June 13, 2019

In its opinion dated May 15, 2019, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) reversed the defense verdict in a New Jersey medical malpractice case for various errors committed by the trial judge.

The New Jersey medical malpractice plaintiff alleged that he suffered serious nerve damage as a result of the defendant podiatrist using too high tourniquet pressure around his thigh during Achilles repair surgery.

The New Jersey Appellate Court stated that the trial judge committed error by not permitting the plaintiff’s expert to rely upon and testify to his reliance on the operative report from a subsequent treating surgeon in which that surgeon stated that he was able to achieve hemostatis (the blocking on blood flow) by using much lower tourniquet pressure in the second surgery than used by the defendant podiatrist during the original surgery. The plaintiff’s expert reviewed and relied on the subsequent treating surgeon’s operative report when giving his own expert opinions about whether tourniquet pressures other than that used by the defendant podiatrist have been effective.

The New Jersey Appellate Court stated “reference in the operative report to the tourniquet pressure falls under a recognized hearsay exception, and a separate evidence rule pertaining to facts or data that a testifying expert has reasonably relied on in rendering expert opinions.” The New Jersey Appellate Court stated “a testifying expert may refer to ‘facts or data’ provided by another source, even though expressed through a hearsay statement … The testifying expert may rely on a non-testifying expert’s examination so long as the information is of a type reasonably relied on by experts in the field … The operative report – and its reference to the amount of tourniquet pressure [the subsequent treating surgeon] used on plaintiff – is of a type that experts in the field rely, as [the plaintiff’s expert] explained.”

The New Jersey Appellate Court further held that the trial judge committed error by allowing the plaintiff’s treating physician, who was called as a factual witness and not as an expert witness (and who was friends with the defendants), to testify that the amount of tourniquet pressure used by the defendant podiatrist was an appropriate pressure setting for a mid-thigh tourniquet. The New Jersey Appellate Court stated “Asking [the plaintiff’s treating physician] whether 350 mm/Hg is an accepted tourniquet pressure went beyond any information he used in diagnosing and treating plaintiff. Likewise, asking him if his diagnosis would have changed if he knew the pressure used was 350 mm/Hg relied on facts not provided to him by plaintiff and not considered by him in reaching his diagnosis. Most egregiously, [the treating physician’s] testimony that he had done over 10,000 surgical procedures and frequently used pressures of 350 mm/Hg without seeing the type of injury suffered by plaintiff, relied on his experience as a medical expert and directly related to defendants’ alleged malpractice. Moreover, his speculation that plaintiff may have some underlying problem, such as a low grade chronic compartment syndrome, that may have predisposed him to myolysis was an expert opinion based on nothing other than defense counsel’s representation of the tourniquet setting during plaintiff’s surgery.”

The New Jersey Appellate Court therefore reversed and remanded for a new trial.

Source Colleton v. Biebel, Docket No. A-5469-16T1.

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