This medical malpractice action arose out of alleged negligent treatment of plaintiff’s decedent while admitted to St. Barnabas Hospital. Both defendant physician and plaintiff’s proffered expert were board certified in Internal Medicine and the subspecialty of Cardiovascular Disease. However, plaintiff’s expert was not board certified in defendant Dr. Nicholas Tullo’s second subspecialty, “Clinical Cardiac Electrophysiology.” Dr. Tullo moved for Summary Judgment, seeking dismissal of the Complaint, due to plaintiff’s failure to provide expert testimony rendered by an appropriately-qualified physician. The issue presented in defendant’s Summary Judgment motion was whether, in a medical malpractice action, an additional subspecialty certification held by a defendant doctor bars the use and testimony of a plaintiff’s expert who otherwise shares the defendant doctor’s professional credentials, but lacks certification in the additional subspecialty. Read the rest »
Plaintiff brought this medical malpractice action as a result of complications suffered following a hysterectomy. Plaintiff attempted to amend her Complaint to include an additional defendant physician, Daniel H. Tobias, M.D. The trial court entered an interlocutory Order denying plaintiff’s attempt to amend her Complaint, finding that the two-year statute of limitations had expired and plaintiff had not demonstrated at an evidentiary hearing that principles of equitable tolling justified an extension of the two-year statute of limitations.
Plaintiffs were then granted leave to appeal the trial court’s order. The Appellate Division, in a decision dated November 27, 2013, reversed the trial court’s order, finding that under the distinctive circumstances of the case, principles of equitable tolling warrant the inclusion of Doctor Tobias as a co-defendant. The Court found that these circumstances included: faulty medical recordkeeping that omitted Dr. Tobias from the operative report as one of the doctors who performed surgery on plaintiff; the lead surgeon’s failure to disclose Dr. Tobias’ involvement to the plaintiff when she consulted him about post-surgical complications; and incomplete, potentially misleading interrogatory responses by co-defendants which masked Dr. Tobias’ involvement. As plaintiff and her attorneys acted reasonably under the circumstances, and had scant reason to believe that another surgeon, Dr. Tobias, participated in the operation, equitable principles justified tolling the two-year statute of limitations. Read the rest »
This action arose out of plaintiff’s allegations that defendant physician negligently disclosed information regarding plaintiff’s use of certain medication to plaintiff’s wife, which enabled her to bring charges of sexual infidelity against him. Plaintiff sought compensatory and punitive damages from the defendant physician for breach of confidentiality, negligence, and negligence per se. Plaintiff further moved for an Order waiving the statutory requirement of an Affidavit of Merit under the common knowledge exception. Read the rest »
Two juvenile plaintiffs instituted an action against a group of psychologists alleging injuries as a result of being held in isolation for significant periods of time while in the custody of the New Jersey Juvenile Justice Commission. At issue was whether the Court should have granted the medical defendants’ motion to dismiss the Complaint as plaintiffs did not serve Affidavits of Merit in accordance with N.J.S.A. 2A:53A-26 to -29. Read the rest »
In this case, the plaintiff went to the hospital for surgery to correct complications related to two prior surgeries. During the post-operative period, Dr. Mehta, the defendant attending physician ordered or allowed the administration of Lopressor, a beta blocker designed to reduce a fast heart rate. Plaintiff went into cardiac arrest, causing her to end up in a permanent vegetative state. It was alleged that Lopressor should not have been given under the circumstances, and, that it caused plaintiff’s heart rate to drop too low to the point that she went into cardiac arrest.
