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New Jersey Medical Malpractice Blog

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


Supreme Court Holds Hospital Facility Only Entitled to Limited Charitable Immunity, but not Absolute Immunity for Fall Down Injury on Premises – Kuchera v. Jersey Shore Family Health Center, 221 N.J. 239 (March 31, 2015)

By Attorney Michael B. Zerres on January 27, 2016

This is a premises liability case wherein Plaintiff slipped and fell on a wet spot on a floor in an outpatient health care facility, Jersey Shore Family Health Center (Family Health Center), owned and operated by a nonprofit hospital. Summary judgment was granted in favor of the hospital pursuant to N.J.S.A. 2A:53A-7, which grants immunity from negligence actions to nonprofit entities organized exclusively for charitable, educational, or religious purposes. The Appellate Division affirmed, holding that “the parent-hospital’s provision of charity care and medical education rendered the hospital a hybrid nonprofit institution organized exclusively for charitable and educational purposes . . .” and was, therefore, immune from liability pursuant to N.J.S.A. 2A:53A-7 to -11. Read the rest »

Posted in: Medical Malpractice


No Cause Verdict Reversed Where Trial Court Improperly Excluded Defendant Surgeon’s Statements Against Self Interest – Parker v. Poole A-1874-12T$ (Decided March 2, 2015)

By Attorney Michael B. Zerres on January 19, 2016

The Plaintiff, after a biopsy of a tumor, was diagnosed with invasive adenocarcinoma of the colon, and was referred to the defendant surgeon to undergo an operation to remove the tumor. A transverse colon resection and open anastomosis was performed. Three days later, the plaintiff developed a dehiscence. The next day, the defendant performed a second surgery to investigate whether  there was an anastomotic leak. Defendant testified “[w]e never saw a hole, we never saw a perforation,” yet he decided to remove the anastomosis, explaining that the anastomosis was not perfect.  Approximately two days later, Mr. Parker had a cataclysmic rapid demise caused by sepsis. The parties disputed the source of the sepsis at trial.  Central to the dispute was the defendant’s deposition testimony wherein he stated, “I have to assume [the sepsis] was related to the anastomotic leak.” Read the rest »

Posted in: Medical Malpractice


Case against orthodontist dismissed with prejudice claim for failure to timely serve an appropriate Affidavit of Merit; Trial Court decision upheld –Meehan v. Antonellis, A-0140-13T4 decided August 21, 2014 (Appellate Div.)

By Attorney Michael B. Zerres on January 16, 2016

Plaintiff’s complaint alleged that Dr. Antonellis fitted plaintiff with a “positioner” for use while sleeping, to reduce the symptoms of sleep apnea. Dr. Antonellis assured plaintiff that the “positioner” would not cause his teeth to shift. However, his teeth did shift, causing him to incur more dental work, including a crown, and symptoms such as chronic muscle pain and headaches.

Read the rest »

Posted in: Medical Malpractice


Infant plaintiff escapes with prejudice dismissal of malpractice claim for failing to timely serve an Affidavit of Merit – Cooper v. Russo, ESX-L-1507-14, decided Sept. 19, 2014 (Law Div.)

By Attorney Michael B. Zerres on January 7, 2016

In this medical malpractice action, the infant plaintiff’s parents filed a lawsuit on behalf of themselves and their minor son. As the plaintiffs’ counsel could not secure a timely Affidavit of Merit, he sought a voluntary dismissal of the child’s claim without prejudice and dismissal of the parents claim with prejudice. After a “Ferreira” conference, the Court granted plaintiffs’ dismissal requests. The defendants sought reconsideration of the Court’s Order, arguing that the ruling created an impermissible exception to the Affidavit of Merit statute, in that it allowed the infant plaintiff the opportunity to serve an Affidavit outside of the statutory period. Read the rest »

Posted in: Medical Malpractice


Defendant’s permitted to have plaintiff’s treating surgeon testify as to cause of decedent’s injuries – Caratozzolo v. Davis, et. als. Docket No. A-4773-11T3

