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Lisa Mclean, Administratrix Ad Prosequendum of the Estate of Kevin v. Liberty Health System

March 28, 2013

LISA MCLEAN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF KEVIN MCLEAN, AND LISA MCLEAN, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
LIBERTY HEALTH SYSTEM, GREENVILLE HOSPITAL, AND A. KHAN, M.D., DEFENDANTS-RESPONDENTS, AND JERSEY CITY MEDICAL CENTER, MANUEL ARAGONES, M.D. AND SURRIAYA KHANUM, M.D., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3890-08.

The opinion of the court was delivered by: Ashrafi, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

APPELLATE DIVISION

Submitted November 8, 2012

Decided

Before Judges Fuentes, Ashrafi and Hayden.

March 28, 2013

The opinion of the court was delivered by ASHRAFI, J.A.D.

An undetected infection left a sixteen-year-old boy paralyzed and allegedly led to his death. Plaintiff, who is the boy's mother and the administratrix of his estate, filed a medical malpractice lawsuit claiming that an emergency medical doctor who treated her son twice within three days should have discovered the infection. Defendants contended that the patient's symptoms gave the doctor no reason to suspect an infection. The jury's verdict was that plaintiff did not prove medical malpractice.

Plaintiff now appeals, asserting that several errors at the trial tainted the jury's verdict, and also, that the verdict was against the weight of the evidence. We reverse and order a new trial. The trial court should not have prohibited plaintiff from presenting the testimony of a second expert witness on the subject of medical malpractice because his testimony would be duplicative.

I.

Kevin McLean was born in 1988. On September 24, 2005, when Kevin was sixteen-years-old, he and some friends were assaulted in Jersey City, and Kevin was stabbed in the thigh and in the arm. Plaintiff-mother, Lisa McLean, rushed to the scene, and Kevin was taken by ambulance to Jersey City Medical Center. His wounds were treated in the emergency department, and he was discharged with a prescription for an antibiotic. Kevin followed up on the care of his wounds with his primary care physician, pediatrician Reginald Coleman, and the wounds appeared to have healed within a few weeks.

About six weeks after the stabbing, on November 9, 2005, Kevin complained of low back pain, which was radiating into his left leg. Plaintiff took him to the emergency room at Greenville Hospital that afternoon. Kevin and his mother did not draw a connection between the stabbing and the back pain, and they did not volunteer information about the stabbing injuries at the emergency department in Greenville Hospital. About three hours after he arrived at the hospital, Kevin was examined by defendant, Dr. Anwar Khan. The doctor ordered urinalysis and an x-ray of the back, both of which were normal. The doctor diagnosed Kevin with a back sprain and administered pain medication. Kevin's pain improved quickly, and the doctor discharged him from the hospital at about 10:00 that night.

Two days later, on November 11, Kevin's back pain had worsened and was now radiating into both legs. He was walking with a visible limp. Plaintiff took him again to the emergency department at Greenville Hospital, and again Kevin was seen by Dr. Khan. This time, the doctor ordered two CT scans, both without intravenous contrast.*fn1 The scans were unremarkable. The doctor diagnosed Kevin with sacroiliitis, a type of joint inflammation. He discharged Kevin with prescriptions for a pain reliever and a muscle relaxant and instructed him to follow-up with his own doctor.

Kevin's condition did not improve over the next several days. On November 15, he was seen by Dr. Coleman, who observed that Kevin did not "look right" and had him admitted at Jersey City Medical Center. Kevin's condition declined rapidly. After several tests, he was transferred to St. Joseph's Medical Center. There, he went into cardiac arrest and became comatose. Kevin was eventually diagnosed with methicillin-resistant staphylococcus aureus (MRSA), a type of staph infection that resists antibiotics.

Despite the treatment that was administered at St. Joseph's hospital, Kevin's blood tests did not come back negative for infection until November 22. In addition, doctors performed a CT-guided aspiration of Kevin's upper thigh, from which they drained a half liter of pus.

Kevin began to regain consciousness in December, but the damage was already done. The infection and cardiac arrest caused brain damage that paralyzed him from the neck down. He spent the rest of his life in either a hospital bed or a nursing home. Two years after his visits to Greenville Hospital, Kevin died on October 27, 2007, of complications from his quadriplegia.

Plaintiff filed her medical malpractice complaint in August 2008, naming as defendants Greenville Hospital, Dr. Khan, and Liberty Health System, as well as Jersey City Medical Center and other doctors. Defendants other than those associated with Greenville Hospital were dismissed from the case without finding that they had any liability for Kevin's injuries and death. The trial of the malpractice case against the Greenville Hospital defendants*fn2 was conducted from September 19 to October 5, 2011. The trial focused on expert testimony to establish what caused Kevin's infection and eventual death. The witnesses at trial were plaintiff-mother, Kevin's grandmother, defendant-doctor, and a total of six expert witnesses, four called by plaintiff and two by defendant. Each side presented an expert on the standard of care in emergency medicine, as well as an expert in infectious diseases. Plaintiff also presented expert testimony from a radiologist and a forensic economist. As we will discuss, plaintiff ...


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