Hayser v. Parker, DOCKET NO. A-5531-17T1

CourtSuperior Court of New Jersey
Writing for the CourtPER CURIAM
PartiesLAUREN GILL HAYSER and JOHN HAYSER, Plaintiffs-Appellants/Cross-Respondents, v. GLENN PARKER, M.D., JEFFREY LIN, M.D., ATLANTIC SURGICAL GROUP, P.A., KAREN BURKE, R.N., TRISHA NOVELLO, R.N., PATRICIA SPINA, R.N., ERIN CONROY, R.N., SOONMI LIN, R.N., and OCEAN MEDICAL CENTER, Defendants-Respondents, and THOMAS LAKE, III, M.D., Defendant-Respondent/Cross-Appellant.
Decision Date03 February 2021
Docket NumberDOCKET NO. A-5531-17T1

LAUREN GILL HAYSER and JOHN HAYSER, Plaintiffs-Appellants/Cross-Respondents,
and OCEAN MEDICAL CENTER, Defendants-Respondents,
THOMAS LAKE, III, M.D., Defendant-Respondent/Cross-Appellant.

DOCKET NO. A-5531-17T1


Argued November 17, 2020
February 3, 2021


This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

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Before Judges Fisher, Gilson, and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2926-14.

Jonathan H. Lomurro argued the cause for appellants/cross-respondents (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Jonathan H. Lomurro, of counsel; Christina Vassiliou Harvey, of counsel and on the briefs; Kristen M. Gaffey and Alan J. Weinberg, on the brief).

Kenneth M. Brown argued the cause for respondents Glenn Parker, M.D., and Atlantic Surgical Group, PA (Weber Gallagher, attorneys; Kenneth M. Brown, of counsel and on the brief; Peter Espey, on the brief).

Sharon K. Galpern argued the cause for respondent Jeffrey Lin, M.D. (Stahl & DeLaurentis, PC, attorneys; Sharon K. Galpern, on the brief).

Michael E. McGann argued the cause for respondents Karen Burke, R.N., Trisha Novello, R.N., Patrice Spina, R.N., and Ocean Medical Center (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Michael E. McGann, of counsel and on the brief; Anthony W. Liberatore, on the brief).

Herbert Kruttchnitt III argued the cause for respondents Erin Conroy, R.N., and Soonmi Lim, R.N.1 (Dughi, Hewit & Domalewski, attorneys; Herbert Kruttchnitt III, of counsel and on the brief; Shawna K. Bishop, on the brief).

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Thomas J. Heavey argued the cause for respondent/cross-appellant Thomas Lake, III, M.D. (Grossman, Heavey & Halpin, PC, attorneys; Thomas J. Heavey, of counsel and on the briefs; Morgan Rose Montano, on the briefs).


After having surgery for the removal of a cancerous tumor, Lauren Gill Hayser (plaintiff) experienced post-surgical complications stemming from a bowel leak that caused an infection. Plaintiff and her husband John Hayser (collectively plaintiffs) assert that defendants were negligent in their post-surgical treatment of her, specifically in their purported failure to monitor, investigate, or report post-operative signs of infection. After an eleven-day trial, a jury found no deviation from the accepted standards of practice. Plaintiffs appeal that no-cause judgment and the trial judge's subsequent denial of their motion for a new trial, arguing that the verdict was against the weight of the evidence and that they were deprived of a fair trial by errors made in the jury-selection process and during the trial. Defendant Thomas Lake III, M.D., cross-appeals the trial judge's denial of his motion for involuntary dismissal under Rule 4:37-2(b). For the reasons that follow, we affirm.

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On May 28, 2013, Dr. Lake, a colorectal surgeon with defendant Atlantic Surgical Group, P.A. (Atlantic Surgical Group) operated on plaintiff at Ocean Medical Center, performing a bowel resection to remove a malignant tumor. After surgery, plaintiff was placed in the post-anesthesia care unit. Dr. Lake wrote a post-operative order detailing the care to be provided to plaintiff by the nursing staff, including standing order no. 48, which directed staff to call a surgeon if a patient was tachycardic, meaning had a heart rate that exceeded 120 beats per minute. Hospital protocol also required a nurse to notify a physician if a post-operative patient's white blood count or pulse rate became elevated. Later that day, plaintiff was transferred to a medical/surgical floor in the hospital. Over the next two days, plaintiff continued to improve and showed no signs of a bowel leak or infection.

Defendant Soonmi Lim, R.N., cared for plaintiff on the evening of May 30, 2013. Lim did not contact a surgeon when plaintiff's heart rate reached 122 at 8:00 p.m.; when her heart rate was noted at 10:43 p.m. on her chart it was 98. Defendant Erin Conroy, R.N., began to care for plaintiff the following morning. Lab reports from blood taken the prior evening showed that plaintiff's white

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blood count had increased to 15,700 per microliter of blood. A normal range is 4,500 to 11,000 per microliter of blood.

