Preview
BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 2 Trans ID: LCV20233376894
Susan S. Singer, Esq. (Atty. ID#005661977)
G. Martin Meyers, Esq. (Atty. ID#271881971)
LAW OFFICES OF G. MARTIN MEYERS, P.C.
35 West Main Street, Suite 106
Denville, New Jersey 07834
Telephone: (973) 625-0838
Telefax: (973) 625-5350
Attorney for Plaintiff
:
TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY
as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY
HOFSTATTER, Deceased, :
: DOCKET NO. BER-L-4765-19
Plaintiff, :
: Civil Action
v. :
:
VALLEY HOSPITAL, VALLEY HEALTH :
SYSTEM, VALLEY MEDICAL GROUP, :
VALLEY EMERGENCY ROOM ASSOC- :
IATES, ANDREW SAPIRA, M.D., :
GEORGE BECKER III, M.D., HOWARD : ORAL ARGUMENT REQUESTED
GOLDSCHMIDT, M.D., SHANNON :
ROSS, R.N., AJELDIN HUIT, R.N., : NOTICE OF MOTION TO PERMIT
JESENIA MARTINEZ, R.N., LAURA : ADMISSION OF DE BENE ESSE
PROVENZALE, R.N., JOHN DOE : TRIAL TESTIMONY OF PIERRE
HEALTHCARE PROVIDERS 1-15 and : BORCZUK, M.D., THAT FAILURE TO
ABC CORPORATIONS 1-15, : MONITOR PLAINTIFF’S DECEDENT
: CONSTITUTED A DEVIATION
: FROM THE STANDARD OF CARE
Defendants. :
:
TO: Renee J. Sherman, Esq.
RUPRECHT HART RICCIARDULLI & SHERMAN, LLP
53 Cardinal Drive, Suite 1
Westfield, NJ 07090
T 908-232-4800
F 908-232-4801
rsherman@rhwlawfirm.com
Counsel for Defendants George L. Becker, III, M.D. and Andrew S. Sapira, M.D.
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MADAM:
PLEASE TAKE NOTICE that on Friday, December 1, 2023, at 9:00 a.m. in the forenoon or
as soon thereafter as counsel may be heard, the undersigned, G. Martin Meyers, Esq., attorney for
Plaintiffs herein, will apply to the Superior Court of New Jersey, Bergen County, at the Justice
Center, Hackensack, New Jersey, for an Order determining that the de bene esse testimony of
Plaintiff’s Emergency Medicine expert, Pierre Borzcuk M.D., as regards his opinion that failure to
monitor the heart of Plaintiff’s decedent, Rita Hofstatter, constituted a deviation from the accepted
standard of care, and may be admitted in evidence at trial;
TAKE FURTHER NOTICE THAT in support of the motion Plaintiff will rely upon the
certification of Susan S. Singer, Esq., and the accompanying brief, and certification of service;
in accordance with Rule 1:6-2(d) Plaintiff requests oral argument of the motion;
TAKE FURTHER NOTICE THAT in accordance with Rule 1:6-2(d), we hereby request
oral argument.
In accordance with Rule 1:6-2(d) a proposed form of Order is submitted herewith.
LAW OFFICES OF G. MARTIN MEYERS, P.C.
Attorney for Plaintiff
By:_/s/ Susan S. Singer
SUSAN S. SINGER, ESQ.
Dated: November 15, 2023
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Susan S. Singer, Esq. (Atty. ID#005661977)
G. Martin Meyers, Esq. (Atty. ID#271881971)
LAW OFFICES OF G. MARTIN MEYERS, P.C.
35 West Main Street, Suite 106
Denville, New Jersey 07834
Telephone: (973) 625-0838
Telefax: (973) 625-5350
gmm@gmeyerslaw.com
Counsel for Plaintiffs
:
TINA B. GILIBERTI, Individually and
: SUPERIOR COURT OF NEW JERSEY
as Executrix of the Estate of RITA S.
: LAW DIVISION – BERGEN COUNTY
HOFSTATTER, Deceased, :
: DOCKET NO. BER-L-4765-19
Plaintiff, :
: Civil Action
v. :
:
VALLEY HOSPITAL, VALLEY HEALTH :
SYSTEM, VALLEY MEDICAL GROUP, :
VALLEY EMERGENCY ROOM ASSOC- :
IATES, ANDREW SAPIRA, M.D., :
GEORGE BECKER III, M.D., HOWARD :
GOLDSCHMIDT, M.D., SHANNON :
ROSS, R.N., AJELDIN HUIT, R.N., :
JESENIA MARTINEZ, R.N., LAURA : ORDER
PROVENZALE, R.N., JOHN DOE :
HEALTHCARE PROVIDERS 1-15 and :
ABC CORPORATIONS 1-15, :
:
Defendants. :
:
THIS MATTER, having been opened to the Court upon Motion In Limine of G.
Martin Meyers, Esq., counsel for Plaintiff, and the Court having considered the papers
submitted by counsel for Plaintiff in support thereof, and the Court having heard
argument of counsel, and for good cause shown,
IT IS on this __________day of ____________________2023,
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ORDERED that the de bene esse opinion testimony of Plaintiff’s Emergency
Medicine expert, Pierre Borzcuk M.D., that failure to monitor the heart of Plaintiff’s
decedent, Rita Hofstatter, constituted a deviation from the accepted standard of care, may be
admitted in evidence at trial.
FURTHER ORDERED that copies of this Order be served on all counsel herein
within days of the date hereof.
HON. NICHOLAS OSTUNI, J.S.C.
Opposed
Unopposed
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G. Martin Meyers, Esq. (Atty. ID#271881971)
LAW OFFICES OF G. MARTIN MEYERS, P.C.
35 West Main Street, Suite 106
Denville, New Jersey 07834
Telephone: (973) 625-0838
Telefax: (973) 625-5350
gmm@gmeyerslaw.com
Attorney for Plaintiff
:
: SUPERIOR COURT OF NEW JERSEY
TINA B. GILIBERTI, Individually and
: LAW DIVISION – BERGEN COUNTY
as Executrix of the Estate of RITA S.
HOFSTATTER, Deceased, :
: DOCKET NO. BER-L-4765-19
Plaintiff, :
: Civil Action
v. :
:
VALLEY HOSPITAL, VALLEY HEALTH :
SYSTEM, VALLEY MEDICAL GROUP, :
VALLEY EMERGENCY ROOM ASSOC- :
IATES, ANDREW SAPIRA, M.D., : CERTIFICATION OF
GEORGE BECKER III, M.D., HOWARD : SUSAN S. SINGER, ESQ.
GOLDSCHMIDT, M.D., SHANNON :
ROSS, R.N., AJELDIN HUIT, R.N., :
JESENIA MARTINEZ, R.N., LAURA :
PROVENZALE, R.N., JOHN DOE :
HEALTHCARE PROVIDERS 1-15 and :
ABC CORPORATIONS 1-15, :
:
Defendants. :
:
I, Susan S. Singer, Esq., do hereby certify as follows:
1. I am an attorney at law of the State of New Jersey, of counsel in Law Offices of
G. Martin Meyers, P.C., counsel for Plaintiff in the above matter.
2. Attached hereto at Exhibit “A” is a true copy of the 8/25/21 report of Stanley J.
Schneller, M.D., plaintiff’s expert in cardiology.
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3. Attached hereto at Exhibit “B” is a true copy of the 1/26/21 report of Marc Cohen,
M.D., Defendants’ expert in cardiology.
4. Attached hereto at Exhibit “C” is a true copy of the 11/22/20 report of Pierre
Borczuk, M.D., Plaintiffs’ expert in emergency medicine.
5. Attached hereto at Exhibit “D” is a true copy of Dr. Borczuk’s 2/19/21 rebuttal
report herein.
6. Attached hereto at Exhibit “E” is a true copy of relevant portions of the 10/19/23
de bene esse trial testimony of Pierre Borczuk, M.D., Plaintiffs’ expert in emergency medicine.
7. Attached hereto at Exhibit “F” is a true copy of relevant excerpts of the hospital
records of Decedent Rita Hofstatter herein, Bates stamped by Defendants.
8. Attached hereto at Exhibit “G” is a true copy of relevant pages from the 10/15/20
Deposition of Defendant George L. Becker, M.D.
I hereby certify that the foregoing statements made by me are true. I am aware of the fact
that, if any of the statements made by me is willfully false, I am subject to punishment.
Dated: November 15, 2023 By: /s/ Susan S. Singer
Susan S. Singer, Esq.
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G. Martin Meyers, Esq. (Atty. ID#271881971)
Susan S. Singer, Esq. (Atty. ID# 005661977
LAW OFFICES OF G. MARTIN MEYERS, P.C.
35 West Main Street, Suite 106
Denville, New Jersey 07834
Telephone: (973) 625-0838
Telefax: (973) 625-5350
gmm@gmeyerslaw.com
Counsel for Plaintiffs
:
TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY
as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY
HOFSTATTER, Deceased, :
: DOCKET NO. BER-L-4765-19
Plaintiff, :
: Civil Action
v. :
:
VALLEY HOSPITAL, VALLEY HEALTH :
SYSTEM, VALLEY MEDICAL GROUP, :
VALLEY EMERGENCY ROOM ASSOC- :
IATES, ANDREW SAPIRA, M.D., :
GEORGE BECKER III, M.D., HOWARD :
GOLDSCHMIDT, M.D., SHANNON :
ROSS, R.N., AJELDIN HUIT, R.N., :
JESENIA MARTINEZ, R.N., LAURA :
PROVENZALE, R.N., JOHN DOE :
HEALTHCARE PROVIDERS 1-15 and :
ABC CORPORATIONS 1-15, :
:
Defendants. :
:
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION
TO DETERMINE ADMISSIBILITY OF TRIAL TESTIMONY
OF PLAINTIFF’S EMERGENCY ROOM EXPERT THAT FAILURE
TO HEART MONITOR PLAINTIFF’S DECEDENT CONSTITUTED
A DEVIATION FROM THE APPLICABLE STANDARD OF CARE
G. Martin Meyers, Esq.
Susan S. Singer, Esq.
