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James v. City of East Orange

Decided: March 18, 1991.

MARY JAMES, INDIVIDUALLY AND AS ADMINISTRATRIX TO THE ESTATE OF SELWYN JAMES, DECEASED AND AS ADMINISTRATRIX AD PROSEQUENDAM FOR SELWYN JAMES, DECEASED, PLAINTIFF-APPELLANT,
v.
CITY OF EAST ORANGE, EAST ORANGE GENERAL HOSPITAL, DR. NANCY CAHIWAT, DR. L. PRYSTOWSKY, MARY HUSPEN, R.N., AND DR. LARRY PETTIS, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Essex County.

Antell, O'Brien and Keefe. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

[246 NJSuper Page 556] At 1:30 a.m., April 27, 1984, plaintiff's husband, decedent Selwyn James, appeared at East Orange Police Headquarters and reported that he had just killed his wife. In fact, although he had injured plaintiff during a domestic argument, she was alive and was then receiving emergency care at the East Orange General Hospital. The police detained decedent for a number of hours, and after it became apparent he was ill they transported him to the East Orange General Hospital emergency room. This was around 9:40 a.m. He was diagnosed as suffering from alcoholic gastritis and treated accordingly. Actually, decedent had swallowed a large number of aspirin tablets with wine before reporting to East Orange Police Headquarters earlier that morning. He died at approximately 5:45 that afternoon, and the cause of death was determined to be acute salicylate intoxication (aspirin poisoning). Toxicological studies revealed no alcohol in the blood.

This medical malpractice suit arising from decedent's death was begun against the hospital, the defendant doctors Cahiwat, Prystowsky and Pettis, and defendant nurse Huspen. The claim against Dr. Cahiwat was dismissed prior to trial on summary judgment. That determination is not presented for review. The plaintiff also sued the City of East Orange on various claims of misconduct which contributed to decedent's death, and that action has been settled. Based upon the lack of expert testimony establishing defendants' departure from accepted standards of medical care, the trial court dismissed the malpractice suit at the close of plaintiff's case. Plaintiff appeals from that determination.

The reason for the omission in plaintiff's proofs was that the trial court refused to recognize the qualifications of plaintiff's proffered medical witness, Dr. William Ober. Dr. Ober's specialization for many years has been laboratory pathology. The reason the court decided to bar his testimony was its belief that Dr. Ober was not sufficiently familiar with the practice of emergency room medicine. The rejection seems to have been generated by the doctor's refusal on cross-examination to characterize his qualifications by using the word "expert" on the subject of emergency room medicine. Instead, he preferred to say, "I know a good deal about [emergency room standards]." To the question asked on cross-examination as to whether there were "some standards you know about and some you don't," he answered "Yes, that's a reasonable way of putting it." There then followed the following exchange of questions and answers:

Q. Doctor, how are we to know what standards of practice in emergency room care you do know about and those you don't know about?

A. If you let Mr. Hawkins [plaintiff's attorney] proceed with his examination you'll find out.

Q. In other words, we'll trust you to tell us which standards you know and which standards you don't?

A. I've been known very frequently to say I don't know.

N.J.R.Evid. 19 is applicable. It provides:

As a prerequisite for the testimony of a witness there must be evidence that he has personal knowledge of the matter, or experience, training, or education,

if such be required. Such evidence may be provided by the testimony of the witness himself. The judge may reject the testimony of a witness that he perceived a matter if he finds that no trier of fact could reasonably believe that the witness did perceive the matter. In exceptional circumstances, the judge may receive the testimony of the witness conditionally, subject to the ...


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