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New Jersey Medical Malpractice Blog

Settling Defendant Charge Need Not Always Be Given – Hernandez v. Chekenian, No. L-11038 14, 2016 WL 6024008, (N.J. Super. Ct. Law Div. July 15, 2016).

By Attorney Michael B. Zerres on January 18, 2017

In a recently published decision a Trial Court addressed whether it is appropriate to give a settling defendant charge to a jury when the party in question settled prior to trial, and, was present during trial.

The matter involved a three car motor vehicle accident, in which all cars were one behind the other, in the same lane. Plaintiff was the passenger of the second (middle) car. Defendant driver of the second (middle) car settled for his policy limits prior to trial. Counsel for defendant requested that the court give the jury the settling co-defendant charge(s) regarding “Settling Defendants” and “Instructions to Jury In Cases In Which One Or More Defendants Have Settled With The Plaintiff.” Plaintiff opposed this request, the Court agreed, and no such instruction was given.

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Posted in: Medical Malpractice


Vascular Surgeon Not Qualified to Testify Against Family Practitioner Who Performed a Vascular Procedure – Afonso v. Bejjani – A-1623-15T4

By Attorney Michael B. Zerres on January 13, 2017

In this matter, decided on November 29, 2016, the Appellate Division ruled on yet another malpractice case involving the application of the New Jersey Medical Care Access and Responsibility and Patients First Act (“Patients First Act”), set forth in N.J.S.A. 2A:53A-41, and, held that the plaintiff’s proposed expert testimony was correctly excluded because said expert was not a family medicine specialist like the defendant. The case arises when two family practitioners, Drs. Ricci and Bejjani, both co-defendants, performed a phlebectomy upon plaintiff. A phlebectomy is the removal of varicose veins through small puncture sited in the skin using a surgical hook. The phlebectomy was performed on both of the plaintiff’s leg, each physician taking one leg. The result included an emergency room visit by the patient, with multiple infected wounds.

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Posted in: Medical Malpractice


Federally Qualified Health Center entitled to New Jersey’s to Cap on Charitable Immunity for Hospitals – S.M. v. United States of America – CA No. 13-5702, USDC – DNJ

By Attorney Michael B. Zerres on January 12, 2017

This is a medical malpractice case where the plaintiff alleged that employees of CompleteCare Health Network dba Vineland Women’s Health Center, a federally qualified health center, deviated from the standard of care when they failed to timely offer plaintiff proper prenatal screening for Down Syndrome, thereby depriving plaintiff of necessary information to make a fully informed decision as to whether or not to continue her pregnancy. S.M. was born with Down Syndrome.

One of the issues before the Court was whether CompleteCare qualified as a charitable organization under the New Jersey Charitable Immunity Act (“NJCIA”), N.J. Stat. Ann. § 2A:53A-7(a), and, was, therefore, absolutely or partially immune from liability.

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Posted in: Medical Malpractice


Michael B. Zerres obtains reversal of lower Court ruling that NJ malpractice defendant was entitled to pro tanto credit for an out of state settlement obtained by plaintiff – Kranz v. Schuss – A-4918-13T1; decided August 31, 2016

By Attorney Michael B. Zerres on September 23, 2016

In a recent published Appellate Division decision, Blume Forte partner, Michael B. Zerres, obtained a reversal of a lower Court decision holding that a medical malpractice defendant was entitled to a pro tanto credit for the full amount of an out of state settlement plaintiff had obtained.

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Posted in: Medical Malpractice


Plaintiff permitted to obtain new Affidavit of Merit when it was unknown that original expert had retired – Castello v. Wohler, 2016 WL 3369247 (N.J. App. June 20, 2016),

By Attorney Michael B. Zerres on September 12, 2016

This is a medical malpractice matter where the plaintiff’s counsel timely served an Affidavit of Merit (“AOM”) and reasonably relied on the AOM and the expert’s curriculum vitae, which erroneously stated that the witness is currently practicing medicine.  Plaintiff’s counsel later discovers that error, through no fault of his own, after the 120 day deadline, set forth in N.J.S.A. §§ 2A:53A-26 to 2A:53A-29, expired.  Under those circumstances, the Appellate Division held that exceptional circumstances existed permitting a discovery extension so that plaintiff has sufficient time to hire a different expert witness who is qualified under the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. §§ 2A:53A-37 to 2A:53A-42 to issue a new AOM, and to serve a corresponding expert report. 

