Verdicts

Plaintiff, a 38-year-old woman, complained of pelvic pain. An ultrasound revealed fibroids in her uterus. When a hysterectomy was discussed, she expressed a desire for ovarian preservation, she claimed in her suit. She also claimed that when a consent form given to her mentioned possible ovary removal in connection with the hysterectomy, she again raised the issue with surgeon Steven Coyle, who said there was no way he would remove her ovaries. Nevertheless, he removed both her ovaries during the operation.

Coyle claimed he acted within the standard of care, citing both the signed consent and an unanticipated problem with both ovaries that necessitated their removal.

NEW JERSEY

Testimony Allowed Where Non-Expert Witness Merely Reviewed Records

The testimony of a nurse who had examined the deceased's medical records was allowed to be presented in court even though she had no first-hand knowledge of the case and was not qualified as an expert. Heinzerling v. Goldfarb, MER-L-1884-99; New Jersey Superior Court, Law Division, Mercer County (Sabatino, J.S.C.) decided 5/9/02; approved for publication 3/14/03. DDS No. 29-3-3216.

Sieglinde Heinzerling was diagnosed with lung cancer on May 13, 1997. She died on March 10, 1998. Her estate contended that defendant medical providers deviated from the applicable standards of care by failing, among other things, to diagnose her condition sooner.

Plaintiff sought to call Audrey Berry, MSN, RN, as a witness at trial. She was not personally involved in decedent's care, nor had she been retained as an expert witness on deviation. Instead, plaintiff intended to have her extract information from decedent's copious medical records and explain to the jury, in more understandable terms, decedent's symptoms and the treatments and medications administered to her.

Defendants objected to Berry's proposed testimony, arguing that she could not serve as a fact witness under New Jersey Evidence Rule 602 because she had no personal knowledge of decedent's care and treatment. Lacking such personal knowledge, she allegedly could not offer lay opinion under New Jersey Evidence Rule 701. Defendants also argued that Berry could not function as an expert because she is not a physician.

Berry has substantial nursing, teaching and research credentials. She reviewed records compiled from 16 physicians who were involved in plaintiff's care and treatment. From them she extracted a subset of the records amounting to 53 pages. They included entries on at least 66 dates, chronicling the intensive cancer treatment that decedent received. The court here noted that if the records were admitted at trial without explanatory testimony, they would be apt to cause serious confusion in the jury room. Citing the case of U.S. v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998), the New Jersey court found that the proposed testimony was a “secondary evidence summary” of the type that is not offered in lieu of other evidence, but in addition to it. This type of evidence is admissible under Federal Evidence Rule 1006, and New Jersey's Evidence Rule 1006 almost entirely tracks the language of the federal rule; the only difference being that the state rule adds the requirement that the summary be presented by a “qualified witness”

Prior to this case, there was no precedent in New Jersey concerning the use of testimonial ' as opposed to documentary ' summaries at trial. But the parallel language of Evidence Rule 1006, the court held, should be construed to permit such summaries in testimonial form. That plaintiff's counsel might instead call to the witness stand each of the physicians involved in decedent's medical care did not require the exclusion of Berry's summary of the evidence. Any objections to the oral form of Berry's testimonial summary were therefore overruled.

NEW YORK

Verdict Sheet Obviated Need For New Trial

A New York appellate court held that even if the jury at the trial court level was given a verdict sheet with two possible theories of liability and one of those theories was not supported by the evidence, there was no error because the interrogatories as to each separate theory were adequate. Kindelan v. The Society of the New York Hospital, N.Y.L.J. 4/28/03 (Sup. Ct., IA Part 1) (Renwick, J.).

Plaintiff brought suit for malpractice involving the delayed diagnosis and treatment of a compression fracture of her spine. The jury found defendant hospital liable and awarded plaintiff $2.5 million in damages for her past and future pain and suffering.

Defendant moved to set aside the verdict on liability as well as the damages award, contending that the court had committed error when it submitted a verdict sheet with two possible theories of liability against defendant, one of which was allegedly not supported by the evidence. Citing Bergen v. ILGWU Houses Inc., 38 A.D.2d 933 [1st Dept. 1972], the court held that it had obviated the need for a new trial by adopting a very specific verdict sheet with an interrogatory as to each independent theory of malpractice. The court ruled, however, that the award deviated from reasonable compensation. After review of precedential cases involving back injuries and taking into account plaintiff's injuries and the extent of her disability, the court determined that $600,000 was appropriate.

Partner in Same-Sex Union Can Sue For Wrongful Death

A New York court has held that a plaintiff who was married in a Vermont civil ceremony to his same-sex partner has standing to sue for the wrongful death of his spouse due to medical malpractice. Langan v. St. Vincent's Hospital of N.Y., N.Y.L.J. 4/18/03 (Dunne, J.).

