According to an article posted on NJ.com, a 19-year-old woman from Brick, New Jersey, hit two stopped vehicles as the result of texting while driving. She was taken to the hospital with internal chest and stomach injuries and two occupants of one of the struck vehicles were also transported to the hospital and treated for shoulder, arm, and leg injuries.
The woman had been using her cell phone while driving her 2002 Mazda Tribute eastbound along Route 70 when she crossed onto the westbound side and struck a 2007 Acura MDX, which was stopped at a red light. The impact pushed the Acura into a 1999 Cadillac DeVille, which was also stopped at the light. The driver of the Mazda was issued citations for using a wireless telephone to text while driving, and careless driving.
According to the Insurance Institute for Highway Safety (IIHS), it is illegal in New Jersey to use a hand-held cell phone while driving or to text while driving. Any driver who violates these laws is committing a primary traffic offense and endangering the safety of all other occupants of the road including pedestrians.
If you or a loved one has been injured in a New Jersey car accident caused by a negligent driver, such as one texting while driving, you may be entitled to financial compensation for your injuries. To learn more about your legal rights and options, contact the NJ car accident lawyers at Blume Goldfaden at (973) 635-5400. You may also request a no-cost consultation by filling out our online contact form at: http://www.njatty.com/contact-us.htm.
In this matter. Surgery was performed on plaintiff at ambulatory surgical facility owned by Summit Medical Group. The surgery was a septoplasty, nasal reconstruction and inferior turbinate coblation to correct nasal deformity as a result of a fracture, causing difficulty breathing in plaintiff. The surgery was performed by Dr. Jeffery LeBenger (“LeBenger”), with anesthesia provided by Dr. Tony George (“George”). The surgery was reported as being without injury, although when plaintiff awoke, she reported sharp pain in her left arm, numbness and loss of motion. She was informed that her arm was pinched during surgery, caught between the mattress and rail. rehabilitation. Plaintiff then instituted an action for medical malpractice, claiming that she suffered from immediate compressive neuropathy and radial nerve palsy in her left arm and hand, resulting in constant pain and difficulty performing tasks due to a lack of strength in her left arm. During discovery, counsel for the defendant George amended his answers to interrogatories to indicate that he might call Mary Zimmerman, R.N. (Zimmerman ) as an expert to be relied upon at trial. George then submitted an expert report authored by Zimmerman. Plaintiff, therefore, also indicated that she would adopt Zimmerman’s report and rely on her testimony at trial. Defendant George objected to plaintiff’s intent to call Zimmerman as an expert witness to testify on behalf of plaintiff. Defendant George asserted that he had not yet determined whether Zimmermann would be called as a witness at trial and that he had the sole right to make that determination. Plaintiff argued that under Fitzgerald v. Stanley Brothers, Inc., 186 N.J. 286, 302 (2006) defendant has no right to withhold access to an expert witness simply because he supplied the witness.
The Trial Court ruled that when a party provides an expert’s identity and opinion to an adverse party, the original retaining party waives all rights to deem the information as privileged.. Similarly, it was held that Fitzgerald stands for the assertion that an adversary has the right to produce a willing expert at trial, regardless of the party who originally retained the witness, and, that absent a privilege, everyone has access to a witness. Lastly, in this case, since the expert witness was formally named, the plaintiff did not have to demonstrate the existence of exceptional circumstances in order to call her in plaintiff’s case in chief.
According to the Court, R. 4:10-2(d)(3) states, in relevant part:
“A party may discover facts known or opinions held by an expert . . . who has been retained or specially employed by another party in anticipation of litigation preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.”