On the Brief
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
NATURE OF THE MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rita Hofstatter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
December 17, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
December 18, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dr. Sapira . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dr. Becker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Events from 7:00 a.m. to 11:45 a.m. on December 18, 2018 . . . . . . . . . . . . . . . . 7
Dr. Borczuk’s and Dr. Cohen’s Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Dr. Borczuk’s Trial Testimony and Defense Counsel’s Objection . . . . . . . . . . . . . . . . 10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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TABLE OF AUTHORITIES
Comes v. N.J. Transit Rail Operations, Inc.,
2011 N.J.Super. Unpub. LEXIS 1138 (App. Div. 2011) . . . . . . . . . . . . . . . . . . . . 14
Congiusti v. Ingersoll Rand Co, Inc.,
306 N.J.Super. 126 (App. Div. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15, 16
Green v. Weiner,
766 A.2d 492 (Del. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Marpaka v. Patel,
2017 N.J.Super. Unpub. LEXIS 52 (App.Div. 2017) . . . . . . . . . . . . . . . . . . . . . . 13
McCalla v. Harnischfeger Corp.,
215 N.J.Super. 160 (App.Div.), certif. denied, 108 N.J. 219 (1987) . . . . . . . . . . . 14
Schulz v. Celotex Corp.,
942 F.2d 204 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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NATURE OF THE MOTION
This memorandum of law is submitted in support of plaintiff’s motion for an Order
allowing admission at trial of certain videotaped testimony of plaintiff’s emergency medicine
expert, Pierre Borczuk, M.D., regarding the deviation from standard of care by the defendant
physicians with respect to their failure to provide plaintiff’s decedent with continuous heart
monitoring while she was in the Emergency Department of Valley Hospital. Defendants object
without basis that the testimony exceeds the scope of Dr. Borczuk’s expert reports.
PRELIMINARY STATEMENT
At critical issue in this medical malpractice case is defendant’ desperate effort to exclude
certain de bene esse deposition testimony1 by plaintiff’s Board certified emergency medicine
expert, Pierre Borczuk MD. Specifically, defendants 2 have made clear their to desire to shield
from the jury Dr. Borczuk’s opinion that, in light of the medical history and life- threatening
condition of plaintiff’s decedent, Rita Hofstatter, in the hours before her death at Valley
Regional Hospital, defendants’ failure to provide her with continuous heart monitoring violated
the applicable standard of care. Defendants groundlessly contend that testimony is dehors Dr.
Borczuk’s reports. By this motion plaintiff seeks, for the benefit of the Court and all parties
involved, a ruling by this Court allowing that testimony to be presented to the jury.
1
Dr. Borczuk’s trial testimony was taken by videotaped deposition on November 19, 2023. That
deposition is referred to herein as “de bene esse deposition”, to distinguish it from Dr.
Borczuk’s pretrial discovery deposition. References to the transcript of the de bene esse
deposition are designated here as “Borczuk DBT______”.
2
The defendants in this case are Dr. Andrew Sapira, who had responsibility for Ms. Hofstatter in
Valley Regional’s Emergency Department from approximately 1:30 a.m. to 7:00 a.m., followed
by defendant, Dr. George Becker upon a change of shift in the Emergency Department at about
7:00 a.m.
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The criticality of the issue at hand can only be understood in context of the ultimate,
and hotly contested, question in this case: whether, as plaintiff’s cardiology expert, Dr. Stanley
Schneller, opines, Ms. Hofstatter, would likely have survived resuscitation from a promptly
recognized and treated arrest due to ischemic ventricular fibrillation had she been placed on
continuous electronic monitoring; or whether, as defendants’ cardiology expert, Dr. Marc Cohen
opines, Ms. Hofstatter experienced “sudden death” in asystole, a non-shockable rhythm, and
that therefore monitoring before that event would not have made a difference. (See Exh. A,
Schneller report, p. 4; Exh. B, Cohen report, pp. 3-4). 3
The issue propelling this motion arose during the course of Dr. Borczuk’s de bene esse
deposition. (See Exh E, Borczuk DBT32:2-39:1). Defendants objected to Dr. Borczuk’s
testimony that electronic heart monitoring was standard of care on the purported ground that it
exceeded the scope of Dr. Borczuk’s reports. 4 That “ground” blatantly ignores the fact that Dr.
Borcuk’s February 19, 2021 report specifically referred to a lack of “proper monitoring” within
the context of, and as the product of, a series of defendants’ actions and inactions which Dr.
Borczuk identified as deviations from the standard of care. (See Exhibit D, 2/19/21 Borczuk
report, pg. 5).
As described in more detail below, Dr. Borczuk’s reports recount his opinions, stated
within a reasonable degree of medical certainty, as to a cumulative and synergistic series of
deviations from standard of care, starting with a failure by Dr. Sapira to ensure that Ms.
Hofstatter understood the risk of her refusal of intravenous hydration for the life-threatening
3
The designations used in this brief “A”, “B”, “C”, etc. refer to the designations used in the
accompanying certification of Susan S. Singer.
4
Dr. Borczuk submitted two reports. The first, dated November 22, 2020 is referenced in this
brief as “Exhibit C”, attached to certification of Susan S. Singer. The second, dated February
19, 2021 is referenced as “Exhibit “D”, attached to the Singer certification
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low blood pressure she experienced in the ER on November 18, 2017, followed by Dr. Sapira’s
premature discharge notation on Ms. Hofstatter’s chart, and by Dr. Becker’s complete denial of
any responsibility for Ms. Hofstatter’s care, based on Dr. Sapira’s “discharge” notation, even
when it had become patently obvious that Ms. Hofstatter remained an active patient in the ER
on Dr. Becker’s watch. (See fn. 2, above and Exh C, November 22, 2022 Borczuk report, pp.
4-6). Indeed, just prior to her death, Ms. Hofstatter spent approximately four hours in the
Valley Hospital Emergency Department without being seen by any physician.
Dr. Borczuk’s subsequent February 18, 2021 report specifically noted the lack of
“effective” and “proper” monitoring as the product of defendants’ serial deviations from the
applicable standard of care. (Exh. D, Borczuk 2/19/21 report, pp. 4-5). In that context,
defendants’ insistence that the words “deviation from standard of care” had to be incanted with
regard to the lack of electronic monitoring is inconsistent with relevant case law, as we discuss
in detail, below.
In the colloquy about the evidentiary issue at hand during Dr. Borczuk’s de bene esse
deposition, defense counsel claimed surprise that Dr. Borczuk would testify that monitoring was
standard of care under the circumstances presented. The claim of surprise is risible.
Defendants knew perfectly well that Dr. Borczuk was asserting that continuous heart monitoring
is standard of care in the circumstances of Ms. Hofstatter’s medical history and abnormal blood
pressure readings in the hours before her death. As we describe in detail below, at Dr.
Borczuk’s de bene esse deposition, defense counsel was poised to jump in with a prepackaged
objection the minute plaintiff’s counsel uttered the word “monitoring”, before plaintiff’s
counsel had even asked a question about heart monitoring as standard of care. Not only did Dr.
Borczuk repeatedly refer to the lack of “ monitoring” in his February 2023 report, but as
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reflected by defense counsel’s anticipatory objection, everyone involved in this case knew that
the central issue was whether Rita Hofstatter’s life could have been saved had the defendant
physicians taken the obvious step of having her heart continuously monitored electronically so
that a cardiac arrest would have been instantaneously detected and resuscitation efforts could
have been made timely.
Defendants’ efforts to excise the expert testimony at issue on what amounts to a
semantic game should be rejected by this Court. Plaintiff’s motion to permit the testimony to
go to the jury should be granted.
FACTUAL BACKGROUND
Rita Hofstatter
Rita Hofstatter was a high spirited woman, optimistic in outlook, and deeply engaged
with her grandchildren. At the time of her death under the “care” of the defendant physicians
she had a significant cardiological history as well as a history of hypertension, hyperlipidemia,
congestive heart failure, and renal disease. Despite this complex medical history, at the time of
her death Ms. Hofstatter was living in an independent living senior apartment complex, enjoyed
an active social life at the complex, often rode around town on a motor scooter, and lived for
weekly weekend time with her two grandkids.
December 17, 2017
On November 17, 2017, at approximately 3:00 p.m., Ms. Hofstatter was admitted to
Valley Hospital, following dialysis, with a complaint of heart pain. At the renal clinic Ms.
Hofstatter had been heart monitored. Vital signs following her admission to the hospital on
December 17 reflected blood pressure readings of: 137/77 at 3:13 p.m.; 182/55 at 6 p.m.; and
154/77 at 8:00 p.m., consistent with her chronic hypertension. A troponin test administered on
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December 17 yielded a reading of .05. At approximately 8:00 p.m. Ms. Hofstatter was
discharged, and returned home.
December 18, 2017
Dr. Sapira
At approximately 1:30 a.m. on November 18, 2017, about four and a half hours after her
discharge from the Valley Hospital ER on the night of December 17, Ms. Hofstatter returned on
her own initiative to the ER complaining of nausea, and dizziness “like the room swimming”.
The ER physician having responsibility for Ms. Hofstatter was Dr. Sapira. The records available
to Dr. Sapira at admission on November 18 reflect, as noted above, a history of significant
cardiac pathology, including atherosclerotic coronary artery disease (history of cardiac stents),
prior myocardial infarction, transient ischemic attack, and atrial fibrillation. (Exhibit F, Bates
4764, 4773). Her cardiac program included bisoprol, clopidogrel, diltiazem, hydralazine,
isosorbide and ranolazine. (Exh. F, Bates 4774-4775; Exh. A, Schneller report, p. 2).
An ECG ordered by Dr. Sapira at 2:04 a.m. noted “ST and T wave abnormality, consider
ischemia.” Exh. F, (Bates 4798). Further, during the ten hours between Ms. Hofstatter’s
admission on November 18, 2017 at approximately 1:30 a.m. and 11:15 a.m. when a nurse
found her unresponsive and pulseless in her hospital bed, Ms. Hofstatter’s blood pressure took a
dramatic descent, from 133/74 at 139 a.m. upon her admission, and then to 89/56 at 3:42 a.m.,
92/46 at 5:00 a.m., 96/58 at 7:00 a.m. when Dr. Sapira’s shift ended; and 90/38 at 10:30 a.m.
after Dr. Becker’s shift had begun. (Exh. F, Bates 4776, 4778, 4812, 4818).