The limited issue presented on the motion and cross-motion was whether, under principles of full faith and credit or comity, plaintiff John Langan's legal status as a spouse of Neal Spicehandler in a civil union solemnized in the State of Vermont ' which union is sanctioned and affords all benefits and obligations of marriage under the laws of Vermont ' entitled him to recognition as a “spouse” under New York's wrongful death statute. Defendant had moved for dismissal, claiming that plaintiff, as a person unrelated to the deceased, had no standing to sue for his wrongful death or for medical malpractice.

The court noted that under New York law as it now stands, if plaintiff were a registered domestic partner, he would be able to succeed to a rent-controlled apartment as a “family member,” would be able to recover had his partner been lost in the events of 9/11, would be eligible for the derivative employment benefits of a city or state employed partner — including death benefits ' would be eligible to adopt his partner's biological child and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. He would not, however, be able to recover as a spouse under the wrongful death statute, based on the holding of Raum v. Restaurant Assoc., 252 AD2d 369, app dsmd 92 NY2d 946. However, at the time Raum was decided, there was no state-sanctioned union equivalent to marriage anywhere in the United States. The court here found that “[p]assage of the Vermont civil union statute provides a basis to distinguish Raum.”

With respect to marriages entered into in sister states, New York adheres to the general rule that “marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes” (Shea v. Shea, 294 NY 909). And, unlike 35 other states, New York has not enacted a version of the Federal Defense of Marriage Act (1 U.S.C. ” 7; 28 U.S.C. ” 1738C), which in response to Vermont's civil union statute, declared that a marriage is a union between a man and a woman, and that no state shall be “required to give effect” to a same-sex union.

Therefore, the court here held that under principles of full faith and credit and comity, and following authority that advances the concept that citizens ought to be able to move from one state to another without concern for the validity or recognition of their marital status, “New York will recognize a marriage sanctioned and contracted in a sister state and there appears to be no valid legal basis to distinguish one between a same-sex couple.”

The court went on to find that plaintiff, as a surviving spouse under the laws of Vermont, is included within the meaning of “spouse” as it is used under the New York wrongful death recovery statute, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.

CALIFORNIA

No Liability for Removal of Ovaries Without Consent

A surgeon who removed both of a woman's ovaries without her specific consent was found not liable for medical malpractice. Lounsbury v. Coyle, No. CIV209137 (Ventura Co., Calif., Super. Ct.).

Plaintiff, a 38-year-old woman, complained of pelvic pain. An ultrasound revealed fibroids in her uterus. When a hysterectomy was discussed, she expressed a desire for ovarian preservation, she claimed in her suit. She also claimed that when a consent form given to her mentioned possible ovary removal in connection with the hysterectomy, she again raised the issue with surgeon Steven Coyle, who said there was no way he would remove her ovaries. Nevertheless, he removed both her ovaries during the operation.

Coyle claimed he acted within the standard of care, citing both the signed consent and an unanticipated problem with both ovaries that necessitated their removal.

NEW JERSEY

Testimony Allowed Where Non-Expert Witness Merely Reviewed Records

The testimony of a nurse who had examined the deceased's medical records was allowed to be presented in court even though she had no first-hand knowledge of the case and was not qualified as an expert. Heinzerling v. Goldfarb, MER-L-1884-99; New Jersey Superior Court, Law Division, Mercer County (Sabatino, J.S.C.) decided 5/9/02; approved for publication 3/14/03. DDS No. 29-3-3216.

Sieglinde Heinzerling was diagnosed with lung cancer on May 13, 1997. She died on March 10, 1998. Her estate contended that defendant medical providers deviated from the applicable standards of care by failing, among other things, to diagnose her condition sooner.

Plaintiff sought to call Audrey Berry, MSN, RN, as a witness at trial. She was not personally involved in decedent's care, nor had she been retained as an expert witness on deviation. Instead, plaintiff intended to have her extract information from decedent's copious medical records and explain to the jury, in more understandable terms, decedent's symptoms and the treatments and medications administered to her.

Defendants objected to Berry's proposed testimony, arguing that she could not serve as a fact witness under New Jersey Evidence Rule 602 because she had no personal knowledge of decedent's care and treatment. Lacking such personal knowledge, she allegedly could not offer lay opinion under New Jersey Evidence Rule 701. Defendants also argued that Berry could not function as an expert because she is not a physician.