The Fitzgerald exception provides that once the identity and opinion of an expert has been disclosed, all privilege is waived. Opposing counsel is then free to rely on that opinion without a showing of exceptional circumstances. Further, the Court held that it was irrelevant that defendant George had not clearly indicated whether Nurse Zimmerman was to actually testify at trial. Moreover, Zimmerman would be free to decline to testify on plaintiff’s behalf if she so chose
On remand from the NJ Supreme Court, the Appellate Division upheld, in its June 28, 2012 decision, a trial court Order entering summary judgment in favor of the defendant for its negligence in handling a 9-1-1 call. The Court ruled that while the 911 operators were clearly negligent, they are immune from liability pursuant to NJSA 52:17C-10(d) which requires that a plaintiff prove “a wanton and willful disregard for the safety of persons or property.” That requirement was not met, based upon the evidence in the Wilson case. Going forward, a 911 operator and his/her employer are not liable for mere negligence under the statute, and, can only be responsible if they acted with a wanton and willful disregard for the safety of others.
Decided by the Supreme Court of New Jersey on July 1, 2012, holds that while NJSA 26:2K-29 immunizes EMTs, officers and members of a first aid, ambulance or rescue liable for civil damages as a result of their negligence in providing intermediate life support services in good faith, the plain language of the statute does not afford such immunity to the rescue squad itself as an entity. Therefore, in this case, the Supreme Court ruled that the dismissal of the rescue squad from the matter on summary judgment was in error, and, that decision was reversed.
In a personal injury action where the plaintiff claimed he required surgery for a herniated lumbar disk, defense counsel attempted to use an office note of a physician during cross-examine of a plaintiff’s recollection about prior complaints of lower back pain. The note had L5 circled for nine different office visits. Neither the physician nor anyone from his staff was called to testify about the note. Plaintiff also testified that the notes did not refresh his recollection. In addition, the note did not contain any statements attributable to the plaintiff.
The Appellate Division ruled on May 30, 2012 that a trial court has an obligation to prevent a witness or party from putting into the record the contents of an otherwise inadmissible writing under the guise of refreshing recollection. Defense counsel could have presented the plaintiff with the doctor’s notes outside the presence of the jury to see whether or not they refreshed his recollection. Allowing the plaintiff to be cross-examined with a hearsay note improperly introduced into evidence, when it did not refresh plaintiff’s recollection and when the note did not contain statements made by plaintiff, was reversible error. The finding of no proximate cause by the jury was reversed and the matter was remanded for a new trial on damages.
Medical Employer May Still Be Sued For Malpractice Even Though Employee’s Claims Dismissed On Statute Of Limitations Grounds
In a recent Appellate Division decision, the Court held that a Hospital and Medical Group that employed a physician, who was dismissed from the case on statute of limitations grounds, may still be sued for medical malpractice on a vicarious liability theory.
In Walker v. Choudhary (A-1425-10T1 – Approved for Publication), a deceased patient’s family sued a medical practice group, hospital and four physicians for malpractice. One of the doctors moved to dismiss the complaint based upon an Affidavit of Non-Involvement. The motion was granted and plaintiff moved to add the correct doctor as a defendant. Subsequently, as more than 2 years had passed since the amendment to add the new doctor, and, because plaintiff had not acted diligently in moving to amend, the newly named doctor was dismissed from the case on statute of limitations grounds. The newly named physician had also been employed by the defendant South Jersey Emergency Room Physicians P.C. group. South Jersey Healthcare owned the defendant South Jersey Regional Medical Center, and, it was also contended that the newly added doctor would also have been an employee of the defendant South Jersey Healthcare under the principles of apparent authority and respondeat superior.
The defendant physician group and hospital also moved to dismiss the case against them, as the complaint against the late named doctor had already been dismissed on the statute of limitations grounds. The trial court granted the group and hospital’s motions, stating that since the doctor in question had been dismissed on statute of limitation grounds, that such a determination was an “adjudication on the merits.” As such, the trial court ruled, that determination was “res judicata” as to the vicarious claims against the group and hospital.
The Appellate Division concluded otherwise finding that “an employer can be subject to suit for the negligent actions of its employee under the principle of respondeat superior even though the employee is dismissed because the claims against her or him were filed outside of the statute of limitations.” As a result, the plaintiff’s malpractice and wrongful death claims were reinstated against the hospital and physician group.
