NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. (L-2850-13, CAMDEN COUNTY AND STATEWIDE)
165 A.3d 812
| N.J. Super. Ct. App. Div. | 2017Background
- Norma Ehrlich underwent multiple colonoscopies and polypectomies by Dr. Jeffrey Sorokin from 2003–2011; techniques used included hot/cold snares, saline lift, and Argon Plasma Coagulation (APC).
- On August 29, 2011 Sorokin used APC; Ehrlich developed abdominal pain early the next morning, was emergently treated, and sustained a colon perforation requiring hemicolectomy and ileostomy.
- Ehrlich sued for medical negligence alleging Sorokin breached the standard of care by failing to perform a saline-lift before APC in 2011; she did not plead lack of informed consent.
- At trial the court admitted Ehrlich’s informed-consent forms and related testimony despite an in limine motion to exclude them; the jury was allowed to take the consent forms into deliberations.
- Defendant’s expert testified saline-lift likely would not have worked due to presumed scar/fibrosis (admitted over objection to net-opinion challenge); defense emphasized that consent forms warned of risks and no guidelines required saline with APC.
- Jury returned a verdict for defendant; the trial judge denied a new-trial motion. On appeal the Appellate Division vacated and remanded, holding admission of informed-consent evidence was reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of informed-consent evidence when only negligent-treatment claim is pleaded | Ehrlich: consent forms and testimony were irrelevant and prejudicial because she did not assert an informed-consent claim | Sorokin: consent evidence is relevant to rebut plaintiff's testimony and to show what patient was told about risks; trial court also said it related to standard-of-care proof | Reversed — consent evidence was irrelevant to the negligent-treatment issue, likely to mislead jury, and should have been excluded (reversible error) |
| Jury instruction on standard of care (plaintiff's proposed enhancement) | Ehrlich: jury should be allowed to reject industry/customary practice if reasonable care would require a higher standard (per Elkerson) | Sorokin: model charge adequately covered standard-of-care dispute about saline-lift with APC | Affirmed — trial court properly declined plaintiff’s added language; Elkerson inapplicable because plaintiff did not show industry-wide standard was unreasonable |
| Admissibility of defense expert testimony asserting scarring/fibrosis (net-opinion challenge) | Ehrlich: Dr. Hoops’ opinion was speculative because records lacked notation of scar/fibrosis | Sorokin: expert based opinion on experience and medical literature; gave factual bases and methodology | Affirmed — trial court did not abuse discretion admitting the testimony; expert provided factual basis and reasoning, not mere ipse dixit |
| Whether admission of consent evidence was harmless error | Ehrlich: evidence likely swayed jury and was prejudicial; reversal required | Sorokin: plaintiff opened the door by addressing consent during her direct examination; evidence relevant to impeachment | Reversed — error was not harmless given the potential to shift focus from standard-of-care inquiry; remand for new trial |
Key Cases Cited
- Parker v. Poole, 440 N.J. Super. 7 (App. Div.) (standard for appellate review of evidentiary rulings)
- Hisenaj v. Kuehner, 194 N.J. 6 (2008) (deference to trial court evidentiary rulings)
- Brady v. Urbas, 111 A.3d 1155 (Pa. 2015) (informed-consent evidence inadmissible in malpractice trial limited to negligent treatment; risk of jury confusion)
- Baird v. Owczarek, 93 A.3d 1222 (Del. 2014) (consent forms irrelevant and prejudicial absent informed-consent claim)
- Gonzalez v. Silver, 407 N.J. Super. 576 (App. Div.) (exclude evidence with high potential for prejudice when irrelevant to standard-of-care issue)
- Newmark-Shortino v. Buna, 427 N.J. Super. 285 (App. Div.) (elements of malpractice claim based on deviation from standard of care)
- Matthies v. Mastromonaco, 160 N.J. 26 (1999) (distinguishing duties: treatment standard of care vs. duty to disclose)
- Elkerson v. North Jersey Blood Ctr., 342 N.J. Super. 219 (App. Div.) (jury may reject industry custom where an improved safer practice was known)
- Townsend v. Pierre, 221 N.J. 36 (2015) (net-opinion rule: experts must explain factual bases and methodology)
- Creanga v. Jardal, 185 N.J. 345 (2005) (net opinion is a bare conclusion unsupported by facts)