In his report of November 22, 2020, discussed below, Dr. Borczuk characterized these
readings as signaling a potentially life-threatening condition. (Exh. C, Borczuk 11/22/20
Report, p.4). Dr. Sapira considered Ms. Hofstatter’s plummeting blood pressure of sufficient
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significance that at approximately 6:42 a.m. he ordered a bolus of saline for intravenous
administration. (Exh. F, Bates 4792). Ms. Hofstatter refused the hydration procedure and said
she wanted to go home. In his notes Dr. Sapira indicated that he told Ms. Hofstatter that her
symptoms might be resulting from dehydration, but there is no indication in the record that he
explained to her the significant risks of failure to treat or that he otherwise assessed her capacity
to make what amounted to a refusal of treatment against medical advice. Instead, Dr. Sapira
simply recorded Ms. Hofstatter on the chart as discharged. (Exh. D, Borczuk February 19, 2021
Report, p, 4).
Dr. Becker
Dr. Becker’s shift in the ER began at about 7:00 a.m., when Dr. Sapira’s was ending.
During his shift he had responsibility for the zone in which Ms. Hofstatter’s bed was located
(Exh. G, Becker dep. T21:14-15). In deposition, however, Dr. Becker adamantly denied any
responsibility for Ms. Hofstatter’s care because she had been “discharged”. It was his position
that he did not even have responsibility for familiarizing himself with a discharged patient’s
condition. (Id. T21:25-22:9) Dr. Becker could recall no specific discussion with Dr. Sapira
about Ms. Hofstatter. He testified that the general type of discussion he would have with the
preceding ER doctor (here Dr. Sapira) about a patient marked “discharged” was simply that she
had been discharged. (Id. T21:19-24).
Dr. Becker did not see Ms. Hofstatter at all until he was summoned by nursing staff at
about 11:45 a.m. when Ms. Hofstatter had been found pulseless in her hospital bed. (Id. T13:5-
15:12).
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Events from 7:00 a.m. to 11:45 a.m. on December 18, 2018
At about 8:45 a.m. Ms. Hofstatter’s daughter, Tina Giliberti called the ER and spoke
with one of the nurses on duty. Ms. Giliberti, who was a constant participant in
communications with her mother’s medical providers, told nursing staff that her mother should
not be discharged until another troponin test was taken and that Ms. Hofstatter’s cardiologist
should be contacted. Nursing staff contacted a doctor substituting for Ms. Hofstatter’s
cardiologist. (Exh. F, Bates 4821). There is no indication that the substitute cardiologist saw
Ms. Hofstatter, but he formulated a plan to check orthostatic signs and ordered a troponin test.
(Id).
Nurses’ mid-morning notes indicate that Ms. Hofstatter was “last seen normal” at 10:30
a.m. (Id). At that time she was noted to be agitated and unable to tolerate a blood pressure cuff,
so a nurse measured her blood pressure manually, with a resultant reading of 90/38. (Id). Dr.
Becker was notified of Ms. Hofstatter’s blood pressure reading of 10:30, but still made no
appearance at her bedside (Exh. F, Bates 4818). At 10:45 a.m. Ms. Hofstatter was seen “moving
in bed”. (Id.). At 11:15 a.m. a nurse found Ms. Hofstatter unresponsive and pulseless. (Exh. F,
Bates 4812). ACLS was commenced and Ms. Hofstatter was placed on a monitor and
defibrillator (Exh. F, Bates 4821). Resuscitation efforts were unsuccessful.
Dr. Borczuk’s and Dr. Cohen’s Reports
In his November 22, 2020 report Dr. Borczuk stated his opinion within a reasonable
degree of certainty that both Drs. Sapira and Becker deviated from the accepted standard of
care, and that those deviations were substantial factors leading to Ms. Hofstatter’s cardiac arrest
and ultimate death. (Exh. C, Borczuk 11/22/20 report).
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In that report Dr. Borczuk opined that, given Ms. Hofstatter’s multiple chronic medical
problems and hypertension of unknown etiology, Dr. Sapira’s failure to engage with Ms.
Hofstatter about the life-threatening risks of her refusal of care, failure to enlist Ms. Hofstatter’s
daughter in a discussion of the life-threatening implications of refusal of care, or to otherwise
intervene by way of a formal assessment of Ms. Hofstatter’s understanding of the risks of
refusal constituted a deviation from the standard of care applicable to emergency medicine
doctors. (Id., pp. 4-5). Dr. Borczuk explained that in most instances such an informed
discussion leads to acceptance of treatment. (Id. p. 4). He further opined that upon change of
shift and thereafter, Dr. Becker’s complete abnegation of any responsibility for Ms. Hofstatter,
particularly after he had been notified of her actual active status by at least 10:00 a.m. on the
morning of November 18, 2018 (Exh. F, Bates 4821) violated the applicable standard of care.
These cumulative deviations from the accepted standard of care led to a vicious cycle, as Dr.
Borczuk described it, of non-treatment for low blood pressure, leading to decreased cardiac
perfusion and cardiac dysfunction, then cardiac arrest. (Exh. C, Borczuk November 22, 2020
Report, pp. 5-6).
Defendants’ cardiology expert, Marc Cohen, MD, issued a report on January 26, 2023.
(Exhibit B). In his report, Dr. Cohen expressed the opinions that when Ms. Hofstatter’s heart
arrested, the “initial reading” on the monitor was asystole, a condition with a very poor
prognosis. (Id., Cohen report, p. 3). Dr. Cohen’s report thus created an inference that nothing
done or not done by the defendants would have made a difference.
The glaring problems with that opinion is that an “arrest” is not the same as “asystole”,
and “[t]hat the initial cardiac rhythm recorded once a monitor was attached was asystole, after
the patient was found dead, unresponsive and pulseless, 45 minutes after she was ‘last seen
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normal’ and 30 minutes after she was last seen ‘moving’ does not mean that the rhythm that
caused the arrest was asystole.” Exhibit A, Schneller report, pp. 3-4, emphasis added). Dr.
Cohen’s opinion thus raised the issue which took center stage during the remainder of the
litigation: whether Ms. Hofstatter would more likely than not have been successfully
resuscitated had she been on continuous monitoring.
In response to Dr. Cohen’s report, Dr. Borczuk’s February 19, 2021 report specifically
addressed the absence of “effective” and “proper” monitoring as well as the different ultimate
outcome such monitoring would likely have produced. His report acknowledged that successful
resuscitation is unlikely when a patient is asystole, but pointed out that Ms. Hofstatter was
placed on a monitor only after she was found pulseless and unresponsive at 11:15 a.m. (Exh. D,
Borczuk report, 2/19/21 report, p. 5). Dr. Borczuk wrote:
“…the failure to properly address [Ms. Hofstatter’s] agitation, and to obtain the
assistance of her daughter in doing so, precluded the ability to perform effective
monitoring.” (Exh. D, 2/19/21 Borczuk report, p. 4)
From my experience with patients who arrest either pre-hospital, in the ED or
who pass away (do not resuscitate, do not intubate, comfort measure only
situation in the ED, asystole is a terminal rhythm and not the initial rhythm.
“…it is more likely than not that her initial rhythms was shockable, 5 and that if
she had received proper treatment and monitoring prior to its degeneration into
asystole, she would have been successfully resuscitated.
Id., p. 5, emphasis added.
5
Dr. Borczuk’s opinion that Ms. Hofstatter’s initial rhythm was more likely that not shockable
was later confirmed by the in depth analysis of the autopsy and medical records by plaintiff’s
cardiology expert, Dr. Stanley Schneller. Dr. Schneller’s report stated: “The cardiac arrest was
most likely a consequence of fatal ventricular fibrillation or ventricular tachycardia leading to
fatal ventricular fibrillation in the context of acute myocardial ischemia…Had Mrs. Hofstatter’s
cardiac rhythm been continuously monitored after she was in the ED, and had the onset of
ventricular fibrillation been announced by an alarm alert, defibrillation would have been prompt
and effective.” (Exh. A at 3, 4).
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Dr. Borczuk’s Trial Testimony and Defense Counsel’s Objection
At his videotaped deposition, plaintiff’s counsel asked the following question:
“Q. Now Dr. Borczuk, in your review of the medical records that you
reviewed in this case, did you see any evidence – you had mentioned vital signs.
Did you see any many [sic] evidence of monitoring of Ms. Hofstatter’s vital
signs?” (Exhibit E, DBT 32:2-7)
At that point defense counsel immediately interjected an objection, clearly anticipating
that plaintiff’s counsel was going to ask Dr. Borczuk whether failure to monitor Ms. Hofstatter
was a deviation from the standard of care, and having ready at hand an argument that such
testimony was not disclosed by Dr. Borczuk’s report. Without the words “standard of care” vis-
a-vis monitoring even having been uttered defense counsel jumped in and asserted:
“MS. SHERMAN: I’m not sure where this line of questioning is going and I
don’t know what the doctor’s response is going to be, but can you point to me
where in the doctor’s reports he discusses a precise deviation from the standard
of care relative to the questions – the questions that I am assuming you are going
to ask. I could be wrong.” (Exh. E, DBT 32:12-19, emphasis added)
When plaintiff’s counsel pointed to references in Dr. Borczuk’s report specifically
referring to monitoring, Ms. Sherman stated:
“MS SHERMAN: “Right. I see that. I knew that’s what you were referring to. I
made that assumption and I was right. … he has never offered the opinion that
this failure of monitoring was a deviation from the standard of care.
He includes that as a fact in his causation opinion referencing Dr.
Cohen’s report but he never references that as a deviation of care.” (Id., DBT
32:21-33:15, emphasis added)
Despite knowing precisely what questions plaintiff’s counsel was going to ask
regarding monitoring as standard of care, Ms. Sherman then claimed surprise and
prejudice to her clients. (Id., DBT 34:9-13). In contradiction, plaintiff’s counsel argued:
“MR. MEYERS: Well, he says that “The failure to properly address her agitation
and to obtain the assistance of her daughter in doing so, precluded the ability to
perform effective monitoring….
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I think there is a clear implication that the action that prevented her from being
properly monitored was a deviation from the accepted standard of care. I don’t
think it’s fair for a physician [to have to] make that statement, you know, talk
about deviation from the accepted standard of care every time he mentions an
issue.” (Id., DBT 34:14-35:4)
After counsel agreed that a court would have to decide the admissibility of evidence
issue, and subject to defense counsel’s objection, Dr. Borczuk testified as follows:
Q. Now, Dr. Borczuk, when you reviewed the materials that you mentioned
earlier were you able to make a determination as to whether Ms. Hofstatter was
placed on a heart monitor at any point during the time of her admission to the
emergency room at Valley Hospital in the early morning of November 18, 2017
until the time of her death?
