Colleton v. Biebel, et. al. ( A-5469-16T1), decided May 15, 2019 – Michael Zerres

By Michael Zerres

In this medical malpractice case, the plaintiff experienced severe pain, numbness, and swelling in the right foot following surgery to repair a torn Achilles tendon by the defendant podiatrist. The plaintiff suffered permanent nerve damage alleged to have been caused by compression from excessive mid-thigh pneumatic tourniquet used during the procedure to achieve hemostasis. The plaintiff alleged that the defendant deviated from the accepted standards of podiatric care when the tourniquet pressure was set unnecessarily high (350mm HG)

At trial, the jury found that plaintiffs failed to prove that there was a deviation from the accepted standards of care. On appeal, plaintiffs argued that trial judge abused her discretion by precluding plaintiff’s expert witness from testifying about the amount of tourniquet pressure used in subsequent surgery on the patient performed by a different foot surgeon. (250mm HG) This was a much lower pressure than was used by Dr. Biebel, and, was sufficient to achieve hemostasis. The plaintiff further argued that the judge abused her discretion by allowing Dr. Allegra, a treating orthopedist, to render expert opinion testimony on the applicable standard of care in violation of Stigliano v. Connaught Laboratories Inc., 140 N.J. 305 (1995). Finally, plaintiffs argue the judge mishandled their allegation of juror misconduct, claiming that a juror was found to have a personal connection to plaintiffs.

In reversing the Trial Court’s rulings, the Appellate Court held that: a. reference in a subsequent operative report to the amount of tourniquet pressure falls under a recognized hearsay exception under N.J.R.E. 803(c)(6) as it is neither a diagnosis nor a complex medical condition, and that plaintiff’s medical expert should have been allowed to rely on this information in support of his opinions as it is a type relied on by experts in the field under R.J.R.E. 703. In addition, the Court ruled that plaintiffs’ counsel should be permitted to cross-examine the defense expert witness on the fact that 250mm HG was sufficient to achieve hemostasis.; b. the error in allowing Dr. Allegra to offer expert testimony was not harmless because a treating physician in a different specialty than defendant should not be permitted to give opinions that relate to the standard of care; and,; c. the judge abused her discretion by failing to conduct a post-verdict interrogation of a juror who approached the plaintiff in the parking lot following the trial since that juror revealed a personal connection to plaintiffs which was potentially prejudicial to parties.