As a member of the Health Care Department, Heather concentrates her practice on medical malpractice. She has spent the majority of her legal career defending physicians, nurses, health care providers and medical facilities against medical malpractice claims. Heather is involved in all aspects of a case, from the initial meeting through to the trial.
Heather has written several appellate briefs and argued multiple times before the Appellate Division, most notably in Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365 (App. Div. 2013). In this case, the Appellate Division recommended that the jury interrogatories for pre-existing injuries in New Jersey were recommended to be withdrawn and re-written in line with the jury interrogatories used in the Flood matter. In addition, Heather has assisted in obtaining numerous defense verdicts on behalf of her clients.
Heather graduated from the University of Miami in Coral Gables, Florida, with a Bachelor's of Business Degree. She then went on to obtain a Master's Degree in Management with a focus in leadership from Nova Southeastern University, H. Wayne Huizenga School of Business & Entrepreneurship in Fort Lauderdale. Heather then attended Western Michigan University Cooley Law School, where she graduated with Distinction and received her juris doctor in 2008.
Results
No-Cause Jury Verdict Secured in Wrongful Death Trial
We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.
Unanimous Defense Verdict in Medical Malpractice Case
We secured a unanimous defense verdict in a three-week medical malpractice trial involving an allegedly botched total knee replacement. Through the testimony of our client and an expert, we were able to establish that all accepted standards of care were met. The jury deliberated for three days before returning its unanimous verdict.
Thought Leadership
Case Law Alerts
New Jersey Courts Address Plaintiffs’ Demands to Inspect Electronic Medical Records – Appellate Division Sides with Plaintiffs (with Restrictions)
October 1, 2023
Plaintiffs have increasingly demanded to gain access to the Electronic Medical Records (EMR) of health care providers/facilities, citing Rule 4:18-1, and Rule 4:10-2(a), (g), and (f). This has become a contentious issue in pre-trial discovery as defendants argue that giving plaintiffs unfettered access to EMRs is unduly burdensome in time and expense; it opens up the possibility of HIPAA violations insofar as other patients’ health information may be exposed; and the practice opens providers up to a heightened risk of cyber attacks. In Lasiw, the plaintiff requested to inspect the EMR of the defendant Hackensack University Medical Center (HUMC), which refused the request, citing that the EMR system was proprietary, it contained protected personal health information of other patients, and that the current EMR format differed from the one that was in effect during the care and treatment at issue. HUMC further asserted that if the court were to order an inspection of the EMR, the plaintiff would need to obtain cyber and criminal acts insurance of no less than $5 million prior to any EMR inspection. The defendants further argued against an inspection of the EMR, claiming that it should be a last resort and allowed only in cases where a plaintiff has shown that “conventional document productions that do not needlessly consume tons of staff [and] are not jeopardizing the security of the system” are insufficient. The trial court permitted the plaintiff to conduct an on-site inspection of the EMR, and HUMC appealed the decision. On appeal, HUMC argued that the plaintiff should bear the burden of specifying the individual entries of the EMR that were being sought and the defendant would produce the requested metadata subject to potential assertions of privilege. The Appellate Division was unpersuaded by HUMC’s arguments and found that HUMC failed to demonstrate that an EMR inspection would put the overall EMR system at risk of a cyber attack. Further, the plaintiff was not requesting direct access to HUMC’s EMR system as a whole but, instead, was requesting to inspect the patient’s EMR on a screen which was controlled by HUMC’s employees, thus eliminating any potential HIPAA violations. Ultimately, the Appellate Division permitted the plaintiff’s expert to review the EMR subject to the following conditions. The review would be: on-site; conducted with HUMC’s personnel in control of the system and the mouse; limited to four hours; conducted with plaintiff’s counsel present and she could request specific metadata be copied and produced in “reasonably usable form”; conducted in the presence of defense counsel who could raise any objections to particular metadata that appears on-screen (but any objections would be preserved and considered by the Court at a later time); conducted but not recorded; and conducted with confidentiality agreements in place pursuant to N.J.R.E. 530(c)(4) and (5) to ease any other concerns. Since the Appellate Division’s decision in Lasiw, defendants have been faced with increasing discovery demands for EMR information and content. Since the Lasiw decision, plaintiffs have been requesting EMR documentation and EMR inspections in virtually every medical malpractice action, citing their unequivocal right to have their experts inspect the patient’s EMR and the associated metadata. This has become a hot-button issue that all defense attorneys representing hospitals, facilities, and medical practices need to be aware of. Case Law Alerts, 4th Quarter, October 2023 is prepared by Marshall Dennehey to provide information on recent 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. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.
Vicarious Liability—Do You Really Need an Affidavit of Merit?
May 6, 2021
If a plaintiff’s fundamental cause of action sounds in professional negligence against a “licensed person,” he or she may not evade the AOM requirement by suing only a public entity, and not the individual “licensed person.” But what about the alleged medical negligence of an unlicensed person?