A. That’s – to know whether she was on a monitor is a little hard, but I know
that she was not on a monitor when they found her pulseless because they put a
specific note that she went back on a monitor – that she went on a monitor and a
defibrillator.
So at the time that she had her arrest, she was not on a monitor. That’s –
that’s the hard evidence that I saw in the chart. I know she had pulled off her 02
sat monitor but that’s different than, you know, electrodes on the chest.
Q. Okay, Now, do you have an opinion, to a reasonable degree of medical
certainty, regarding whether a patient with Rita Hofstatter’s existing medical
conditions and her medical history, should have been placed on a heart monitor
while she was a patient at the Valley Hospital emergency room on November 18,
2017?
A. MS. SHERMAN: Objection. And I already placed my objection on the
record so we don’t have to go off.
BY MR. MEYERS:
Q. You can answer the question, Doctor…
A. … Definitely when she had a blood pressure of 89 at 3:40 a.m. That
would have anybody put the patient on a monitor – that would have any patient
go on a monitor, a cardiac monitor, whether it was a 40-year old, a 50-year old, a
60-year old. I don’t know if that answers your question.
Q. Okay. Well, then would it be your opinion then, to a reasonable degree of
medical certainty, that the failure to place her on a heart monitor at any time after
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3:40 was a deviation, and assuming that it was never done because we
understand that you are not certain at this point, but assuming that she was not
placed at any time on a heart monitor, would it be your opinion that that would
be a deviation from accepted standards of medical care for emergency room
physicians?
A. Yes.
Q. And could you tell us who – which of the physicians who are Defendants
in this case would have been responsible for the failure to place Ms. Hofstatter
on a heart monitor?
A. Both of these physicians were responsible clinicians during their
respective time frame. Her blood pressure was low and that started during Dr.
Sapira’s watch. So he is the doctor who would have ordered cardiac monitoring
during that time period.
On sign-out, if Dr. Becker got sign-out from Dr. Sapira and heard that her blood
pressure had been low on multiple times, then – and if she wasn’t on a cardiac
monitor at that time, then it was his obligation to order cardiac monitoring.”
(Exh. E, DBT T39:5-41:23).
ARGUMENT
At the heart of plaintiff’s case is the opinion of plaintiff’s cardiology expert, Dr.
Schneller that:
“In the context of the clinical evidence of acute and pathological evidence of
early myocardial ischemia in this case, unrecognized, unrecorded and untreated
ventricular fibrillation is the most likely cause of death…
The medical records indicate not only that Mrs. Hofstatter’s cardiac arrest in the
ED of the Valley Hospital was unwitnessed but that the cardiac rhythm was
monitored only after the patient was discovered to be unresponsive and
pulseless, between 30 and 45 minutes after she was last noted to be alive.
The likelihood of successful resuscitation from cardiac arrest due to ventricular
arrhythmia in the context of myocardial ischemia depends on the rapidity of
intervention following arrest. Early recognition of ventricular fibrillation
followed by prompt defibrillation offers the best chance of successful
resuscitation. Had Mrs. Hofstatter’s cardiac rhythm been continuously
monitored while she was in the ED, and had the onset of ventricular fibrillation
been announced by an alarm alert, defibrillation would have been prompt and
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effective. In the absence of such monitoring, Mrs. Hofstatter was significantly
deprived of the chance of surviving the fatal ventricular arrhythmia her acute
myocardial ischemia caused.” (Exh. A, Schneller report, p. 4).
Against the background of that pivotal issue in this litigation and in the context of Dr.
Borczuk’s explicit opinion regarding the serial deviations in the care provided to Ms.
Hofstatter, Dr. Borczuk’s reports make abundantly clear his opinion that heart monitoring was
standard of care for Ms. Hofstatter during the hours preceding her death in the Valley Hospital
Emergency Department. What other understanding could defendants’ have drawn from the
statement of pg. 5 of Dr. Borczuk’s report, following his observation that she was monitored
only after she was discovered pulseless at 11:15 a.m.’’, and that:
“It is more likely than not that [Ms. Hofstatter’s] initial rhythm was shockable,
and that if she had received proper treatment and monitoring prior to its
degeneration into asystole, she would have been successfully resuscitated.”
(Exh. D, Borczuk report, p. 5, emphasis added).
The dictionary definition of “proper” is “of the required type”. Oxford English
Dictionary, languages.oup.com/google-dictionary-en/h. As noted earlier in this brief, experts
do not have to use legal, formulaic words to permit even a jury (much less sophisticated
opposing counsel) to draw an inference that the expert has articulated facts supporting legal
standards for fault or causation. See, e.g., Marpaka v. Patel, 2017 N.J.Super. Unpub. LEXIS
52, *4 (App.Div. 2017) (“it is not necessary for a testifying expert to use the ‘talismanic’ or
‘magical words’ represented by the phrase ‘reasonable degree of medical certainty’”); Schulz
v. Celotex Corp., 942 F.2d 204, 208 (3d Cir. 1991) (“[c]are must be taken…to see that the
incantation [‘reasonable degree of medical certainty’] does not become a semantic trap and the
failure to voice it is not used as a basis for exclusion without analysis of the testimony itself.”)
(applying federal law as not in conflict with New Jersey evidence law on this point); Green v.
Weiner, 766 A.2d 492, 495-496 (Delaware Supreme Court, 2001) (holding that a medical
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expert’s report which failed to articulate “deviation from standard of care” language
nevertheless was sufficient to allow a jury to reasonably infer the standard of care; and stating
that experts in medical malpractice cases are not required to “to couch their opinions in legal
terms or to articulate the standard of care with a high degree of legal precision or with ‘magic
words.”)
Case law is also clear that while “an expert’s opinion may be confined to the opinions
given in the report, as well as the facts and data given in the report,” nevertheless “the ‘logical
predicates for and conclusions from statements made in the report are not foreclosed’”. Comes
v. N.J. Transit Rail Operations, Inc., 2011 N.J.Super. Unpub. LEXIS 1138, *39 (App. Div.
2011), citing Congiusti v. Ingersoll Rand Co, Inc., 306 N.J.Super. 126, 131 (App. Div. 1997), in
turn quoting from McCalla v. Harnischfeger Corp., 215 N.J.Super. 160 (App.Div.), certif.
denied, 108 N.J. 219 (1987).
Here Dr. Borczuk’s report disclosed his opinion that defendants had not provided Ms.
Hofstatter with “proper” monitoring that would have detected a cardiac arrest in sufficient time
to permit successful resuscitation. Dr. Borczuk’s testimony furnished the “logical predicate” for
that opinion; namely Ms. Hofstatter’s plunging blood pressure on November 18, 2017, a fact
amply supported in Dr. Borczuk’s opinion by the data provided by the hospital records and
discussed in detail in Dr. Borczuk’s reports. (Exh. E, DBT36:16-37:11; Exh. C, 11/22/20
Borczuk report, p. 3).
Further, even if the Court were to conclude that Dr. Borczuk’s February 19, 2021 report
failed to adequately identify monitoring as “standard of care” in the circumstances presented,
that would by no means end the inquiry. In Congiusti v. Ingersoll-Rand Co., Inc., 306
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N.J.Super. 126, 131-132 (App.Div. 1997) the Appellate Division provided guidance for an
inquiry that trial judges should make in such situations:
“While a trial judge may in his or her discretion preclude testimony on a subject
not covered in the written reports furnished by an adversary, in Ratner v. General
Motors Corp., 241 N.J.Super. 197 (App.Div. 1990) we strongly urged the trial
judge in the exercise of his discretion to ‘suspend the imposition of [t]he sanction
[] [of exclusion]’ when certain factors were present. These were ‘(1) the absence
of a design to mislead, (2) absence of the element of surprise if the evidence is
admitted, and (3) absence of prejudice which would result from the admission of
the evidence.’ Ibid (quoting Westphal v. Guarino, 163 N.J.Super. 139, 145-46
(App.Div.), aff’d o.b., 78 N.J. 308 (1978)).” (bracketed omissions in the original)
Here there was clearly no intent to deceive. Defendants’ objections do not even suggest
such a motive on plaintiff’s part. As for the element of surprise, this case presents precisely the
opposite. Without burdening the Court with repetition, the transcript quoted at length at pp. 10-
11 above reveals an adversary poised to object, armed with a pre-prepared argument that Dr.
Borczuk’s report failed to identify failure to monitor as a deviation from standard of care, before
plaintiff’s counsel had done anything other than say the word “monitoring” in the context of a
question involving narrative of the hospital records. There was no surprise here.
There is also no prejudice to defendants. At Dr. Borczuk’s deposition defendants chose
not to question Dr. Borczuk about the statements in his reports about the absence of “effective”
and “proper” monitoring. That defendants did not pursue that line of inquiry in Dr. Borczuk’s
pre-trial deposition may have been the product of a strategy to try to preclude standard of care
testimony related to monitoring, rather than to risk the possibility that deposition questions
would permit Dr. Borczuk to flesh out his opinion. Further, should the Court have any concerns
about prejudice, those concerns could be fully met by allowing defendants’ experts to
supplement their reports with rebuttal prior to trial, now scheduled for February 20, 2024.
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In sum, even if the Court disagrees with plaintiff’s firmly held view that Dr. Borczuk’s
reports gave defendants adequate notice of his opinion that monitoring was standard of care,
none of the criteria laid out in Congiusti support the drastic remedy of barring the critical
testimony at issue here.
CONCLUSION
For the foregoing reasons, plaintiff respectfully urges the Court to grant plaintiff’s
motion to permit Dr. Borczuk’s testimony regarding monitoring as standard of care to be
presented to the jury.
Respectfully submitted,
LAW OFFICES OF G. MARTIN MEYERS, P.C.
Attorney for Plaintiff
By: /s/ G. Martin Meyers
Dated: November 15, 2023 G. Martin Meyers, Esq.
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Susan S. Singer, Esq. (Atty. ID#005661977)
G. Martin Meyers, Esq. (Atty. ID#271881971)
LAW OFFICES OF G. MARTIN MEYERS, P.C.
35 West Main Street, Suite 106
Denville, New Jersey 07834
Telephone: (973) 625-0838
Telefax: (973) 625-5350
gmm@gmeyerslaw.com
Counsel for Plaintiffs
:
TINA B. GILIBERTI, Individually and
: SUPERIOR COURT OF NEW JERSEY
as Executrix of the Estate of RITA S.