Originally, the plaintiff sued two other doctors, the hospital and the nurse who administered the Lopressor. She settled with all of those defendants prior to trial in the aggregate sum of $2,725,000. The remaining defendant (Mehta) claimed that he should have been entitled to a credit of $2,725,000 in the event a verdict was returned against him, such that he would only be responsible for any damage awarded in excess of the settlement amount. The Trial Court, in a September 10, 2013 decision approved for publication, found that in order for a defendant to be entitled to a credit, the jury must be provided sufficient information to be able to determine the actual liability of the settling co-defendants. Thus, a jury can only assess the liability of a settling co-defendant if there is evidence, in the form of expert testimony, potentially implicating the settling defendants. Read the rest »
In this malpractice action against three doctors arising out of the wrongful death of a father of minor children following emergency room care at Trinitas Regional Medical Center, the plaintiff timely commenced the action within two years of the death of the patient. Almost two years later, plaintiff filed a first amended Complaint adding an insurance company as a defendant. Two months after that the plaintiff filed a second amended Complaint adding two medical treatment facilities as defendants. Finally, one month later, which was nearly four years after decedent’s death, plaintiff was granted leave to add Trinitas Regional Medical Center as a defendant. Trinitas subsequently filed a motion to dismiss plaintiff’s complaint as time-barred under by the statute of limitations. (N.J.S.A. 2A:31-3) This motion was denied by the Trial Court, and, Trinitas was granted leave to appeal. Read the rest »
This was a medical malpractice action against medical brought as a result of alleged negligent treatment of tuberculosis meningitis. Prior to trial, the plaintiff served an Affidavit of Merit prepared by a Dr. Ackley, who was board certified in internal medicine. However, one of the defendants, Dr. Ahn, was board certified in family medicine. Dr. Ahn’s counsel did not pose any objection to the sufficiency of Dr. Ackley’s Affidavit of Merit, and moreover, counsel for Dr. Ahn provided plaintiff with a signed waiver acknowledging the sufficiency of the Affidavit.
At trial, no pretrial motion was filed to bar Dr. Ackley’s expert testimony under N.J.S.A. 2A:53A-41 (the Patients First Act.) As the case proceeded, plaintiff’s counsel notified the Court that they would be calling Dr. Ackley to testify the following day. Defense counsel for Dr. Ahn stated that he would be filing a motion to bar Dr. Ackley’s testimony as to Dr. Ahn since Dr. Ackley was not a family practitioner.. Plaintiff’s counsel objected to the delayed objection to Ackely’s qualifications, noting that the case had been in litigation for five years. The Court ordered a hearing pursuant to N.J.R.E. 104 to determine if Dr. Ackley could testify. The Court found that under the Patients First Act, Dr. Ackley’s testimony was barred because he was not board certified in the same specialty or subspecialty as Dr. Ahn. Therefore, because plaintiff had no other expert to offer standard of care testimony as to medical defendant Dr. Ahn, the Trial Court granted Dr. Ahn’s motion to dismiss plaintiff’s complaint. Read the rest »
Plaintiff brought this medical malpractice alleging that defendants, Drs. Mynster and Sehgal, provided negligent care by failing to refer the patient to a facility with a hyperbaric chamber for appropriate treatment of carbon monoxide poisoning. Dr. Mynster was board certified in emergency medicine and Dr. Seghal was board certified in family medicine. Plaintiff served an affidavit of merit signed by expert witness, Dr. Lindell K. Weaver., who was not board certified in either emergency medicine or family medicine, but instead, was board certified in preventive medicine with subspecialty certifications in undersea and hyperbaric medicine, and, who had a clinical practice in hyperbaric medicine and critical care, which included evaluating and managing patients with acute carbon monoxide poisoning. Read the rest »
The mother of a deceased patient brought this medical malpractice action against the hospital and emergency room physician, alleging that defendants had negligently failed to detect and treat an infection, causing patient to become paralyzed and die.
In preparation for trial, plaintiff consulted with and prepared to call at the trial five medical expert witnesses, two of whom were expected to testify on the standard of care in emergency medicine. However, the trial court had informally granted a defense pretrial motion that restricted each side to one expert witness on any subject or specialty relevant to the case. At this time, plaintiff’s attorney accepted the courts ruling and did not formally object to the limitation on the number of experts. Read the rest »
In this medical malpractice action the Appellate Court confirmed a jury finding that defendant physician, Dr. Kaul, M.D., deviated from the standard of care when he performed spine surgery upon the plaintiff. Furthermore, the Appellate court also determined that the plaintiff’s treating physician could provide ‘causation’ testimony without having to be qualified in the same manner as a designated expert witness.
The Appellate Court, at 2013 N.J. Super. Unpub. LEXIS 469 (Decided March 1, 2013), rejected the defendant’s appeal, in which the defense claimed that the plaintiff’s treating neurosurgeon, Dr. Steinberger, was improperly permitted to testify that the plaintiff required surgery because “something” happened during the prior fusion surgery performed by defendant, Dr. Kaul. Read the rest »