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Fred J. Winter, As Executor For the Estate of Pamela Winter, and v. Sherene Henderson

February 22, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9830-07.

Per curiam.


Argued September 12, 2011

Before Judges Parrillo, Grall and Alvarez.

Plaintiff Fred J. Winter, individually and as the executor of the estate of his late wife Pamela Winter, filed suit for damages against defendants Sherene Henderson, R.N., Solaris Health System, Inc., and the Community Hospital Group, Inc. trading as JFK Medical Center. Plaintiff alleged that defendants' negligence in treating decedent resulted in her death. At the conclusion of the trial, the jury rendered a verdict of no cause of action in favor of defendants. Plaintiff appeals, asserting that the trial court erred: (1) in permitting defendants' expert to testify to an opinion not previously expressed; (2) by prohibiting cross-examination on that "surprise" opinion; and (3) by barring plaintiff's proposed testimony regarding certain statements allegedly made to him by employees of defendant hospital. Plaintiff also contends that the prejudicial cumulative effect of these errors warrants a new trial. We reverse and remand.

The events giving rise to plaintiff's claims can be briefly described. Decedent was admitted to JFK Medical Center on October 30, 2005, while suffering from clostridium difficile colitis, which she contracted while caring for her mother, who eventually succumbed to the disease. After admission, decedent developed hospital-acquired pneumonia, an infection in her bloodstream that may have been the product of a perforated intestine, and anemia. Her condition became so severe that she was placed on a ventilator while being treated with antibiotics and other medications.

At approximately 4:30 a.m. on November 21, 2005, after about three weeks of hospitalization, the high pressure alarm on decedent's ventilator sounded, indicating a blockage in the endotracheal tube which pumped air into her lungs. It was Henderson's job to respond. During the episode, decedent became cyanotic, her face turned ashen and blue, and she suffered a precipitous drop in her oxygenation levels. Reduced to its essential elements, plaintiff's theory of the case, based on the incident and his reading of Henderson's notes about it, was that Henderson breached her duty of care by delaying for a minimum of five minutes in clearing decedent's airways.

Plaintiff's experts opined that as a result of the five-minute loss of proper oxygenation decedent suffered significant brain damage, slipping into an irreversible coma. The condition eventually resulted in her death just over a month later, on December 23, 2005.

Plaintiff presented an expert in the field of nursing who testified in person at the trial. The medical expert's testimony, however, was presented via de bene esse deposition. The medical expert was a Florida-based internist, pulmonologist, and hospitalist, as well as a professor of internal medicine, hospitalist medicine, and pulmonary medicine. Plaintiff's experts agreed that the extent of decedent's brain damage was proof that the delay in restoring her respiration lasted several minutes (more than five, according to the medical expert), thereby establishing her caregivers' breach of their duty of care.

Dr. John J. Stern, a professor of medicine and internist specializing in infectious diseases, was proffered as one of defendants' experts. In neither his report nor deposition did he directly comment on plaintiff's premise that defendants negligently failed to maintain appropriate oxygenation levels for decedent for a minimum of five minutes. Instead, Stern attributed the death to decedent's multiple potentially life-threatening ailments, including clostridium difficile colitis, pneumonia, a possibly perforated bowel, "gram-negative rod, and gram-positive sepsis."

Before trial, counsel stipulated that Stern would testify solely as to causation and not liability. During trial, plaintiff's counsel noted on the record that the testimony was intended to be presented in the context of Scafidi v. Seiler, 119 N.J. 93 (1990), in other words, for the jury to parse out whether, within a reasonable degree of medical probability, the incident increased decedent's pre-existing risk of death and if so, to what extent, and whether the increased risk was a substantial factor in causing her eventual death. See id. at 108.

During trial, on direct examination, defendants' counsel first asked Stern:

[Defendant's Counsel]: Doctor, in this case plaintiffs allege that Nurse Henderson did not respond rapidly enough to a ventilator high pressure alarm, that she spent 'many minutes', according to Nurse Pierce, and 'more than five minutes', that's a quote from Dr. Goldstein, plaintiff's expert, 'Waiting until the patient was cyanotic with oxygenation stats in the 60's before calling for assistance, removing the patient from the ventilator and bagging the patient.'

I would like you to focus only on the second part . . . of the patient's allegation of malpractice that for this patient it would take [over five minutes] to further sustain the type of brain damage she did.

Plaintiff's counsel's objection was overruled. Defendants' attorney reiterated the question ...

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