NORMA S. EHRLICH, Plaintiff-Appellant,
JEFFREY J. SOROKIN, M.D., Defendant-Respondent.
Submitted May 25, 2017
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. L-2859-13.
Mark Mendel, LTD., attorneys for appellant (John J. Del
Casale, on the brief).
& DeLaurentis, P.C., attorneys for respondent (Sharon K.
Galpern, on the brief).
Judges Hoffman, O'Connor and Mawla.
Norma S. Ehrlich appeals from a January 28, 2016 Law Division
order dismissing her complaint against defendant Jeffrey J.
Sorokin, M.D., based on a no-cause jury verdict in her
medical negligence action. This suit arose after plaintiff
suffered complications from a colonoscopy and polypectomy
procedure defendant performed in 2011. On appeal, plaintiff
raises three claims of trial error, asserting the judge (1)
admitted irrelevant evidence regarding informed consent, (2)
delivered inadequate jury instructions on the standard of
care, and (3) admitted net opinion testimony. Following our
review of the record and applicable law, we agree the
admission of informed consent evidence constituted harmful
error. R. 2:10-2. We therefore vacate the order of dismissal
and remand for a new trial consistent with this opinion.
begin by summarizing the most pertinent evidence from the
record. In May 2003, plaintiff first came under the care of
defendant, a gastroenterologist, after her family physician
referred her based upon complaints of back pain and rectal
bleeding.Defendant recommended plaintiff undergo a
colonoscopy, which he performed on May 27, 2003.
colonoscopy revealed the presence of a polyp at the tip of
her cecum opposite the ileocecal valve. According to
defendant, because the polyp's size and histologic type
made it a significant risk for malignancy, he recommended
plaintiff undergo surgery to remove a portion of her colon.
Plaintiff declined surgery, so defendant referred her to
another gastroenterologist, Dr. Jerome Waye, one of the few
doctors who - at that time - removed polyps with a
November 14, 2003, Dr. Waye performed this procedure;
however, plaintiff subsequently suffered a hemorrhage. In May
2004, plaintiff returned to the care of defendant, who
informed her she needed a surveillance colonoscopy. Because
plaintiff suffered from recurrent polyps, defendant performed
five colonoscopy and polypectomy procedures between 2004 and
2011. Defendant used several techniques to remove
plaintiff's recurrent polyps. One of these procedures,
the "saline lift" technique, involves injecting
fluid into the colon to lift the polyp from the colon wall.
Once lifted, the polyp is usually removed with a hot or cold
alternative procedure, Argon Plasma Coagulation (APC),
utilizes a thin catheter passed through a channel. Conductive
argon gas then passes through the channel to the location of
the polyp, followed by an electrical charge that vaporizes
the cells of the polyp. Unlike the snare technique, the APC
catheter does not make direct contact with the polyp.
applied the following techniques to remove polyps from
plaintiff's colon on the following dates:
November 16, 2004 - saline lift to remove a polyp with a hot
December 28, 2005 - saline lift to remove a polyp with hot
and cold snares.
March 20, 2007 - hot snare to remove a polyp; at trial,
defendant explained he did not use saline because his
"clinical judgment was that it did not need the
September 21, 2009 - hot snare to remove a polyp, followed by
the APC to "ablate whatever remaining polyp tissue ...