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2009 July Archive

Using a Medical Publication in Cross-Examination of an Expert Witness

By Attorney Michael B. Zerres on July 13, 2009

“Learned treatise” may be used to cross-examine an expert even if he or she does not recognize the publications as an “authority”

It’s not uncommon during the trial of any medical malpractice case for a lawyer to try and cross-examine an opposing expert witness with a medical publication, or “learned treatise,” that contradicts or refutes that expert’s sworn testimony. A cagey medical expert can try and deflect such tactics by claiming not to recognize the publications as ‘reliable’ or ‘authoratative.’ That way, the expert can try and prevent the lawyer from asking him or her about the contents of an article or text that is intended to poke holes in the expert’s opinions. Not so fast, said the Appellate Division in the March 26, 2009 decision in Mohrle v. Kim (A-4509-07T2)

In this case, the expert for the plaintiff criticized Dr. Kim for the manner in which he performed an excisional breast biopsy. When confronted with a textbook on Breast Disease, the expert refused to acknowledge it as an authority, and the plaintiff (after an adverse result), complained that, as such, it should not have been used in cross-examination of the expert. Of course, the text validated Dr. Kim’s testimony on how an excisional biopsy ought to be done, and, strongly refuted the plaintiff’s expert’s testimony to the contrary. Read the rest »


Can You Sue Your HMO for Medical Malpractice?

By Attorney Michael B. Zerres on July 13, 2009

In many cases – NO

The recent Appellate Division decision in Yodzis v. Health Net (2/26/09) reminds us that it is only in the rare circumstance, when an HMO doctor actually provides treatment, or, is the employer of a treating physician, that a patient may sue an HMO that is governed by ERISA for medical malpractice.

Many HMOs are, in fact, governed by ERISA (the Employee Retirement Income Security Act of 1974). ERISA provides, rather unfairly, a broad based pre-emption against medical malpractice claims made in State Court for negligent decisions made by HMO physicians in determining whether or not care ought to be provided to a patient under the terms of the HMO plan. Read the rest »


Hospital May Be Liable For Negligence of Staff Physician Who Does Not Reveal She Is An Independent Contractor

By Attorney Michael B. Zerres on July 13, 2009

Apparent Authority Doctrine Upheld in New Jersey

On October 29, 2008, the NJ Appellate Division, in a case I am actually handling, made it clear that hospitals can be liable for the neglect of a so-called ‘independent contractor’ physician if it is not made clear to the patient that the physician is not a hospital employee.

In the unfortunate matter involving the Estate of Ramona Cordero v. Dr. Zaklama and Christ Hospital, it was held that, under the doctrine of “Apparent Authority” an anesthesiologist who does not disclose to a patient that she is an independent contractor may be reasonably assumed by the patient to be a hospital employee, and, thus, hold the hospital responsible for the neglect of that doctor as an agent or employee of the hospital. In this case, my clients wife/mother underwent a relatively simple surgical procedure at Christ Hospital, namely, the insertion of a catheter so that she could receive hemodialysis. Prior to the procedure, she was introduced to Dr. Selvia Zaklama, an anesthesiologist on staff at the hospital, who was employed by Hudson Anesthesiology – a group contracted by the hospital to provide anesthesia services to patients admitted at the hospital. Without any information to the contrary, Ms. Cordero assumed that this physician, who was provided by the hospital, was employed by the hospital. Unlike her attending physician, Ms. Cordero had no prior relationship with this doctor, who was randomly assigned to provide anesthesia for the surgery. In fact, the doctor wore a name tag with the name “Christ Hospital” on it, and, the hospital listed her as one of its anesthesiologists on its website. During the short surgery, Dr. Zaklama failed to timely intervene by administering quick acting medications when Ms. Cordero’s blood pressure began to drop; as a result Ms. Cordero went into cardiac arrest, restricting the flow of oxygen to her brain, and, causing her to become permanently brain damaged. After remaining in a vegetative state for 3 1/2 years, she died as a consequence of her brain injury. Read the rest »


Affidavit of Merit Revisited

By Attorney Michael B. Zerres on July 13, 2009

Failure to Hold “Ferreira” Conference Precludes Dismissal of Case if Affidavit of Merit Not Timely Served

In the last couple blog entries, I discussed the frequently litigated issue of timely filing an Affidavit of Merit in a professional malpractice case.

As I stated below, in a malpractice case against someone like a physician, an Affidavit of Merit of a properly credentialed physician is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case, and, can result in the case being dismissed. Affidavits of Merit also apply to other professionals as well: nurse, pharmacists, engineers, architects.

