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New Jersey Medical Malpractice Blog

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


Komlodi Part 4: Further Analysis of the Scafidi Charge

By Attorney Michael B. Zerres on November 4, 2014

Part 4 of the Komlodi v. Picciano, WL 2050758 (N.J. 2014)
See Part 1, Part 2, Part 3

The Use of the Scafidi Charge

In Scafidi v. Seiler, 119 N.J. 93 (1990),  a two-part test was created for proving causation in cases where plaintiff’s injuries are, in part,  attributable to a pre-existing condition.  First, the jury must decide whether negligent treatment increased the risk of harm posed by the patient’s pre-existing condition.  If so, there are concurrent causes of harm and the traditional “but-for” causation charge would not apply. Then, the jury must determine whether the increased risk was a substantial factor in causing the ultimate result.  If these two elements are proven by a preponderance of the credible evidence, the burden shifts to the defendant to show what damages are attributable solely to the preexisting condition. Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on November 3, 2014

Komlodi Part 3

Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether Dr. Picciano, the plaintiff, or, both were proximate causes of the injury. The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge), but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff. However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi.

On appeal the Appellate Division reversed and remanded for a new trial stating the lower Court incorrectly charged the jury on the law. The Appellate division found clear error in giving a Scafidi charge. The panel also stated that the Trial Court erred in instructing the jury on both “but-for” causation and “substantial factor” causation in referring to the “preexisting condition/increased risk.” Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on October 29, 2014

Komlodi Part 2

The Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether  Dr. Picciano, the plaintiff, or both were proximate causes of the injury.  The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge),  but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff.  However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi. Read the rest »

Posted in: Medical Malpractice


Komlodi v. Picciano, WL 2050758 (N.J. 2014)

By Attorney Michael B. Zerres on October 28, 2014

Komlodi Part 1

Plaintiff alleged Dr. Picciano breached the duty of care in prescribing a Duragesic patch to Michelle Komlodi, a known abuser of drugs and alcohol who orally ingested the patch, resulting in a severe brain injury. The Trial Court had to assess the issue of whether Dr. Picciano, the plaintiff, or, both were proximate causes of the injury.

The Trial Court charged the jury on avoidable consequences, superseding/intervening causation, and pre-existing condition (Scafidi charge), but not on comparative negligence. The jury found that Dr. Picciano deviated from the standard of care and increased the risk of harm to the plaintiff. However, a no-cause verdict was entered on behalf of the defendant, as the jury found the increased risk of harm was not a substantial factor in producing the patient’s brain injury under Scafidi. Read the rest »

Posted in: Medical Malpractice


NJ Judges Required to Ask Jurors Open-Ended Questions

By Attorney Michael B. Zerres on October 24, 2014

Erga v. Chalmers- Docket No. A-2632-12T4 – unpublished – Jury Selection/Voir Dire – decided July 16, 2014

This matter arises out of an auto accident trial, wherein the plaintiff sought reversal of a no-cause verdict after the Trial Court failed to ask Question Six from a set of sample jury questions set forth by the Administrative Office of the Courts in Directive #4-07.

During jury selection the court informed counsel that it intended to ask Question Six in the reverse. Plaintiff’s counsel requested Question Six be read as it appeared in Directive #4-07, explaining that asking the question in the negative would not allow full and frank responses from potential jurors. Even though the defendant did not object to having Question Six read from Directive #4-07, the Court insisted on reading the question in reverse, claiming it would save the Court time during jury selection. Read the rest »

Posted in: Automobile Accident


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