The Star-Ledger

N.J. Appellate Panel: Judge Can't Limit Expert Witnesses In Medical Malpractice Suit

The Star-Ledger — Thursday, March 28, 2013

By Brent Johnson / The Star-Ledger

TRENTON — A state appellate court ruled today that a trial judge erred when he limited the number of expert witnesses allowed in a Hudson County medical malpractice suit and should not have banned "crucial evidence" because it duplicated other testimony.

The ruling stems from the case of Kevin McLean, of Jersey City, who died at age 18 two years after being stabbed during an assault.

Weeks after the September 2005 stabbing, McLean, who was 16 at the time, developed a staph infection, suffering brain damage and eventually leaving him paralyzed from the neck down.

McLean died in October 2007 of complications from his quadriplegia, and his mother, Lisa McLean, sued Greenville Hospital in Jersey City, claiming doctors should have discovered the infection sooner.

"It was too late," Dennis Drazin, McLean's attorney, said. "We think this young man would be alive if they had done the right thing."

But attorneys for the hospital argued that the patient's symptoms gave doctors no reason to suspect an infection, and the judge ruled that each side was allowed only one expert witness on any relevant subject.

Ultimately, a jury rejected the mother's contention.

But Drazin said a second expert on emergency medical procedure would have testified that doctors should have administered a blood test, bolstering his case and potentially persuading the jury to vote in favor of McLean.

Today, the three-judge appeals court panel ruled in favor of a new trial. Superior Court Judge Victor Ashrafi, writing for the court, said no laws or rules give a trial court "authority to balance the number of witnesses."

"The testimony that plaintiff wished to present went to the heart of her case: whether defendant deviated from accepted standards of care for an emergency department physician," Ashrafi wrote. "Although a second expert would have taken more time at the trial, it might have been time well-spent."

Dena Mottola Jaborska, a consumer advocate with New Jersey Citizen Action, praised the ruling.

"I think this decision is very important and precedent-setting," Jaborska said. "I imagine it would be true that multiple expert witnesses would be needed to get to the bottom of a bad medical outcome. Limiting expert witnesses to one sounds very anti-victim, and I imagine it would infringe on a consumer's right to fully make their case and seek justice."

Scott Leonard, president of the New Jersey Association for Justice, another advocacy group, also said the court made the right decision.

However, Leonard noted that the ruling was narrow and did not necessarily apply to all medical malpractice cases.

"The courts going forward still have the opportunity to examine this issue," he said. "It cautions judges to do a careful review."

Drazin said he was looking forward to a new trial, at which time a second expert would be permitted to testify.

"We feel confident justice will prevail," he said. "I think this makes the case substantially different."

James B. Sharp, an attorney for Greenville Hospital, did not return a calling seeking comment.

Star-Ledger staff writer Salvador Rizzo contributed to this report.

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