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Ehrlich v. Sorokin

Superior Court of New Jersey, Appellate Division

July 25, 2017

NORMA S. EHRLICH, Plaintiff-Appellant,
v.
JEFFREY J. SOROKIN, M.D., Defendant-Respondent.

          Submitted May 25, 2017

         On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2859-13.

          M. Mark Mendel, LTD., attorneys for appellant (John J. Del Casale, on the brief).

          Stahl & DeLaurentis, P.C., attorneys for respondent (Sharon K. Galpern, on the brief).

          Before Judges Hoffman, O'Connor and Mawla.

          OPINION

          HOFFMAN, J.A.D.

         Plaintiff 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.

         I.

         We 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.

         Plaintiff's 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 colonoscope.

         On 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 snare.

         An 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.

         Defendant 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 snare.
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 saline."
September 21, 2009 - hot snare to remove a polyp, followed by the APC to "ablate whatever remaining polyp tissue ...

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