: LAW DIVISION – BERGEN COUNTY
HOFSTATTER, Deceased, :
Preview
BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 2 Trans ID: LCV20233376894 Susan S. Singer, Esq. (Atty. ID#005661977) G. Martin Meyers, Esq. (Atty. ID#271881971) LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 Telephone: (973) 625-0838 Telefax: (973) 625-5350 Attorney for Plaintiff : TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY HOFSTATTER, Deceased, : : DOCKET NO. BER-L-4765-19 Plaintiff, : : Civil Action v. : : VALLEY HOSPITAL, VALLEY HEALTH : SYSTEM, VALLEY MEDICAL GROUP, : VALLEY EMERGENCY ROOM ASSOC- : IATES, ANDREW SAPIRA, M.D., : GEORGE BECKER III, M.D., HOWARD : ORAL ARGUMENT REQUESTED GOLDSCHMIDT, M.D., SHANNON : ROSS, R.N., AJELDIN HUIT, R.N., : NOTICE OF MOTION TO PERMIT JESENIA MARTINEZ, R.N., LAURA : ADMISSION OF DE BENE ESSE PROVENZALE, R.N., JOHN DOE : TRIAL TESTIMONY OF PIERRE HEALTHCARE PROVIDERS 1-15 and : BORCZUK, M.D., THAT FAILURE TO ABC CORPORATIONS 1-15, : MONITOR PLAINTIFF’S DECEDENT : CONSTITUTED A DEVIATION : FROM THE STANDARD OF CARE Defendants. : : TO: Renee J. Sherman, Esq. RUPRECHT HART RICCIARDULLI & SHERMAN, LLP 53 Cardinal Drive, Suite 1 Westfield, NJ 07090 T 908-232-4800 F 908-232-4801 rsherman@rhwlawfirm.com Counsel for Defendants George L. Becker, III, M.D. and Andrew S. Sapira, M.D. 1 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 2 of 2 Trans ID: LCV20233376894 MADAM: PLEASE TAKE NOTICE that on Friday, December 1, 2023, at 9:00 a.m. in the forenoon or as soon thereafter as counsel may be heard, the undersigned, G. Martin Meyers, Esq., attorney for Plaintiffs herein, will apply to the Superior Court of New Jersey, Bergen County, at the Justice Center, Hackensack, New Jersey, for an Order determining that the de bene esse testimony of Plaintiff’s Emergency Medicine expert, Pierre Borzcuk M.D., as regards his opinion that failure to monitor the heart of Plaintiff’s decedent, Rita Hofstatter, constituted a deviation from the accepted standard of care, and may be admitted in evidence at trial; TAKE FURTHER NOTICE THAT in support of the motion Plaintiff will rely upon the certification of Susan S. Singer, Esq., and the accompanying brief, and certification of service; in accordance with Rule 1:6-2(d) Plaintiff requests oral argument of the motion; TAKE FURTHER NOTICE THAT in accordance with Rule 1:6-2(d), we hereby request oral argument. In accordance with Rule 1:6-2(d) a proposed form of Order is submitted herewith. LAW OFFICES OF G. MARTIN MEYERS, P.C. Attorney for Plaintiff By:_/s/ Susan S. Singer SUSAN S. SINGER, ESQ. Dated: November 15, 2023 2 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 2 Trans ID: LCV20233376894 Susan S. Singer, Esq. (Atty. ID#005661977) G. Martin Meyers, Esq. (Atty. ID#271881971) LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 Telephone: (973) 625-0838 Telefax: (973) 625-5350 gmm@gmeyerslaw.com Counsel for Plaintiffs : TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY HOFSTATTER, Deceased, : : DOCKET NO. BER-L-4765-19 Plaintiff, : : Civil Action v. : : VALLEY HOSPITAL, VALLEY HEALTH : SYSTEM, VALLEY MEDICAL GROUP, : VALLEY EMERGENCY ROOM ASSOC- : IATES, ANDREW SAPIRA, M.D., : GEORGE BECKER III, M.D., HOWARD : GOLDSCHMIDT, M.D., SHANNON : ROSS, R.N., AJELDIN HUIT, R.N., : JESENIA MARTINEZ, R.N., LAURA : ORDER PROVENZALE, R.N., JOHN DOE : HEALTHCARE PROVIDERS 1-15 and : ABC CORPORATIONS 1-15, : : Defendants. : : THIS MATTER, having been opened to the Court upon Motion In Limine of G. Martin Meyers, Esq., counsel for Plaintiff, and the Court having considered the papers submitted by counsel for Plaintiff in support thereof, and the Court having heard argument of counsel, and for good cause shown, IT IS on this __________day of ____________________2023, 1 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 2 of 2 Trans ID: LCV20233376894 ORDERED that the de bene esse opinion testimony of Plaintiff’s Emergency Medicine expert, Pierre Borzcuk M.D., that failure to monitor the heart of Plaintiff’s decedent, Rita Hofstatter, constituted a deviation from the accepted standard of care, may be admitted in evidence at trial. FURTHER ORDERED that copies of this Order be served on all counsel herein within days of the date hereof. HON. NICHOLAS OSTUNI, J.S.C. Opposed Unopposed 2 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 2 Trans ID: LCV20233376894 G. Martin Meyers, Esq. (Atty. ID#271881971) LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 Telephone: (973) 625-0838 Telefax: (973) 625-5350 gmm@gmeyerslaw.com Attorney for Plaintiff : : SUPERIOR COURT OF NEW JERSEY TINA B. GILIBERTI, Individually and : LAW DIVISION – BERGEN COUNTY as Executrix of the Estate of RITA S. HOFSTATTER, Deceased, : : DOCKET NO. BER-L-4765-19 Plaintiff, : : Civil Action v. : : VALLEY HOSPITAL, VALLEY HEALTH : SYSTEM, VALLEY MEDICAL GROUP, : VALLEY EMERGENCY ROOM ASSOC- : IATES, ANDREW SAPIRA, M.D., : CERTIFICATION OF GEORGE BECKER III, M.D., HOWARD : SUSAN S. SINGER, ESQ. GOLDSCHMIDT, M.D., SHANNON : ROSS, R.N., AJELDIN HUIT, R.N., : JESENIA MARTINEZ, R.N., LAURA : PROVENZALE, R.N., JOHN DOE : HEALTHCARE PROVIDERS 1-15 and : ABC CORPORATIONS 1-15, : : Defendants. : : I, Susan S. Singer, Esq., do hereby certify as follows: 1. I am an attorney at law of the State of New Jersey, of counsel in Law Offices of G. Martin Meyers, P.C., counsel for Plaintiff in the above matter. 2. Attached hereto at Exhibit “A” is a true copy of the 8/25/21 report of Stanley J. Schneller, M.D., plaintiff’s expert in cardiology. 1 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 2 of 2 Trans ID: LCV20233376894 3. Attached hereto at Exhibit “B” is a true copy of the 1/26/21 report of Marc Cohen, M.D., Defendants’ expert in cardiology. 4. Attached hereto at Exhibit “C” is a true copy of the 11/22/20 report of Pierre Borczuk, M.D., Plaintiffs’ expert in emergency medicine. 5. Attached hereto at Exhibit “D” is a true copy of Dr. Borczuk’s 2/19/21 rebuttal report herein. 6. Attached hereto at Exhibit “E” is a true copy of relevant portions of the 10/19/23 de bene esse trial testimony of Pierre Borczuk, M.D., Plaintiffs’ expert in emergency medicine. 7. Attached hereto at Exhibit “F” is a true copy of relevant excerpts of the hospital records of Decedent Rita Hofstatter herein, Bates stamped by Defendants. 8. Attached hereto at Exhibit “G” is a true copy of relevant pages from the 10/15/20 Deposition of Defendant George L. Becker, M.D. I hereby certify that the foregoing statements made by me are true. I am aware of the fact that, if any of the statements made by me is willfully false, I am subject to punishment. Dated: November 15, 2023 By: /s/ Susan S. Singer Susan S. Singer, Esq. 2 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 19 Trans ID: LCV20233376894 G. Martin Meyers, Esq. (Atty. ID#271881971) Susan S. Singer, Esq. (Atty. ID# 005661977 LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 Telephone: (973) 625-0838 Telefax: (973) 625-5350 gmm@gmeyerslaw.com Counsel for Plaintiffs : TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY HOFSTATTER, Deceased, : : DOCKET NO. BER-L-4765-19 Plaintiff, : : Civil Action v. : : VALLEY HOSPITAL, VALLEY HEALTH : SYSTEM, VALLEY MEDICAL GROUP, : VALLEY EMERGENCY ROOM ASSOC- : IATES, ANDREW SAPIRA, M.D., : GEORGE BECKER III, M.D., HOWARD : GOLDSCHMIDT, M.D., SHANNON : ROSS, R.N., AJELDIN HUIT, R.N., : JESENIA MARTINEZ, R.N., LAURA : PROVENZALE, R.N., JOHN DOE : HEALTHCARE PROVIDERS 1-15 and : ABC CORPORATIONS 1-15, : : Defendants. : : MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO DETERMINE ADMISSIBILITY OF TRIAL TESTIMONY OF PLAINTIFF’S EMERGENCY ROOM EXPERT THAT FAILURE TO HEART MONITOR PLAINTIFF’S DECEDENT CONSTITUTED A DEVIATION FROM THE APPLICABLE STANDARD OF CARE G. Martin Meyers, Esq. Susan S. Singer, Esq. On the Brief BER-L-004765-19 11/15/2023 11:34:47 AM Pg 2 of 19 Trans ID: LCV20233376894 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii NATURE OF THE MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Rita Hofstatter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 December 17, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 December 18, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Dr. Sapira . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Dr. Becker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Events from 7:00 a.m. to 11:45 a.m. on December 18, 2018 . . . . . . . . . . . . . . . . 7 Dr. Borczuk’s and Dr. Cohen’s Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Dr. Borczuk’s Trial Testimony and Defense Counsel’s Objection . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 i BER-L-004765-19 11/15/2023 11:34:47 AM Pg 3 of 19 Trans ID: LCV20233376894 TABLE OF AUTHORITIES Comes v. N.J. Transit Rail Operations, Inc., 2011 N.J.Super. Unpub. LEXIS 1138 (App. Div. 2011) . . . . . . . . . . . . . . . . . . . . 14 Congiusti v. Ingersoll Rand Co, Inc., 306 N.J.Super. 126 (App. Div. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15, 16 Green v. Weiner, 766 A.2d 492 (Del. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14 Marpaka v. Patel, 2017 N.J.Super. Unpub. LEXIS 52 (App.Div. 2017) . . . . . . . . . . . . . . . . . . . . . . 13 McCalla v. Harnischfeger Corp., 215 N.J.Super. 160 (App.Div.), certif. denied, 108 N.J. 219 (1987) . . . . . . . . . . . 14 Schulz v. Celotex Corp., 942 F.2d 204 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ii BER-L-004765-19 11/15/2023 11:34:47 AM Pg 4 of 19 Trans ID: LCV20233376894 NATURE OF THE MOTION This memorandum of law is submitted in support of plaintiff’s motion for an Order allowing admission at trial of certain videotaped testimony of plaintiff’s emergency medicine expert, Pierre Borczuk, M.D., regarding the deviation from standard of care by the defendant physicians with respect to their failure to provide plaintiff’s decedent with continuous heart monitoring while she was in the Emergency Department of Valley Hospital. Defendants object without basis that the testimony exceeds the scope of Dr. Borczuk’s expert reports. PRELIMINARY STATEMENT At critical issue in this medical malpractice case is defendant’ desperate effort to exclude certain de bene esse deposition testimony1 by plaintiff’s Board certified emergency medicine expert, Pierre Borczuk MD. Specifically, defendants 2 have made clear their to desire to shield from the jury Dr. Borczuk’s opinion that, in light of the medical history and life- threatening condition of plaintiff’s decedent, Rita Hofstatter, in the hours before her death at Valley Regional Hospital, defendants’ failure to provide her with continuous heart monitoring violated the applicable standard of care. Defendants groundlessly contend that testimony is dehors Dr. Borczuk’s reports. By this motion plaintiff seeks, for the benefit of the Court and all parties involved, a ruling by this Court allowing that testimony to be presented to the jury. 1 Dr. Borczuk’s trial testimony was taken by videotaped deposition on November 19, 2023. That deposition is referred to herein as “de bene esse deposition”, to distinguish it from Dr. Borczuk’s pretrial discovery deposition. References to the transcript of the de bene esse deposition are designated here as “Borczuk DBT______”. 