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.
However, the Court held that the Affidavit of Merit Statute did not apply in the current action as, pursuant to the Appellate Division decision in Saunders v. Capital Health System at Mercer, 398 N.J. Super. 500 (App. Div. 2008), an Affidavit of Merit only need be produced if the defendant is listed as a licensed person under N.J.S.A. 2A:53A-26. Therefore, because psychologists are not listed in the statute as licensed persons for which an Affidavit is required, the Court, in a June 20, 2013 decision, denied medical defendants’ motion to dismiss the Complaint.
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.
During the trial, there was no expert witness testimony setting forth any negligence by the settling co-defendants. The Court held that because there could be no adjudication as to the settling co-defendants based upon the vidence presented, the defendant Mehta was the only defendant for which the jury had to determine liability, and as such, the defendant Mehta was not entitled to any credit as a result of the plaintiff’s settlement with the co-defendants.
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.
The Appellate Division, on July 8, 2013, affirmed the Trial Court’s denial of Trinitas’ motion to dismiss. The Court looked to Lafage v. Jani, 166 N.J. 412 (2001), and, held that the wrongful death statute of limitations would be tolled, given the status of the estate’s beneficiaries as minors. However, the Court further concluded that, although under Lafage the wrongful death statute is tolled for minors, it does not stand for the contention that this action could have been brought at any time before the minors were adults. Instead, the Court left that issue untouched because, here, the wrongful death action was originally commenced in a timely fashion, and, defendant Trinitas was named as a party in an amended Complaint rather than in a successive action.
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.
Plaintiff appealed the Trial Court’s decision. On August 2, 2013, the Appellate Division, affirmed the Trial Court’s order barring the expert’s testimony because he did not meet the qualification requirements of the Patients First Act. However, the Appellate Court reversed the order dismissing plaintiff’s Complaint. The Court held that because defendant’s counsel waited five years to object to the expert despite knowing of the lack of qualifications and because counsel’s conduct during that period induced plaintiff to believe that he could rely on his expert’s testimony to prove his case, plaintiff should be given a reasonable amount of time to obtain a family practice expert as to Dr. Ahn as was required by N.J.S.A. 2A:53A-41.
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.
The Appellate court agreed with the trial court that the plaintiff’s treating physician, Dr. Steinberger, was called as a fact witness and not as an expert witness. Therefore, because Dr. Steinberger was being called as a fact witness, he did not need to be qualified as an expert or provide an expert report.
Specifically, Rules 4:10-2(d)(1) and/or 4:17-4(e), which require that the plaintiff provide an expert report with a complete statement of the expert’s opinions, along with the bases of those opinions, did not apply. The Appellate Division affirmed that, as plaintiff’s treating physician, Dr. Steinberger may testify as to his diagnosis and treatment, including his opinion as to the cause of the patient’s medical condition.
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.