Berry has substantial nursing, teaching and research credentials. She reviewed records compiled from 16 physicians who were involved in plaintiff's care and treatment. From them she extracted a subset of the records amounting to 53 pages. They included entries on at least 66 dates, chronicling the intensive cancer treatment that decedent received. The court here noted that if the records were admitted at trial without explanatory testimony, they would be apt to cause serious confusion in the jury room. Citing the case of U.S. v. Bray , 139 F.3d 1104, 1112 (6th Cir. 1998), the New Jersey court found that the proposed testimony was a “secondary evidence summary” of the type that is not offered in lieu of other evidence, but in addition to it. This type of evidence is admissible under Federal Evidence Rule 1006, and New Jersey's Evidence Rule 1006 almost entirely tracks the language of the federal rule; the only difference being that the state rule adds the requirement that the summary be presented by a “qualified witness”

Prior to this case, there was no precedent in New Jersey concerning the use of testimonial ' as opposed to documentary ' summaries at trial. But the parallel language of Evidence Rule 1006, the court held, should be construed to permit such summaries in testimonial form. That plaintiff's counsel might instead call to the witness stand each of the physicians involved in decedent's medical care did not require the exclusion of Berry's summary of the evidence. Any objections to the oral form of Berry's testimonial summary were therefore overruled.

NEW YORK

Verdict Sheet Obviated Need For New Trial

A New York appellate court held that even if the jury at the trial court level was given a verdict sheet with two possible theories of liability and one of those theories was not supported by the evidence, there was no error because the interrogatories as to each separate theory were adequate. Kindelan v. The Society of the New York Hospital, N.Y.L.J. 4/28/03 (Sup. Ct., IA Part 1) (Renwick, J.).

Plaintiff brought suit for malpractice involving the delayed diagnosis and treatment of a compression fracture of her spine. The jury found defendant hospital liable and awarded plaintiff $2.5 million in damages for her past and future pain and suffering.

Defendant moved to set aside the verdict on liability as well as the damages award, contending that the court had committed error when it submitted a verdict sheet with two possible theories of liability against defendant, one of which was allegedly not supported by the evidence. Citing Bergen v. ILGWU Houses Inc. , 38 A.D.2d 933 [1st Dept. 1972], the court held that it had obviated the need for a new trial by adopting a very specific verdict sheet with an interrogatory as to each independent theory of malpractice. The court ruled, however, that the award deviated from reasonable compensation. After review of precedential cases involving back injuries and taking into account plaintiff's injuries and the extent of her disability, the court determined that $600,000 was appropriate.

Partner in Same-Sex Union Can Sue For Wrongful Death

A New York court has held that a plaintiff who was married in a Vermont civil ceremony to his same-sex partner has standing to sue for the wrongful death of his spouse due to medical malpractice. Langan v. St. Vincent's Hospital of N.Y., N.Y.L.J. 4/18/03 (Dunne, J.).

The limited issue presented on the motion and cross-motion was whether, under principles of full faith and credit or comity, plaintiff John Langan's legal status as a spouse of Neal Spicehandler in a civil union solemnized in the State of Vermont ' which union is sanctioned and affords all benefits and obligations of marriage under the laws of Vermont ' entitled him to recognition as a “spouse” under New York's wrongful death statute. Defendant had moved for dismissal, claiming that plaintiff, as a person unrelated to the deceased, had no standing to sue for his wrongful death or for medical malpractice.

The court noted that under New York law as it now stands, if plaintiff were a registered domestic partner, he would be able to succeed to a rent-controlled apartment as a “family member,” would be able to recover had his partner been lost in the events of 9/11, would be eligible for the derivative employment benefits of a city or state employed partner — including death benefits ' would be eligible to adopt his partner's biological child and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. He would not, however, be able to recover as a spouse under the wrongful death statute, based on the holding of Raum v. Restaurant Assoc. , 252 AD2d 369, app dsmd 92 NY2d 946. However, at the time Raum was decided, there was no state-sanctioned union equivalent to marriage anywhere in the United States. The court here found that “[p]assage of the Vermont civil union statute provides a basis to distinguish Raum.”

With respect to marriages entered into in sister states, New York adheres to the general rule that “marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes” ( Shea v. Shea , 294 NY 909). And, unlike 35 other states, New York has not enacted a version of the Federal Defense of Marriage Act (1 U.S.C. ” 7; 28 U.S.C. ” 1738C), which in response to Vermont's civil union statute, declared that a marriage is a union between a man and a woman, and that no state shall be “required to give effect” to a same-sex union.

Therefore, the court here held that under principles of full faith and credit and comity, and following authority that advances the concept that citizens ought to be able to move from one state to another without concern for the validity or recognition of their marital status, “New York will recognize a marriage sanctioned and contracted in a sister state and there appears to be no valid legal basis to distinguish one between a same-sex couple.”

The court went on to find that plaintiff, as a surviving spouse under the laws of Vermont, is included within the meaning of “spouse” as it is used under the New York wrongful death recovery statute, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.