2 The defendants in this case are Dr. Andrew Sapira, who had responsibility for Ms. Hofstatter in Valley Regional’s Emergency Department from approximately 1:30 a.m. to 7:00 a.m., followed by defendant, Dr. George Becker upon a change of shift in the Emergency Department at about 7:00 a.m. 1 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 5 of 19 Trans ID: LCV20233376894 The criticality of the issue at hand can only be understood in context of the ultimate, and hotly contested, question in this case: whether, as plaintiff’s cardiology expert, Dr. Stanley Schneller, opines, Ms. Hofstatter, would likely have survived resuscitation from a promptly recognized and treated arrest due to ischemic ventricular fibrillation had she been placed on continuous electronic monitoring; or whether, as defendants’ cardiology expert, Dr. Marc Cohen opines, Ms. Hofstatter experienced “sudden death” in asystole, a non-shockable rhythm, and that therefore monitoring before that event would not have made a difference. (See Exh. A, Schneller report, p. 4; Exh. B, Cohen report, pp. 3-4). 3 The issue propelling this motion arose during the course of Dr. Borczuk’s de bene esse deposition. (See Exh E, Borczuk DBT32:2-39:1). Defendants objected to Dr. Borczuk’s testimony that electronic heart monitoring was standard of care on the purported ground that it exceeded the scope of Dr. Borczuk’s reports. 4 That “ground” blatantly ignores the fact that Dr. Borcuk’s February 19, 2021 report specifically referred to a lack of “proper monitoring” within the context of, and as the product of, a series of defendants’ actions and inactions which Dr. Borczuk identified as deviations from the standard of care. (See Exhibit D, 2/19/21 Borczuk report, pg. 5). As described in more detail below, Dr. Borczuk’s reports recount his opinions, stated within a reasonable degree of medical certainty, as to a cumulative and synergistic series of deviations from standard of care, starting with a failure by Dr. Sapira to ensure that Ms. Hofstatter understood the risk of her refusal of intravenous hydration for the life-threatening 3 The designations used in this brief “A”, “B”, “C”, etc. refer to the designations used in the accompanying certification of Susan S. Singer. 4 Dr. Borczuk submitted two reports. The first, dated November 22, 2020 is referenced in this brief as “Exhibit C”, attached to certification of Susan S. Singer. The second, dated February 19, 2021 is referenced as “Exhibit “D”, attached to the Singer certification 2 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 6 of 19 Trans ID: LCV20233376894 low blood pressure she experienced in the ER on November 18, 2017, followed by Dr. Sapira’s premature discharge notation on Ms. Hofstatter’s chart, and by Dr. Becker’s complete denial of any responsibility for Ms. Hofstatter’s care, based on Dr. Sapira’s “discharge” notation, even when it had become patently obvious that Ms. Hofstatter remained an active patient in the ER on Dr. Becker’s watch. (See fn. 2, above and Exh C, November 22, 2022 Borczuk report, pp. 4-6). Indeed, just prior to her death, Ms. Hofstatter spent approximately four hours in the Valley Hospital Emergency Department without being seen by any physician. Dr. Borczuk’s subsequent February 18, 2021 report specifically noted the lack of “effective” and “proper” monitoring as the product of defendants’ serial deviations from the applicable standard of care. (Exh. D, Borczuk 2/19/21 report, pp. 4-5). In that context, defendants’ insistence that the words “deviation from standard of care” had to be incanted with regard to the lack of electronic monitoring is inconsistent with relevant case law, as we discuss in detail, below. In the colloquy about the evidentiary issue at hand during Dr. Borczuk’s de bene esse deposition, defense counsel claimed surprise that Dr. Borczuk would testify that monitoring was standard of care under the circumstances presented. The claim of surprise is risible. Defendants knew perfectly well that Dr. Borczuk was asserting that continuous heart monitoring is standard of care in the circumstances of Ms. Hofstatter’s medical history and abnormal blood pressure readings in the hours before her death. As we describe in detail below, at Dr. Borczuk’s de bene esse deposition, defense counsel was poised to jump in with a prepackaged objection the minute plaintiff’s counsel uttered the word “monitoring”, before plaintiff’s counsel had even asked a question about heart monitoring as standard of care. Not only did Dr. Borczuk repeatedly refer to the lack of “ monitoring” in his February 2023 report, but as 3 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 7 of 19 Trans ID: LCV20233376894 reflected by defense counsel’s anticipatory objection, everyone involved in this case knew that the central issue was whether Rita Hofstatter’s life could have been saved had the defendant physicians taken the obvious step of having her heart continuously monitored electronically so that a cardiac arrest would have been instantaneously detected and resuscitation efforts could have been made timely. Defendants’ efforts to excise the expert testimony at issue on what amounts to a semantic game should be rejected by this Court. Plaintiff’s motion to permit the testimony to go to the jury should be granted. FACTUAL BACKGROUND Rita Hofstatter Rita Hofstatter was a high spirited woman, optimistic in outlook, and deeply engaged with her grandchildren. At the time of her death under the “care” of the defendant physicians she had a significant cardiological history as well as a history of hypertension, hyperlipidemia, congestive heart failure, and renal disease. Despite this complex medical history, at the time of her death Ms. Hofstatter was living in an independent living senior apartment complex, enjoyed an active social life at the complex, often rode around town on a motor scooter, and lived for weekly weekend time with her two grandkids. December 17, 2017 On November 17, 2017, at approximately 3:00 p.m., Ms. Hofstatter was admitted to Valley Hospital, following dialysis, with a complaint of heart pain. At the renal clinic Ms. Hofstatter had been heart monitored. Vital signs following her admission to the hospital on December 17 reflected blood pressure readings of: 137/77 at 3:13 p.m.; 182/55 at 6 p.m.; and 154/77 at 8:00 p.m., consistent with her chronic hypertension. A troponin test administered on 4 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 8 of 19 Trans ID: LCV20233376894 December 17 yielded a reading of .05. At approximately 8:00 p.m. Ms. Hofstatter was discharged, and returned home. December 18, 2017 Dr. Sapira At approximately 1:30 a.m. on November 18, 2017, about four and a half hours after her discharge from the Valley Hospital ER on the night of December 17, Ms. Hofstatter returned on her own initiative to the ER complaining of nausea, and dizziness “like the room swimming”. The ER physician having responsibility for Ms. Hofstatter was Dr. Sapira. The records available to Dr. Sapira at admission on November 18 reflect, as noted above, a history of significant cardiac pathology, including atherosclerotic coronary artery disease (history of cardiac stents), prior myocardial infarction, transient ischemic attack, and atrial fibrillation. (Exhibit F, Bates 4764, 4773). Her cardiac program included bisoprol, clopidogrel, diltiazem, hydralazine, isosorbide and ranolazine. (Exh. F, Bates 4774-4775; Exh. A, Schneller report, p. 2). An ECG ordered by Dr. Sapira at 2:04 a.m. noted “ST and T wave abnormality, consider ischemia.” Exh. F, (Bates 4798). Further, during the ten hours between Ms. Hofstatter’s admission on November 18, 2017 at approximately 1:30 a.m. and 11:15 a.m. when a nurse found her unresponsive and pulseless in her hospital bed, Ms. Hofstatter’s blood pressure took a dramatic descent, from 133/74 at 139 a.m. upon her admission, and then to 89/56 at 3:42 a.m., 92/46 at 5:00 a.m., 96/58 at 7:00 a.m. when Dr. Sapira’s shift ended; and 90/38 at 10:30 a.m. after Dr. Becker’s shift had begun. (Exh. F, Bates 4776, 4778, 4812, 4818). In his report of November 22, 2020, discussed below, Dr. Borczuk characterized these readings as signaling a potentially life-threatening condition. (Exh. C, Borczuk 11/22/20 Report, p.4). Dr. Sapira considered Ms. Hofstatter’s plummeting blood pressure of sufficient 5 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 9 of 19 Trans ID: LCV20233376894 significance that at approximately 6:42 a.m. he ordered a bolus of saline for intravenous administration. (Exh. F, Bates 4792). Ms. Hofstatter refused the hydration procedure and said she wanted to go home. In his notes Dr. Sapira indicated that he told Ms. Hofstatter that her symptoms might be resulting from dehydration, but there is no indication in the record that he explained to her the significant risks of failure to treat or that he otherwise assessed her capacity to make what amounted to a refusal of treatment against medical advice. Instead, Dr. Sapira simply recorded Ms. Hofstatter on the chart as discharged. (Exh. D, Borczuk February 19, 2021 Report, p, 4). Dr. Becker Dr. Becker’s shift in the ER began at about 7:00 a.m., when Dr. Sapira’s was ending. During his shift he had responsibility for the zone in which Ms. Hofstatter’s bed was located (Exh. G, Becker dep. T21:14-15). In deposition, however, Dr. Becker adamantly denied any responsibility for Ms. Hofstatter’s care because she had been “discharged”. It was his position that he did not even have responsibility for familiarizing himself with a discharged patient’s condition. (Id. T21:25-22:9) Dr. Becker could recall no specific discussion with Dr. Sapira about Ms. Hofstatter. He testified that the general type of discussion he would have with the preceding ER doctor (here Dr. Sapira) about a patient marked “discharged” was simply that she had been discharged. (Id. T21:19-24). Dr. Becker did not see Ms. Hofstatter at all until he was summoned by nursing staff at about 11:45 a.m. when Ms. Hofstatter had been found pulseless in her hospital bed. (Id. T13:5- 15:12). 