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New Jersey Appellate Division Reminds Us: Not All Evidence is Equal

September 4, 2018

Defense Digest, Vol. 24, No. 3, September 2018

By Nicholas A. Rimassa, Esq.*

Key Points:

  • New Jersey Appellate Devision explores distinctions between medical malpractice cases based upon deviation from applicalbe standard of care and lack of informed consent.
  • Appellate Division recently held that signed consent forms are inadmissible unless the plaintiff is pursuing a claim for lack of informed consent.


In Ehrlich v. Sorokin, 451 N.J. Super. 119 (App. Div. 2017), the New Jersey Appellate Division explored critical distinctions between the two most prevalent causes of action in medical malpractice cases: a deviation from the applicable standard of care and a claim based on lack of informed consent. In doing so, the panel reversed the jury’s verdict in favor of the defendant physician due to the prejudicial admission of deleterious evidence that the plaintiff maintained was unrelated to her causes of action. Ehrlich is of particular interest given the confusion often associated with these two commonly pled causes of actions and the requisite evidence one must present in order to carry the burden of proof for each respective theory of liability.

Ms. Ehrlich treated with the defendant gastroenterologist for a number of years prior to the event giving rise to the lawsuit. Over the course of seven years, the defendant performed five colonoscopy and polypectomy procedures. The defendant used at least two different techniques for the procedures, including one with a saline lift, where fluid helps “lift” the polyp from the colon wall, thus enabling the physician to remove the polyp with a snare. The other technique, known as Argon Plasma Coagulation (APC), allows the physician to use gas and an electrical charge to vaporize the polyp’s cells without making any direct contact once the polyp is lifted with saline. During the final colonoscopy, the defendant utilized the APC technique, and the plaintiff suffered a perforated colon, which required a subsequent hemicolectomy, ileostomy and eventual ileostomy reversal.

The plaintiff alleged the doctor deviated from accepted standards of care by specifically failing to inject the polyp and surrounding colon with saline to create a cushion underneath the polyp. The failure to do so resulted in a burn to part of the colon and the resultant perforation. The plaintiff did not assert a claim for lack of informed consent. As part of the defense, the defendant made reference to the plaintiff’s signature on surgical consent forms, which stated that the procedure could result in injury and hospitalization. The plaintiff’s main argument on appeal was that admission of the informed consent forms misled the jury and were irrelevant in the case, where the sole issue was whether the defendant was negligent in failing to perform a saline lift with the APC.

The court first explained that to carry one’s burden in proving a deviation from the standard of care, a plaintiff must present expert testimony establishing the applicable standard, a deviation therefrom, and that the deviation proximately caused the injury. This differs from claims for lack of informed consent, which are generally unrelated to the standard of care for performing medical treatment. To establish a claim for lack of informed consent, a plaintiff must meet a different test, one which requires proof that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken.

The Ehrlich court noted that the plaintiff was not advancing a claim for lack of informed consent. Instead, the only issue at trial was whether or not the defendant’s use of this particular surgical approach deviated from the standard of care in the gastroenterology community. Whether or not the plaintiff acknowledged the risk of perforation had no bearing upon this determination. In fact, the panel noted that while the two claims fall generally under the “umbrella of medical negligence,” the claims are distinct, separate and require different elements of proof. New Jersey joined at least nine other states with reported decisions clearly drawing this distinction between the two claims.

The Appellate panel concluded that the admission of this evidence had the capacity to mislead the jury and was, therefore, capable of producing an unjust result as it led the jury to reason that giving consent to the procedure implies consent to the resultant injury. The admission of such evidence took away from the jury focusing on the sole issue before them, which was whether or not the defendant’s surgical approach was in accord with the then current standard of care.

The Ehrlich holding did not fundamentally change the landscape of New Jersey’s body of law for medical malpractice actions. However, the Appellate Division sent a message in this published decision by reminding lower courts and litigants alike to be mindful of the critical distinctions between these two prevalent causes of actions. The decision also illustrates the Appellate Division’s willingness to intervene on evidentiary trial matters, particularly if the evidence shown to the jury is capable of misleading or producing an unjust result. Finally, this decision serves as a reminder to the defense that certain documents—such as signed consent forms, which are traditionally viewed as favorable to the defense—will not be admitted into evidence at trial unless the plaintiff is pursuing a claim for lack of informed consent.

*Nicholas is an associate in our Roseland, New Jersey office. He can be reached at 973.618.4153 or



Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


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