Articles: Pain and Suffering
Resistance to expert fact witness role decreasing
The
decision by Judge Sabatino in Trenton, NJ in May 2002 in
the Heinzerling case (359 NJ Super 1 Appelate Division)
has in my experience reduced the objections to the use of
a nurse to explain medical records. In Heinzerling, which
was ultimately settled, a nurse prepared a report to explain
the months of treatment a patient received following a delayed
diagnosis of lung cancer. After the defense filed a brief
to exclude the report of the nurse, Judge Sabatino determined
that it was acceptable to use a nurse to conveniently and
effectively explain medical records. Gerald Stockman was
the attorney in this case.
Although
I was not the nurse in this case, I have been providing
this service since the early 1990s, and have testified in
New Jersey and Pennsylvania in this capacity. Most recently,
in Richemond v. Electrolux Home Products, Inc,
an Essex County jury awarded $5 million to two toddlers
who were burned when a pot of boiling water landed on them.
My role involved explaining the medical records and the
details of burn treatment to the jury. One of the children
was horribly disfigured by the incident with burns on her
scalp, shoulders, and back. Other portions of her body were
used for skin grafting donor sites. This was the 10th in
the top 20 personal injury awards of the year, according
to New Jersey Law Journal, September 19, 2005. The attorney
was Kenneth Cohen of Jacoby and Meyers.
In
a trial held in the electronic courtroom in New Brunwick,
NJ in September, 2005, the judge was fully supportive of
my role in explaining the medical treatment and responses
of William Levine, a man who was hit by a car. Mr. Levine
lived for about 21 days after the injury. My testimony was
augmented by Powerpoint slides created from the exhibits
in my report. The majority of the testimony focused on the
first portion of his admission when he was alert, talking,
and aware of his injuries before he was sedated to reduce
his awareness. Although the jury found that the defendant
was negligent, they did not find that the negligence was
the proximate cause of the patient’s injuries. This
case was tried by Morris Brown and Michael Barrett of Wilentz
Goldman and Spitzer.
In
a workplace accident case, Hector Valentin was a new employee
who was pulled face first into a lathe. The impact crushed
portions of his forehead and face and removed his eye. Hector
suffered brain trauma, emotional scars, and disfigurement.
His tendency to form keloid scars meant that reconstructive
plastic surgery was not effective in erasing the effects
of the trauma. My report included scanned photos of the
patient, and a summary of the voluminous medical records
generated during the course of his acute care admission
and subsequent rehabilitation stay. The case was settled
by Marc Saperstein of Davis, Saperstein, and Salomon for
$4 million.
Use
of a nurse to explain medical records is effective when
records are voluminous and the injuries are significant.
The report may incorporate timelines, medical illustrations
of injuries, lists of major problems, graphics showing medication
that was required, scanned portions of medical records,
and other exhibits. This presentation uncovers the information
in the medical record in a way that helps the layperson
understand what happened to the patient.
See also Patricia Iyer's
chapter,"The Expert Fact Witness," in Patricia
Iyer (Editor) Medical
Legal Aspects of Pain and Suffering,
Tucson: Lawyers and Judges Publishing Company, 2003.
- Gallagher, M. Nurse’s
summary testimony allowed as explanatory evidence at trial,
New Jersey Law Journal, 5/20/02, p. 5
- Federal Rule of Evidence
1006, Federal Rules of Evidence 12/1/01, accessed on www.findlaw.com
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