As I also stated below, at the trial court level, the Courts, as mandated by the Supreme Court in Ferreria v. Rancocas Orthopedic, should conduct an accelerated case management conference within 90 days of the filing of an Answer to address the sufficiency of a plaintiff’s affidavits of merit, and, that the failure to timely hold one may result in an otherwise late served Affidavit of Merit to be considered served on time. Read the rest »


Filling of Wrong Prescription by Pharmacist Does Not Require Affidavit of Merit Against Pharmacist/Pharmacy

By Attorney Michael B. Zerres on July 13, 2009

“Common Knowledge” Rule Found to Apply

On April 21, 2008, the NJ Appellate Division published a decision involving a Walgreen’s pharmacist who filled a patient’s prescription incorrectly: in Bender v. Walgreen Eastern Co. Inc., the pharmacist was asked to fill a prescription for “Primidone,” but mistakenly gave the patient a prescription for “Prednisone” – a steroid. Apparently, the patient took the steroids that were provided and suffered injuries.

Normally, in a malpractice case against a pharmacy or pharmacist, an Affidavit of Merit of a licensed pharmacist is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case, and, can result in the case being dismissed. Read the rest »


Affidavit of Merit Not Required in Suit Against Midwife

By Attorney Michael B. Zerres on July 13, 2009

Serving an Affidavit of Merit in most medical malpractice suits is a pre-requisite for the case to go forward.

For example, in a suit against an obstetrician, a plaintiff must normally serve an Affidavit of Merit of a qualified obstetrician within 60 days of the filing of an Answer by the defendant or risk having the case dismissed.

NJSA 2A:53A-26, the Affidavit of Merit statute, provides a list of 15 specified licensed persons, such as physicians and nurses, for whom an Affidavit of Merit must be provided if such a licensed professional is sued. However, in the recent case of Saunders v. Capital Health System, decided by the Appellate Division on 3/5/08, the Court held that since the Affidavit of Merit statute does not specifically list a certified nurse midwife as a ‘licensed person’ for whom an Affidavit of Merit is required, one need not be provided by the plaintiff. As a result, the failure to serve one will not result in dismissal of a plaintiff’s lawsuit. Read the rest »


Evidence Improperly Provided to the Jury Requires New Trial

By Attorney Michael B. Zerres on July 13, 2009

Highlighted Medical Report was Inadvertently Given to the Jury

In Tepper v Urdinaran, the NJ Appellate Division on 3/5/08 ruled that in a medical malpractice case alleging a delay in diagnosing a woman’s colon cancer, the inadvertent submission to the jury of a highlighted medical report not properly moved into evidence was sufficient to require a new trial.

Normally, after attorney summations, it is required that both plaintiff and defense counsel review the documents submitted into evidence to make sure a) all of the evidence that should be given to the jury is actually provided to them , and, b) that any documents not moved into evidence be EXCLUDED from the materials submitted to the jury. Read the rest »


9-1-1 Operator May Be Liable for Negligent Conduct

By Attorney Michael B. Zerres on July 13, 2009

Tort Claim Immunity Does Not Apply If Dispatcher Negligently Executed Minsiterial Duties

In a recent, non-medical malpractice decision, the Appellate Division ruled that a 911 operator is not immune for his/her neglgient conduct in carrying out “ministerial” duties. While not a medical malpractice case, the Court’s decision in Massachi v. AHL Services, 2007 N.J. Super. LEXIS 343 (November 15, 2007) has clear application in such cases.

In Massachi, a City of Newark 911 operator failed to follow written guidelines, and, wrote down incorrect information regarding a kidnapping of a student outside of Seton Hall University. Because of these “ministerial” failures, it was claimed that the kidnapper (the student’s ex-boyfriend) was allowed to escape with the victim, and, later murder the victim in his apartment in Westfield. The Appellate Court concluded that NJSA 59:3-2 (part of the Tort Claims Act) does not exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions, i.e., a function performed in a prescribed manner without the need to exercise judgment regarding the task being done. Read the rest »


Advances in Cervical Cancer Screening

By Attorney Michael B. Zerres on July 13, 2009

Recent Data Supports the Use of HPV Testing

Cervical intraepithelial neoplasia is the abnormal growth of precancerous cells in the cervix. Most such cases remain stable, or, are eliminated by the host’s immune system without intervention. However a small percentage of cases progress to become cervical cancer – which is the second most common cancer in women worldwide – despite the availability of PAP testing for at least the last 50 years.

The major cause of cervical intraepithelial neoplasia lesions is infection with the sexually transmitted human papillomavirus (HPV). A recent study in the New England Journal of Medicine shows that HPV testing is more sensitive than standard PAP smear testing for the screening of cervical-cancer precursors. In fact, HPV testing was almost 40% more sensitive that testing by PAP smear. Read the rest »


Mandatory Newborn Infant Screening

By Attorney Michael B. Zerres on July 13, 2009

Many Preventable and Treatable Biochemical Disorders Should Be Discovered After Birth

Everyone is probably familiar with the fact that newborn infants are routinely screened for hypothyroidism. Well, not only is it routine, it is mandatory. Since 1977, hypothyroidism, and over time, a number of other potential debilitating disorders are required to be screened in all newborn infants born in New Jersey.

The state legislature has wisely mandated the testing of newborn infants for the following preventable and treatable biochemical disorders, which – if left untreated – could cause mental retardation or other permanent disbilities: Read the rest »


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