By its written opinion approved for publication on March 17, 2015, the Superior Court of New Jersey Appellate Division (“Appellate Court”) ordered a new trial for the medical malpractice plaintiff, holding that the trial judge had committed reversible error when the judge prevented the plaintiff from using a portion of the defendant surgeon’s deposition testimony in cross-examining the defendant during trial.
The plaintiff had sued the defendant surgeon on her own behalf and on behalf of her deceased husband, alleging that the defendant’s negligence in treating her husband led to his death.
The defendant surgeon had performed a transverse colon resection to remove the man’s cancerous tumor on February 19, 2009, which included the defendant performing an open anastomosis (sewing the colon back together to close the opening) after removing the tumor. The defendant reported no complications during the surgery.
While recuperating in the hospital following the first surgery, the man suffered complications that required the defendant surgeon to perform a second surgery to repair a dehiscence (a failure of the abdominal wall to close).
During the second surgery, the defendant surgeon investigated to determine if there was an anastomotic leak (a hole or perforation in the intestine that allows intestinal contents to leak into the abdomen). While the defendant testified that he never identified a perforation, he nonetheless elected to remove the anastomosis. Following the second surgery, the man’s condition deteriorated rapidly and he died on February 26, 2009.
The man’s wife subsequently filed a New Jersey medical malpractice lawsuit against the surgeon, alleging that the surgeon negligently performed the first anastomosis, creating a leak, which led to sepsis, and that the defendant then negligently failed to address the sepsis. The plaintiff’s medical malpractice lawsuit alleged that because the defendant encountered evidence of infection during the second surgery, he should have performed an ileostomy, drained the abdomen to remove the purulent fluids, and allowed the man to heal after which the man could have undergone a re-anastomosis.
The defendant surgeon disputed the source of the man’s sepsis that caused his death, as well as the timing of the onset of the sepsis.
During cross-examination of the defendant surgeon at trial, the plaintiff sought to introduce a portion of the defendant’s deposition testimony regarding the cause of the man’s death:
Q: Why did [the man] die?
A: It appears that he got septic, though I’m not sure why he had such a rapid demise.
Q: To what did you attribute the sepsis?
A: I have to assume that it was related to the anastomotic leak.
The defense objected and argued that the language used by the defendant (“I would have to assume”) was speculative. The plaintiff argued that it was an admission by a party-opponent and thus admissible under N.J.R.E. 803(b)(1), regardless of any claimed speculative nature.
The trial judge ruled that the testimony was speculative and therefore refused to allow the plaintiff to use the deposition testimony to cross-examine the defendant, who later disputed that he saw evidence of an anastomotic leak during the second surgery, despite his operative report listing “[p]robable anastomotic leak” among his post-operative diagnoses.
The jury subsequently returned a defense verdict, finding that the defendant surgeon had not deviated from accepted standards of care and therefore was not negligent. The plaintiff appealed.
The Appellate Court stated that the questioning of the defendant during his deposition reasonably sought to ascertain his opinion regarding the timing and cause of the man’s sepsis, which were two critical issues in the case: as the surgeon who performed both operations, the defendant was arguably in the best position to make those determinations. From the defendant’s operative report, it would appear that he did, in fact, make those determinations by diagnosing a “[p]robable anastomotic leak[,]” and his statement that he “did not want to take the chance the anastomosis was leaking and would cause further sepsis.”
With regard to the issue of whether the defendant’s deposition testimony was speculative, the Appellate Court noted that N.J.R.E. 803(b)(1) provides that a “statement offered against a party which is . . . the party’s own statement, made either in an individual or in a representative capacity” is not excluded by the hearsay rule.
The Appellate Court held that while it may be possible that the testimony was speculative, the record lacked any evidence or convincing argument explaining how or why the testimony constituted speculation, and the Appellate Court concluded that the defendant’s deposition testimony regarding the cause of the man’s sepsis is admissible under N.J.R.E. 803(b)(1): the statements were made by the defendant, a party to the action, and were offered by the plaintiff against him at trial. The plaintiff’s question was not improper, and whether the defendant was speculating when he answered is irrelevant to the statement’s admissibility.
The Appellate Court held that the fact that the defendant testified at deposition consistent with his operative records but then testified differently at trial, attempting to discredit his own operative reports, clearly went to the issue of his credibility. Accordingly, the trial court erred when it did not allow plaintiff’s counsel to impeach the defendant’s credibility with his prior inconsistent deposition testimony: the existence of the anastomotic leak and its effect were the central issues at trial. While the statement is prejudicial, the undue prejudice to the defendant is minimal because the statement at issue is his, rather than a third party’s statement.
Lastly, the Appellate Court noted that the proofs in this case did not overwhelmingly favor one party or the other; hence, the improper exclusion of the defendant’s contradictory deposition testimony could have been the deciding factor in his favor (the risk that the jury was improperly influenced by the trial court’s exclusion of the defendant’s deposition testimony is particularly in this case because the defendant’s credibility was central to the outcome of the case).
The excluded deposition testimony bore directly on the issue of the defendant’s negligence and thus could readily have been outcome-determinative. Because the exclusion of this evidence could have affected the jury’s determination of whether the defendant was negligent, the Appellate Court held that a new trial is required.
Source Parker v. Poole, M.D., et al., Docket No. A-1874-12T4.
If you or a family member may have suffered injury (or worse) as a result of medical negligence in New Jersey, you should promptly consult with a New Jersey medical malpractice attorney who may investigate your medical malpractice claim for you and represent you in a New Jersey medical malpractice case, if appropriate.
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