6 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 10 of 19 Trans ID: LCV20233376894 Events from 7:00 a.m. to 11:45 a.m. on December 18, 2018 At about 8:45 a.m. Ms. Hofstatter’s daughter, Tina Giliberti called the ER and spoke with one of the nurses on duty. Ms. Giliberti, who was a constant participant in communications with her mother’s medical providers, told nursing staff that her mother should not be discharged until another troponin test was taken and that Ms. Hofstatter’s cardiologist should be contacted. Nursing staff contacted a doctor substituting for Ms. Hofstatter’s cardiologist. (Exh. F, Bates 4821). There is no indication that the substitute cardiologist saw Ms. Hofstatter, but he formulated a plan to check orthostatic signs and ordered a troponin test. (Id). Nurses’ mid-morning notes indicate that Ms. Hofstatter was “last seen normal” at 10:30 a.m. (Id). At that time she was noted to be agitated and unable to tolerate a blood pressure cuff, so a nurse measured her blood pressure manually, with a resultant reading of 90/38. (Id). Dr. Becker was notified of Ms. Hofstatter’s blood pressure reading of 10:30, but still made no appearance at her bedside (Exh. F, Bates 4818). At 10:45 a.m. Ms. Hofstatter was seen “moving in bed”. (Id.). At 11:15 a.m. a nurse found Ms. Hofstatter unresponsive and pulseless. (Exh. F, Bates 4812). ACLS was commenced and Ms. Hofstatter was placed on a monitor and defibrillator (Exh. F, Bates 4821). Resuscitation efforts were unsuccessful. Dr. Borczuk’s and Dr. Cohen’s Reports In his November 22, 2020 report Dr. Borczuk stated his opinion within a reasonable degree of certainty that both Drs. Sapira and Becker deviated from the accepted standard of care, and that those deviations were substantial factors leading to Ms. Hofstatter’s cardiac arrest and ultimate death. (Exh. C, Borczuk 11/22/20 report). 7 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 11 of 19 Trans ID: LCV20233376894 In that report Dr. Borczuk opined that, given Ms. Hofstatter’s multiple chronic medical problems and hypertension of unknown etiology, Dr. Sapira’s failure to engage with Ms. Hofstatter about the life-threatening risks of her refusal of care, failure to enlist Ms. Hofstatter’s daughter in a discussion of the life-threatening implications of refusal of care, or to otherwise intervene by way of a formal assessment of Ms. Hofstatter’s understanding of the risks of refusal constituted a deviation from the standard of care applicable to emergency medicine doctors. (Id., pp. 4-5). Dr. Borczuk explained that in most instances such an informed discussion leads to acceptance of treatment. (Id. p. 4). He further opined that upon change of shift and thereafter, Dr. Becker’s complete abnegation of any responsibility for Ms. Hofstatter, particularly after he had been notified of her actual active status by at least 10:00 a.m. on the morning of November 18, 2018 (Exh. F, Bates 4821) violated the applicable standard of care. These cumulative deviations from the accepted standard of care led to a vicious cycle, as Dr. Borczuk described it, of non-treatment for low blood pressure, leading to decreased cardiac perfusion and cardiac dysfunction, then cardiac arrest. (Exh. C, Borczuk November 22, 2020 Report, pp. 5-6). Defendants’ cardiology expert, Marc Cohen, MD, issued a report on January 26, 2023. (Exhibit B). In his report, Dr. Cohen expressed the opinions that when Ms. Hofstatter’s heart arrested, the “initial reading” on the monitor was asystole, a condition with a very poor prognosis. (Id., Cohen report, p. 3). Dr. Cohen’s report thus created an inference that nothing done or not done by the defendants would have made a difference. The glaring problems with that opinion is that an “arrest” is not the same as “asystole”, and “[t]hat the initial cardiac rhythm recorded once a monitor was attached was asystole, after the patient was found dead, unresponsive and pulseless, 45 minutes after she was ‘last seen 8 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 12 of 19 Trans ID: LCV20233376894 normal’ and 30 minutes after she was last seen ‘moving’ does not mean that the rhythm that caused the arrest was asystole.” Exhibit A, Schneller report, pp. 3-4, emphasis added). Dr. Cohen’s opinion thus raised the issue which took center stage during the remainder of the litigation: whether Ms. Hofstatter would more likely than not have been successfully resuscitated had she been on continuous monitoring. In response to Dr. Cohen’s report, Dr. Borczuk’s February 19, 2021 report specifically addressed the absence of “effective” and “proper” monitoring as well as the different ultimate outcome such monitoring would likely have produced. His report acknowledged that successful resuscitation is unlikely when a patient is asystole, but pointed out that Ms. Hofstatter was placed on a monitor only after she was found pulseless and unresponsive at 11:15 a.m. (Exh. D, Borczuk report, 2/19/21 report, p. 5). Dr. Borczuk wrote: “…the failure to properly address [Ms. Hofstatter’s] agitation, and to obtain the assistance of her daughter in doing so, precluded the ability to perform effective monitoring.” (Exh. D, 2/19/21 Borczuk report, p. 4) From my experience with patients who arrest either pre-hospital, in the ED or who pass away (do not resuscitate, do not intubate, comfort measure only situation in the ED, asystole is a terminal rhythm and not the initial rhythm. “…it is more likely than not that her initial rhythms was shockable, 5 and that if she had received proper treatment and monitoring prior to its degeneration into asystole, she would have been successfully resuscitated. Id., p. 5, emphasis added. 5 Dr. Borczuk’s opinion that Ms. Hofstatter’s initial rhythm was more likely that not shockable was later confirmed by the in depth analysis of the autopsy and medical records by plaintiff’s cardiology expert, Dr. Stanley Schneller. Dr. Schneller’s report stated: “The cardiac arrest was most likely a consequence of fatal ventricular fibrillation or ventricular tachycardia leading to fatal ventricular fibrillation in the context of acute myocardial ischemia…Had Mrs. Hofstatter’s cardiac rhythm been continuously monitored after she was in the ED, and had the onset of ventricular fibrillation been announced by an alarm alert, defibrillation would have been prompt and effective.” (Exh. A at 3, 4). 9 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 13 of 19 Trans ID: LCV20233376894 Dr. Borczuk’s Trial Testimony and Defense Counsel’s Objection At his videotaped deposition, plaintiff’s counsel asked the following question: “Q. Now Dr. Borczuk, in your review of the medical records that you reviewed in this case, did you see any evidence – you had mentioned vital signs. Did you see any many [sic] evidence of monitoring of Ms. Hofstatter’s vital signs?” (Exhibit E, DBT 32:2-7) At that point defense counsel immediately interjected an objection, clearly anticipating that plaintiff’s counsel was going to ask Dr. Borczuk whether failure to monitor Ms. Hofstatter was a deviation from the standard of care, and having ready at hand an argument that such testimony was not disclosed by Dr. Borczuk’s report. Without the words “standard of care” vis- a-vis monitoring even having been uttered defense counsel jumped in and asserted: “MS. SHERMAN: I’m not sure where this line of questioning is going and I don’t know what the doctor’s response is going to be, but can you point to me where in the doctor’s reports he discusses a precise deviation from the standard of care relative to the questions – the questions that I am assuming you are going to ask. I could be wrong.” (Exh. E, DBT 32:12-19, emphasis added) When plaintiff’s counsel pointed to references in Dr. Borczuk’s report specifically referring to monitoring, Ms. Sherman stated: “MS SHERMAN: “Right. I see that. I knew that’s what you were referring to. I made that assumption and I was right. … he has never offered the opinion that this failure of monitoring was a deviation from the standard of care. He includes that as a fact in his causation opinion referencing Dr. Cohen’s report but he never references that as a deviation of care.” (Id., DBT 32:21-33:15, emphasis added) Despite knowing precisely what questions plaintiff’s counsel was going to ask regarding monitoring as standard of care, Ms. Sherman then claimed surprise and prejudice to her clients. (Id., DBT 34:9-13). In contradiction, plaintiff’s counsel argued: “MR. MEYERS: Well, he says that “The failure to properly address her agitation and to obtain the assistance of her daughter in doing so, precluded the ability to perform effective monitoring…. 10 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 14 of 19 Trans ID: LCV20233376894 I think there is a clear implication that the action that prevented her from being properly monitored was a deviation from the accepted standard of care. I don’t think it’s fair for a physician [to have to] make that statement, you know, talk about deviation from the accepted standard of care every time he mentions an issue.” (Id., DBT 34:14-35:4) After counsel agreed that a court would have to decide the admissibility of evidence issue, and subject to defense counsel’s objection, Dr. Borczuk testified as follows: Q. Now, Dr. Borczuk, when you reviewed the materials that you mentioned earlier were you able to make a determination as to whether Ms. Hofstatter was placed on a heart monitor at any point during the time of her admission to the emergency room at Valley Hospital in the early morning of November 18, 2017 until the time of her death? A. That’s – to know whether she was on a monitor is a little hard, but I know that she was not on a monitor when they found her pulseless because they put a specific note that she went back on a monitor – that she went on a monitor and a defibrillator. So at the time that she had her arrest, she was not on a monitor. That’s – that’s the hard evidence that I saw in the chart. I know she had pulled off her 02 sat monitor but that’s different than, you know, electrodes on the chest. Q. Okay, Now, do you have an opinion, to a reasonable degree of medical certainty, regarding whether a patient with Rita Hofstatter’s existing medical conditions and her medical history, should have been placed on a heart monitor while she was a patient at the Valley Hospital emergency