Parents win appeal against Hackensack University Medical Center in wrongful death suit

By Charmaine Little | Oct 4, 2018

TRENTON, N.J. (Legal Newsline) – Judge Francis J. Vernoia of the Superior Court of New Jersey's Appellate Division reversed a lower court’s decision Sept. 24 to dismiss a medical malpractice lawsuit against Hackensack University Medical Center following a 4-year-old’s death.

The court determined that the Superior Court of New Jersey, Law Division erred when it denied an expert's testimony for the plaintiffs on the decision that the expert was not qualified.

Sandra Nichols and Cory Leo sued the hospital after Santino Michael Leo was admitted to the hospital in April 2011. He passed away the following month after he was diagnosed with methicillin-resistant staphylococcus aureus and pneumonia. He also developed acute respiratory distress, sepsis and organ failure. 

Nichols and Leo sued the hospital the child’s nurses and doctors over allegations wrongful death. HUMC was granted summary judgment and one of the plaintiffs’ expert reports was barred, the ruling states.

In their appeal, the plaintiffs challenged two orders from the lower court that blocked licensed Indiana physician Dr. Howard Eigen from testifying in relation to the standard of care and proximate cause in relation to HUMC. They also appealed an order that granted HUMC summary judgment and denied their cross-motion that would allow the late filing of a new expert report as well as an order that denied their motion for reconsideration.

The appeals court first looked at whether the lower court was correct when it decided Eigen couldn’t testify as an expert via the Patients First Act.

“We are convinced the court erred by determining Dr. Eigen was not qualified to testify against the defendant physicians,” the Superior Court determined. 

The court pointed out Eigen was a licensed physician during the time of the alleged malpractice. He also met the requirements as he specialized in pediatrics and pediatric critical care, which is the same specialty and subspecialty as the defendants. 

While the lower court said Eigen wasn’t qualified since he didn’t spend much of his time in the medical field in the area of pediatrics and pediatric critical care, the Superior Court disagreed. During the time of the malpractice, Eigen worked for Riley Hospital for Children and provided both pediatric and pediatric critical care. Thus, the lower court should not have blocked his testimony.

As for the lower court’s decision in granting HUMC summary judgment, the Superior Court said it was based on the finding that Eigen wasn’t a qualified expert. Since the court determined he is, it reversed the summary judgment. It also pointed out since Eigen is now retired, the court will need to let the plaintiffs bring substitute Dr. Emily Dawson’s report as the new expert report.

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