By Attorney Michael B. Zerres on July 14, 2015

This medical malpractice claim arises from neurologic injuries plaintiff sustained after defendants failed to timely diagnose and treat his aortic dissection. At trial the jury found defendants did not deviate from accepted standards of care, except for a third year resident and a cardiac sonographer. However, as to those defendants who were negligent, the jury determined their deviations did not increase the risk of harm, and, thus a verdict of no cause for action was returned. . On appeal, plaintiff argued that the Trial Court erred in denying plaintiff’s motion to limit the testimony of plaintiff’s treating surgeon, Dr. Krause because he provided expert testimony as to causation, although he was not named as a trial expert. Read the rest »

Posted in: Medical Malpractice


Expert Testimony Not Always Needed to Support An Informed Consent Claim: Sharon Parker v. Joseph Ortiz, M.D. A-5868-11T1

By Attorney Michael B. Zerres on July 13, 2015

This medical malpractice action arises from an iridotomy performed on the plaintiff’s left eye, which resulted in post-operative complications. The Trial Court granted defendants motion for partial summary judgment on plaintiff’s informed consent claim, asserting plaintiff’s failure to provide expert medical evidence that the medical community knew of the risk of her specific injury. After hearing conflicting testimony regarding plaintiff’s negligence claim, the jury returned a verdict in favor of the defendants. Plaintiff moved for a new trial claiming the dismissal of her informed consent claim was in error, and the jury verdict was against the weight of the evidence. The motion for a new trial was denied. Read the rest »

Posted in: Medical Malpractice


Affidavit of Merit from a Certified Expert: Sitsofe Awuku v. Shelley Jones-Dillon, M.D.

By Attorney Michael B. Zerres on March 17, 2015

Sitsofe Awuku v. Shelley Jones-Dillon, M.D. Docket No.A-1366-13T1, decided July 31, 2014

Plaintiff brought this medical malpractice action after suffering complications from treatment of an acute stroke after presenting the ER at Newark Beth Israel Medical Center. Plaintiff’s claim against one of the named defendants, who was board certified in internal medicine, was dismissed because plaintiff failed to serve an Affidavit of Merit from a similarly certified expert.

On appeal, plaintiff’s claim was reinstated after the Appellate Division found that plaintiff’s Affidavit of Merit, from an ER physician, was appropriate because the defendant in question (Dr. Jones-Dillon) was not acting as an internist at the time care was rendered, but rather as an emergency medicine specialist. Read the rest »

Posted in: Medical Malpractice


Komlodi Part 6: “Substantial factor” vs. “but-for” Charge on Causation

By Attorney Michael B. Zerres on November 13, 2014

Further Analysis of Scalfidi Charge in Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3, Part 4, Part 5

Here, the Court charged the jury on both the “substantial factor” and “but for” instructions on proximate cause. The “but-for” causation charge was given inadvertently by the Court and was done so without objection from either party.  A “but-for” charge is appropriate when there is only one potential cause of the harm or injury. 

In contrast, the “substantial factor” instruction is given when there are concurrent causes capable of producing the harm or injury.  A tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries, even where there are other intervening causes which were foreseeable. Read the rest »

Posted in: Medical Malpractice


Komlodi Part 5: Foreseeability and Intervening/Superseding Causes

By Attorney Michael B. Zerres on November 6, 2014

Further Analysis of Scalfidi Charge in Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3, Part 4

The Trial Court correctly elected to charge the jury on both intervening/superseding causation and general foreseeability. The intervening/superseding causation charge attempts to focus the jury’s attention on the different arguments of the parties. Thus, while a patient’s deliberate act is foreseeable, and not a superseding cause, that does not preclude the need to instruct the jury on intervening/superseding causes.

The concepts of foreseeability and intervening/superseding causation are related and juries need to be educated on both. Foreseeability is a constituent part of proximate cause and an act is foreseeable when a reasonably prudent, similarly situated person would anticipate a risk that his/her negligent conduct would cause injury or harm to another. Read the rest »

Posted in: Medical Malpractice


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