This decision will have importance in claims against the University of Medicine and Dentistry of New Jersey (“UMDNJ”), a public entity, where claims against its employees must be noticed within 90 days of the event, and, in extraordinary circumstances, within at least one year from the event. Where a claim is timely filed as to UMDNJ, but a claim against its employee is brought outside the notice of claim time limitations, the claim against UMDNJ will still survive.
The NJ Legislature, in response to an apparent oversight on their part, amended the “Affidavit of Merit“ statute, effective last year, to include midwives as ‘licensed persons.’ NJSA 2A:53A-26. With this amendment, affidavits of merit must now be served in cases filed against midwives for professional malpractice.
Previously, midwives had been omitted from the statute and NJ Courts had ruled that affidavits need not be served in lawsuits against CNMs. Saunders v. Capital Health System at Mercer, 147 (NJ Super. App. Div. 2008)
Obviously, with respect to cases alleging inadequate prenatal care and/or delivery negligence, this was a proper correction of the statute as there is not much difference regarding the standards of care applicable to midwives and obstetricians (who were already included in the list as ‘licensed persons’). However, the legislature has not yet seen fit to extend the affidavit requirement against certain other medical professionals. For example, optometrists are still not considered ‘licensed persons’ under NJSA 2A:53A-26 and malpractice lawsuits may proceed against O.D.’s without the need of serving an Affidavit of Merit. Mirow v. Lebovic, 2009 U.S. Dist. LEXIS 118507
Michael B. Zerres of Blume Goldfaden Obtains $7.346 Million Dollar Verdict for New Jersey Construction Negligence and Medical Malpractice Case
After a 3 month trial, a Middlesex County jury awarded the family of a 47-year-old construction worker $7.346 million for injuries he suffered resulting in his death following a construction accident and subsequent negligent medical care. Michael B. Zerres of Blume Goldfaden handled the case.
In the case, the worker, Jack Davila, was a laborer assisting in the erection of a mega shredder at the property of Hugo Neu Schnitzer East in Jersey City, NJ. Hugo Neu was acting as the site’s general contractor and was responsible for overall job site safety. A second contractor, FEMCO, was responsible for installing the mega shredder on concrete bases previously erected by Mr. Davila’s employer, Simpson and Brown.
On the day of the accident, a FEMCO employee placed an extension ladder against a concrete pillar and left it unsecured. The ladder later slid off the base striking Mr. Davila in the head where he was standing 20 feet away. Mr. Davila suffered a cervical spine injury and was transported to Jersey City Medical Center where he underwent an emergency discectomy at C3-C4.
Thereafter, he came under the care of Patricia Schrader, M.D., a critical care surgeon. On the second post operative day, the patient aspirated and suffered a 10 minute period of hypoxia resulting in an anoxic brain injury. It was asserted that Dr. Schrader failed to intubate the patient prior to the aspiration event as a result of increased difficulty swallowing post op.
As a result, Mr. Davila was left with a brain injury and quadriplegia from which he never recovered. Mr. Davila remained in long term care until he succumbed to his injuries 3 years later. He is survived by a wife and 2 adult children.
The jury returned a verdict finding that both Hugo Neu and FEMCO were negligent in causing the construction accident and finding that Dr. Schrader was negligent in worsening Mr. Davila’s injury.
The jury awarded more than $7.346 million for pain, suffering, lost income, loss of enjoyment of life, medical expenses, and loss of future services, guidance, and counseling. Damages were apportioned 77% to the construction defendants and 23% to Dr. Schrader and her employers Jersey City Medical Center and Liberty Surgical Associates.
The Hon. Philip Paley presided over the trial.
In the future, that is from August 22, 2011 and on, all doctors who are defendants in medical malpractice cases in New Jersey must include in his/her filed Answer the medical specialty he/she was practicing at the time care was provided to the plaintiff. This will limit any confusion that may exist with respect to what type of practitioner a plaintiff must serve an Affidavit of Merit from for each named defendant.