On May 31, 2013, during morning rounds, defendant Jeffrey Lin, M.D., a general surgeon with Atlantic Surgical Group, ordered that plaintiff's cardiac monitor be discontinued. Nursing staff would continue to check her vital signs every four hours. Dr. Lin testified that an elevated heart rate of 122 and a white blood count of 15,700 did not indicate a bowel leak because plaintiff was making clinical progress, did not look sick, was healing, was not tired or confused, and had normal kidney function. He stated that even if he had known about plaintiff's tachycardic episode, he would not have ordered a CT scan to determine if she had a bowel leak based on that single number, noting that an elevated heart rate can be caused by pain, exertion, and anxiety as well as infection.

At 4:00 p.m. on May 31, 2013, plaintiff's heart rate increased to 132. Nurse Conroy did not contact the surgeons regarding the elevated heart rate or white blood count and did not include the tachycardic episode in her notes. That evening, while nurse Lim cared for her, plaintiff had several sustained tachycardic episodes. Nurse Lim did not call the surgeons or document those episodes in her notes, but the information was available on computerized

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hospital records. By 4:00 a.m. on June 1, 2013, plaintiff's heart rate had fallen to ninety-seven, which was within the normal range.

During that day, while defendant Trisha Novello, R.N., cared for her, plaintiff's heart rate was normal, she reported a pain level of zero, and she did not have a fever, but lab reports from blood taken the prior evening indicated that her white blood count had increased to 22,000 per microliter of blood. During rounds that afternoon defendant Glenn Parker, M.D., a colorectal surgeon with Atlantic Surgical Group, examined plaintiff. He reported in his progress notes that she was awake and alert and had normal vital signs, including a pulse of ninety-six, her incision was healing appropriately, and her ostomy was functioning properly. He also noted that her white blood count was 22,000 per microliter of blood. He recommended that she be discharged that day, wrote a discharge order, gave her a prescription for Percocet for pain, and ordered that she have follow-up care with visiting nurses. She was discharged that afternoon "in stable condition." Defendant nurses Novello, Patricia Spina, R.N., and Karen Burke, R.N., assisted in the discharge. Nurse Burke noted that at the time of discharge plaintiff had no complaints of pain and was alert, oriented, and excited to go home. None of the nurses alerted the doctors to plaintiff's elevated white blood count.

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On June 3, 2013, plaintiff called the Atlantic Surgical Group and spoke with Dr. Lake. She asked for a different pain medication because Percocet was not agreeing with her. She testified that she called also because her legs were swollen, but written notes from the call do not reference any report of swelling in her legs or increased pain. The visiting nurse who saw plaintiff that day did not document any increased pain or swelling of her legs.

On June 6, 2013, plaintiff called again and spoke with Dr. Parker. She asked for a prescription for antibiotics because a malodorous fluid was draining from her incision line. Dr. Parker told her that he would not prescribe an antibiotic over the telephone and advised her either to come to the office or to go to the emergency room. She did not follow that advice. Later that day, when her parents attempted to assist her out of bed, fluid sprayed out of her abdomen. Her mother called an ambulance, and plaintiff was taken to the emergency room at Jersey Shore University Medical Center.

When she arrived at the emergency room, plaintiff was in septic shock, feculent discharge was coming from her incision, her abdomen was distended and tender, her white blood count was 26,000 per microliter of blood, she was tachycardic, and her blood pressure was low. Dr. Parker performed emergency surgery and found where the bowel had been resected a 1.5 cm hole and an

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anastomotic leak, with fecal matter flowing into her peritoneal cavity. He removed the rest of her colon because it was ischemic, took out the colostomy, and created a new ileostomy on the other side of her abdomen. Plaintiff remained intubated and sedated for a week, was discharged eighteen days after the surgery, and stayed at a rehabilitation facility for eight days.

Plaintiffs filed a complaint alleging medical negligence against plaintiff's treating physicians, Drs. Lake, Lin, and Parker, and their medical group, Atlantic Surgical Group, and against her treating nurses Burke, Novello, Spina, Conroy, and Lim, and Ocean Medical Center. Plaintiffs' colorectal surgical expert opined that each of the doctors had deviated from the accepted standard of practice: (i) Dr. Lin, by failing to investigate an intra-abdominal cause of plaintiff's elevated white blood count and failing to order a CT scan to determine if she had an abdominal leak; (ii) Dr. Parker, by discharging plaintiff when her white blood count was almost twice the normal range; and (iii) Dr. Lake, by failing to recognize that plaintiff's report of increased pain and swollen legs was a possible sign of abdominal infection. Plaintiffs' nursing expert, Lisa Homa,...

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