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