room on November 18, 2017? A. MS. SHERMAN: Objection. And I already placed my objection on the record so we don’t have to go off. BY MR. MEYERS: Q. You can answer the question, Doctor… A. … Definitely when she had a blood pressure of 89 at 3:40 a.m. That would have anybody put the patient on a monitor – that would have any patient go on a monitor, a cardiac monitor, whether it was a 40-year old, a 50-year old, a 60-year old. I don’t know if that answers your question. Q. Okay. Well, then would it be your opinion then, to a reasonable degree of medical certainty, that the failure to place her on a heart monitor at any time after 11 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 15 of 19 Trans ID: LCV20233376894 3:40 was a deviation, and assuming that it was never done because we understand that you are not certain at this point, but assuming that she was not placed at any time on a heart monitor, would it be your opinion that that would be a deviation from accepted standards of medical care for emergency room physicians? A. Yes. Q. And could you tell us who – which of the physicians who are Defendants in this case would have been responsible for the failure to place Ms. Hofstatter on a heart monitor? A. Both of these physicians were responsible clinicians during their respective time frame. Her blood pressure was low and that started during Dr. Sapira’s watch. So he is the doctor who would have ordered cardiac monitoring during that time period. On sign-out, if Dr. Becker got sign-out from Dr. Sapira and heard that her blood pressure had been low on multiple times, then – and if she wasn’t on a cardiac monitor at that time, then it was his obligation to order cardiac monitoring.” (Exh. E, DBT T39:5-41:23). ARGUMENT At the heart of plaintiff’s case is the opinion of plaintiff’s cardiology expert, Dr. Schneller that: “In the context of the clinical evidence of acute and pathological evidence of early myocardial ischemia in this case, unrecognized, unrecorded and untreated ventricular fibrillation is the most likely cause of death… The medical records indicate not only that Mrs. Hofstatter’s cardiac arrest in the ED of the Valley Hospital was unwitnessed but that the cardiac rhythm was monitored only after the patient was discovered to be unresponsive and pulseless, between 30 and 45 minutes after she was last noted to be alive. The likelihood of successful resuscitation from cardiac arrest due to ventricular arrhythmia in the context of myocardial ischemia depends on the rapidity of intervention following arrest. Early recognition of ventricular fibrillation followed by prompt defibrillation offers the best chance of successful resuscitation. Had Mrs. Hofstatter’s cardiac rhythm been continuously monitored while she was in the ED, and had the onset of ventricular fibrillation been announced by an alarm alert, defibrillation would have been prompt and 12 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 16 of 19 Trans ID: LCV20233376894 effective. In the absence of such monitoring, Mrs. Hofstatter was significantly deprived of the chance of surviving the fatal ventricular arrhythmia her acute myocardial ischemia caused.” (Exh. A, Schneller report, p. 4). Against the background of that pivotal issue in this litigation and in the context of Dr. Borczuk’s explicit opinion regarding the serial deviations in the care provided to Ms. Hofstatter, Dr. Borczuk’s reports make abundantly clear his opinion that heart monitoring was standard of care for Ms. Hofstatter during the hours preceding her death in the Valley Hospital Emergency Department. What other understanding could defendants’ have drawn from the statement of pg. 5 of Dr. Borczuk’s report, following his observation that she was monitored only after she was discovered pulseless at 11:15 a.m.’’, and that: “It is more likely than not that [Ms. Hofstatter’s] initial rhythm was shockable, and that if she had received proper treatment and monitoring prior to its degeneration into asystole, she would have been successfully resuscitated.” (Exh. D, Borczuk report, p. 5, emphasis added). The dictionary definition of “proper” is “of the required type”. Oxford English Dictionary, languages.oup.com/google-dictionary-en/h. As noted earlier in this brief, experts do not have to use legal, formulaic words to permit even a jury (much less sophisticated opposing counsel) to draw an inference that the expert has articulated facts supporting legal standards for fault or causation. See, e.g., Marpaka v. Patel, 2017 N.J.Super. Unpub. LEXIS 52, *4 (App.Div. 2017) (“it is not necessary for a testifying expert to use the ‘talismanic’ or ‘magical words’ represented by the phrase ‘reasonable degree of medical certainty’”); Schulz v. Celotex Corp., 942 F.2d 204, 208 (3d Cir. 1991) (“[c]are must be taken…to see that the incantation [‘reasonable degree of medical certainty’] does not become a semantic trap and the failure to voice it is not used as a basis for exclusion without analysis of the testimony itself.”) (applying federal law as not in conflict with New Jersey evidence law on this point); Green v. Weiner, 766 A.2d 492, 495-496 (Delaware Supreme Court, 2001) (holding that a medical 13 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 17 of 19 Trans ID: LCV20233376894 expert’s report which failed to articulate “deviation from standard of care” language nevertheless was sufficient to allow a jury to reasonably infer the standard of care; and stating that experts in medical malpractice cases are not required to “to couch their opinions in legal terms or to articulate the standard of care with a high degree of legal precision or with ‘magic words.”) Case law is also clear that while “an expert’s opinion may be confined to the opinions given in the report, as well as the facts and data given in the report,” nevertheless “the ‘logical predicates for and conclusions from statements made in the report are not foreclosed’”. Comes v. N.J. Transit Rail Operations, Inc., 2011 N.J.Super. Unpub. LEXIS 1138, *39 (App. Div. 2011), citing Congiusti v. Ingersoll Rand Co, Inc., 306 N.J.Super. 126, 131 (App. Div. 1997), in turn quoting from McCalla v. Harnischfeger Corp., 215 N.J.Super. 160 (App.Div.), certif. denied, 108 N.J. 219 (1987). Here Dr. Borczuk’s report disclosed his opinion that defendants had not provided Ms. Hofstatter with “proper” monitoring that would have detected a cardiac arrest in sufficient time to permit successful resuscitation. Dr. Borczuk’s testimony furnished the “logical predicate” for that opinion; namely Ms. Hofstatter’s plunging blood pressure on November 18, 2017, a fact amply supported in Dr. Borczuk’s opinion by the data provided by the hospital records and discussed in detail in Dr. Borczuk’s reports. (Exh. E, DBT36:16-37:11; Exh. C, 11/22/20 Borczuk report, p. 3). Further, even if the Court were to conclude that Dr. Borczuk’s February 19, 2021 report failed to adequately identify monitoring as “standard of care” in the circumstances presented, that would by no means end the inquiry. In Congiusti v. Ingersoll-Rand Co., Inc., 306 14 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 18 of 19 Trans ID: LCV20233376894 N.J.Super. 126, 131-132 (App.Div. 1997) the Appellate Division provided guidance for an inquiry that trial judges should make in such situations: “While a trial judge may in his or her discretion preclude testimony on a subject not covered in the written reports furnished by an adversary, in Ratner v. General Motors Corp., 241 N.J.Super. 197 (App.Div. 1990) we strongly urged the trial judge in the exercise of his discretion to ‘suspend the imposition of [t]he sanction [] [of exclusion]’ when certain factors were present. These were ‘(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.’ Ibid (quoting Westphal v. Guarino, 163 N.J.Super. 139, 145-46 (App.Div.), aff’d o.b., 78 N.J. 308 (1978)).” (bracketed omissions in the original) Here there was clearly no intent to deceive. Defendants’ objections do not even suggest such a motive on plaintiff’s part. As for the element of surprise, this case presents precisely the opposite. Without burdening the Court with repetition, the transcript quoted at length at pp. 10- 11 above reveals an adversary poised to object, armed with a pre-prepared argument that Dr. Borczuk’s report failed to identify failure to monitor as a deviation from standard of care, before plaintiff’s counsel had done anything other than say the word “monitoring” in the context of a question involving narrative of the hospital records. There was no surprise here. There is also no prejudice to defendants. At Dr. Borczuk’s deposition defendants chose not to question Dr. Borczuk about the statements in his reports about the absence of “effective” and “proper” monitoring. That defendants did not pursue that line of inquiry in Dr. Borczuk’s pre-trial deposition may have been the product of a strategy to try to preclude standard of care testimony related to monitoring, rather than to risk the possibility that deposition questions would permit Dr. Borczuk to flesh out his opinion. Further, should the Court have any concerns about prejudice, those concerns could be fully met by allowing defendants’ experts to supplement their reports with rebuttal prior to trial, now scheduled for February 20, 2024. 15 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 19 of 19 Trans ID: LCV20233376894 In sum, even if the Court disagrees with plaintiff’s firmly held view that Dr. Borczuk’s reports gave defendants adequate notice of his opinion that monitoring was standard of care, none of the criteria laid out in Congiusti support the drastic remedy of barring the critical testimony at issue here. CONCLUSION For the foregoing reasons, plaintiff respectfully urges the Court to grant plaintiff’s motion to permit Dr. Borczuk’s testimony regarding monitoring as standard of care to be presented to the jury. Respectfully submitted, LAW OFFICES OF G. MARTIN MEYERS, P.C. Attorney for Plaintiff By: /s/ G. Martin Meyers Dated: November 15, 2023 G. Martin Meyers, Esq. 16 BER-L-004765-19 11/15/2023 11:34:47 AM Pg 1 of 2 Trans ID: LCV20233376894 Susan S. Singer, Esq. (Atty. ID#005661977) G. Martin Meyers, Esq. (Atty. ID#271881971) LAW OFFICES OF G. MARTIN MEYERS, P.C. 35 West Main Street, Suite 106 Denville, New Jersey 07834 Telephone: (973) 625-0838 Telefax: (973) 625-5350 gmm@gmeyerslaw.com Counsel for Plaintiffs : TINA B. GILIBERTI, Individually and : SUPERIOR COURT OF NEW JERSEY as Executrix of the Estate of RITA S. : LAW DIVISION – BERGEN COUNTY HOFSTATTER, Deceased, :