Superior Court of New Jersey, Warren County.
In this medical malpractice action, this court struck the testimony of one of plaintiff's medical experts on the grounds that the expert did not understand the meaning of the phrase "reasonable medical certainty." This opinion is intended to supplement the court's earlier oral decision.
On September 11, 1983, Joseph Schrantz was injured in a motorcycle accident. He was admitted to Warren Hospital suffering from three broken ribs. For several days his condition improved but on September 17, 1983 he suffered a reversal and died on September 20, 1983. The cause of death was pulmonary embolism. The defendants are five physicians, each of whom is charged with negligence in the diagnosis and treatment of Joseph Schrantz, and Warren Hospital, which is alleged to have been negligent on the grounds that a lung scan could not be performed at the hospital on weekends during September 1983.
The plaintiff offered Dr. Samuel Baer as a medical expert. In addition to being licensed to practice medicine, Dr. Baer is also board certified in internal medicine. There were no objections to his qualifications and he was permitted to testify. During his direct examination Dr. Baer was questioned in turn about each defendant. He was asked the following question without objection about four of the five defendant doctors: "Doctor, do you have an opinion based upon reasonable medical certainty whether Dr. was negligent?" After Dr. Baer responded affirmatively he was asked to state that opinion and he answered that each of the four was negligent. Plaintiff's
counsel then asked him the following question about the fifth doctor, Dr. Popkave: "Can you state with a reasonable degree of medical certainty whether Dr. Popkave deviated from the accepted medical standards of professional care?" Counsel for Dr. Popkave objected and at sidebar sought to question Dr. Baer outside the presence of the jury as to whether Dr. Baer understood the meaning of the phrase "reasonable medical certainty." Defense counsel argued that "[u]nless he can explain that to the satisfaction of the court . . . his testimony is incompetent, as an expert." This court overruled the objection, and informed counsel that Dr. Baer could be cross-examined as to whether he knows the meaning of the phrase "reasonable medical certainty." This ruling was based on the fact that Dr. Baer had been qualified as a medical expert and the court's understanding that no additional foundation testimony was necessary for him to answer the question. Dr. Baer then answered the question and then stated his opinion that Dr. Popkave was negligent. Plaintiff's counsel made no attempt to demonstrate that Dr. Baer understood the meaning of the phrase "reasonable medical certainty."
The first defense counsel to cross-examine Dr. Baer immediately pursued the subject of whether Dr. Baer understood the meaning of the phrase. The following colloquy took place:
Q. Doctor, define for me reasonable medical probability.
A. Well, we have certain standards in medical care. If medical care doesn't come up to those standards, you say that the care has been inadequate, or whatnot. Deficient, negligent.
Q. Could you please define for me reasonable medical probability?
A. If a certain situation is existing in the care of a patient, you must assume that this is the standard under reasonable medical care. If the medical care is not up to that, ...