expert testimony establishing that the entire
blood bank industry was following inadequate safety standards in
screening donated blood, when a better test was known and
available. Id. at 233-35. In that context, we held the trial
court erred in limiting the jury to considering whether the
defendant blood bank followed the prevailing industry practice
at the time of the plaintiff's blood transfusion. "[T]he trial
court's negligence charge constitutes reversible error because
it did not allow the jury to reject the industry standard
applied uniformly by blood banks in 1983 in favor of its own
expert-informed judgment in determining whether that custom was
or was not reasonable." Id. at 235.
Elkerson is inapplicable here because plaintiff did not
produce an expert report to opine the existing standard of care
for APC use was unreasonable. Rather, this was a case where
17 A-2781-15T3 plaintiff presented expert testimony that the standard of care
required defendant to use the saline lift with the APC, and
defendant presented expert testimony that the standard of care
did not require this technique. Unlike in Elkerson, here no
guidelines stated doctors should not use a saline lift with the
APC. We therefore find the trial judge did not err by rejecting
plaintiff's requested charge.
Plaintiff also argues the trial judge erred by permitting
Dr. Hoops to deliver net opinion testimony regarding proximate
cause. "The net opinion rule is a 'corollary of [N.J.R.E. 703]
. . . which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)
(alterations in original) (quoting Polzo v. County of Essex, 196
N.J. 569, 583 (2008)). A net opinion is "a bare conclusion
unsupported by factual evidence." Creanga v. Jardal, 185 N.J.
345, 360 (2005). To avoid a net opinion, the expert must "'give
the why and wherefore' that supports the opinion." Townsend,
supra, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 144 (2013)).
Experts are required to "be able to identify the factual
bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are
18 A-2781-15T3 reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)). The net opinion rule is a "prohibition
against speculative testimony." Harte v. Hand, 433 N.J. Super.
457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J.
Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607
(1998)).
Dr. Hoops testified that plaintiff's multiple polypectomies
would have caused scarring in her colon, likely making the
saline lift procedure ineffective. Plaintiff asserts, because
defendant's notes contained no reference to scar tissue, Dr.
Hoops' testimony on this issue "constituted nothing more than
mere speculation." Although the record did not show definitive
evidence of scarring, Dr. Hoops set forth the factual basis for
his opinion, noting in the "majority of cases," a polypectomy
procedure would result in scarring, and it was "[a]bsolutely
more likely than not that . . . [the] area would have been
scarred down and would not have lifted. The . . . saline lift
would have been unsuccessful; you would have had a non-lift
sign." He based this opinion on his medical experience.
Therefore, giving deference to the trial judge's decision on
expert testimony, Townsend, supra, 221 N.J. at 52, we discern no
error in his admission of this evidence.
Vacated and remanded. We do not retain jurisdiction.
19 A-2781-15T3