In almost all medical malpractice cases, a plaintiff must serve an Affidavit of Merit from a physician in the same field as the defendant(s) that “there exists a reasonable probability that” the defendant(s) treatment “fell outside acceptable professional standards.” If such an Affidavit is timely supplied, the plaintiff’s case will be dismissed. To limit the number of motions to dismiss for failure to comply with the New Jersey Affidavit of Merit statute, the Supreme Court in Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (2003) required that the Trial Court, in all medical malpractice cases, hold a conference within 90 days of a defendant’s filing an Answer to determine if there are any objections to a plaintiff’s Affidavit of Merit. If the Court found a plaintiff’s Affidavit deficient, the plaintiff would have until the end of the statutory 120 day period to serve a proper Affidavit. The reasoning for the conference by the Ferreira Court was that “an ounce of prevention is worth a pound of cure.”
In Buck, the plaintiff filed a lawsuit against James R. Henry M.D alleging that the doctor was negligent in prescribing Ambien, resulting in Mr. Henry accidentally shooting himself with a gun. The doctor, who was a board certified ER physician, and who was treating a psychiatric condition, ie, a sleep disorder, was served by plaintiff’s counsel with an Affidavit of Merit of both an ER specialist and psychiatrist. Regrettably, the trial Court never conducted the Supreme Court mandated Ferreira conference.
Notably, the defendant never became board-certified in Family Medicine; yet, Dr. Henry filed a motion for Summary Judgment to dismiss the Complaint certifying that he treated the plaintiff as a “family practitioner,” and, that Mr. Buck’s lawyer never served an Affidavit from a doctor specializing in family practice. The Court granted defendant’s motion and the Appellate Division affirmed.
The Supreme Court, in reversing, remanded the case to the trial Court, directing it to conduct a Ferreira conference, and, further stated that, in all future medical malpractice cases, the defendant must indicate in his/her Answer the medical specialty he/she was practicing while caring for the plaintiff-patient and whether the treatment of the plaintiff “involved that specialty.”
The Buck Court noted that a defendant need not be board-certified in a certain specialty in order to practice in that field, specifically stating, as it pertains to this case, that “one can practice family medicine without board certification.” However, since the defendant never fully disclosed his status as a family practice doctor until he submitted a Certification with his motion to dismiss after the time to file an Affidavit expired, the Court recognized that “[t]his case represents a perfect example of the pitfalls facing a plaintiff’s attorney and of the need for timely Ferreira conferences.” Had such a conference been held by the trial Court in Buck, the Supreme Court acknowledged that it would have likely led to the timely filing of an Affidavit of Merit from a family medicine specialist and “obviated the need for the summary-judgment motion that led to the dismissal of plaintiff’s cause of action.”
In a case involving an unauthorized autopsy of a deceased child by UMDNJ employed pathologists following a termination of pregnancy at Robert Wood Johnson University Hospital, the defendant hospital moved to be dismissed from the case arguing it did not employ the UMDNJ employees. While true, the United States District court for the District of New Jersey (Joel Pisano USDJ) ruled that the hospital may be liable for the negligent conduct of the UMDNJ employees pursuant to the doctrine of “apparent authority” established in the case of Cordero v. Christ Hospital, 403 N.J. Super. 306 (App. Div. 2008).
In Thompson v. Robert Wood Johnson University Hospital, 2011 U.S. Dist. LEXIS 63980, Judge Pisano concluded that, utilizing the theory of “apparent authority” pronounced in Cordero, “there is no evidence that RWJ informed plaintiffs that the pathology department at the hospital was contracted out to UMDNJ or that plaintiffs were given an opportunity to select or reject the care provided by the pathology department.” In such circumstances, “a juror could find that plaintiffs formed a reasonable belief that the doctors in the pathology department were agents of RWJ,” leaving open the opportunity for plaintiffs to obtain a verdict against the hospital for the unauthorized autopsy performed by the UMDNJ employed pathologists.