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Posted in: Medical Malpractice


Appellate Division affirms that a patient’s treating doctor may testify as to the cause of an injury – Rothman v. Cole – A-1838-14T1 – decided July 21, 2016

By Attorney Michael B. Zerres on September 9, 2016

This is a medical malpractice matter where the defendant is appealing from a final judgment following a jury trial.  Plaintiff, a 64 year old woman who underwent a heart pacemaker implant surgery performed by defendant in 2008, was later advised in 2009 by her long term treating physician and cardiologist, Dr. Amendo, that the pacemaker wire had been malpositioned after he had conducted a nuclear stress test.  Subsequent testing by a Dr. Leon revealed that the lead wire for plaintiff’s pacemaker was inserted through plaintiff’s subclavian artery and into the left ventricle of her heart, rather than the right ventricle as defendant had understood he had done, and that a ostial occlusion of the left internal mammary artery (“LIMA”) caused an obstruction, which required the insertion of a stent. 

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Posted in: Medical Malpractice


Minor plaintiff cannot dismiss a claim without prejudice if Affidavit of Merit not timely filed – A.T. et al. v. Cohen et al., decided April 27, 2016

By Attorney Michael B. Zerres on June 10, 2016

In this medical malpractice suit, minor plaintiff’s mother filed this suit individually, and, on behalf of her daughter asserting medical malpractice claims. The Appellate Court considers whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit within the required time frame. Ultimately, it concluded that cannot use Rule 4:37-1(b) to avoid the time frames set forth in the “Affidavit of Merit” statute regardless of whether or not the statute of limitations had expired. Read the rest »

Posted in: Medical Malpractice


Testimony of plaintiff’s expert may be used to establish “fault” of settling defendant for purposes of “Young v. Latta” apportionment – Gatesy v. Perotte and Elliot, et al., decided April 7, 2016 (A-0360-13T3)

By Attorney Michael B. Zerres on June 2, 2016

In this medical malpractice action, the plaintiff experienced pain in his neck and difficulty breathing after engaging in playful wrestling the previous evening. The attending emergency physician, Dr. Perotte, applied a hard cervical collar and ordered an x-ray of plaintiff’s cervical spine. A CT scan was then performed, which revealed that plaintiff was experiencing a spinal cord compression, and “plaintiff had suffered a stable neck fracture with locked facets in the same area of his neck which contributed to the compression.” Dr. Perotte chose not to further immobilize plaintiff’s neck. Plaintiff later complained of numbness in both upper limbs but the nurse failed to update his chart or inform Dr. Perotte. He was also administratively admitted into the intensive care unit (ICU) but physically remained in the emergency department, which was no longer permitted to provide medical care to plaintiff except in the case of a life-threatening emergency. When the neurosurgeon started to initiate treatment, he was already suffering clinical paralysis and experiencing loss of normal neurological function, which had steadily declined since he was brought to the hospital. Read the rest »

Posted in: Medical Malpractice


Appellate Court Affirms that Plaintiff May Read in Testimony of Unavailable Treating Physicians – Sheets V. Siegler (Decided March 27, 2015) (A-1836-11T4)

By Attorney Michael B. Zerres on March 16, 2016

In this dental malpractice case, the plaintiff experienced excruciating pain following a wisdom tooth extraction performed by the defendant dentist. She later developed numbness in her tongue and shooting pain from the back of her jaw, causing her difficulty speaking and swallowing. The patient, thereafter, underwent surgery to repair an apparent injury to her right lingual nerve. However, her difficulties remained, and she began receiving steroid injections to treat what was diagnosed as a neuroma of the right lingual nerve. Read the rest »

Posted in: Medical Malpractice


Medical Malpractice Dismissal Upheld by Appellate Division for Failure to Comply with Affidavit of Merit Statute – Lang v. Morristown Hospital A-0876-13T1 (decided February 3, 2016)

By Attorney Michael B. Zerres on February 9, 2016

This case involved a 17 year old boy, with a history of HADD and autism, who, in September 2011, was admitted to Chilton Memorial Hospital with renal failure and septic shock. He underwent emergency colon surgery, but, unfortunately, died a week later from a pulmonary embolism.

His family sued a number of practitioners, including the boy’s psychiatrist, and the treating pediatric critical care, pediatric nephrology and pediatric surgical providers. An Affidavit of Merit was served by a physician who practiced general surgery, had not practiced since 2006 and who had not taught medicine since 2011. The Trial Court dismissed the action finding that the plaintiff had not served appropriate Affidavits of Merit.

In upholding the Trial Court dismissal, the Appellate Court held that: a. a general surgeon cannot opine as to the standard of care of a psychiatrist, pediatric critical care doctor, pediatric neurologist or a pediatric surgeon; b. plaintiff’s expert was not actively engaged in the clinical practice, nor an instructor in medicine at an accredited institution in 2011; c. plaintiff’s counsel failed to timely file a motion under N.J.S.A. 2A:53A-41, seeking a ‘waiver’ of the Affidavit of Merit statute; and, d. even if such a motion had been timely made, has not made a showing that a ‘good faith effort’ was made to secure Affidavits from experts in the appropriate fields.

Posted in: Medical Malpractice


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