“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.
No foul said the Appellate Division, clarifying that the very purpose of the so-called “learned treatise” rule (NJ Rule of Evidence 803(c)(18)) was to allow its admissibility so long as ANY WITNESS at the trial recognized it as a reliable publication. This would allow its use in cross-examination of an expert, who knowing its potentially harmful contents, tried to block its use by claiming it not be reliable.
Of course, the expert can still disagree with its contents, and, then, it is for the jury to evaluate the expert’ s credibility, given all of the evidence and circumstances in the case, in light of any contradictory statements contained in a publication.
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.
Many times such plans only allow for treatment deemed “medically necessary and appropriate.” In Yodzis, the patient’s vascular surgeon requested that he undergo an arteriogram and endarectomy to help reduce the risk of a future stroke. Pre-authorization was sought from Health Net, which was denied, because it was claimed the patient had a history of alcohol abuse which first had to be treated. As a result, the proposed surgeries were cancelled. Additionally, Mr. Yodzis’ Coumadin, a blood thinner, had also been discontinued in anticipation of the proposed surgeries. Delays continued in the scheduling of the surgeries and the plaintiff remained off his Coumadin, and, approximately one month later he suffered a severe, disabling stroke.
In rejecting the patient’s claim against the Health Net physicians for medical malpractice in denying the request for necessary surgeries, the Court held that such claims are, unfortunately, barred by the pre-emptive language of ERISA. Courts have interpreted this language to mean that managed care decisions made by non-treating HMO physicians in denying care to a patient cannot be the basis of a State Court malpractice claim.
The one apparent exception to this broad based pre-emptive doctrine is when a treating physician is employed by an HMO and makes an administrative decision that also requires the exercise of medical judgment. Thus, the HMO can be liable only when it’s employee physician is an actual treating physician, a rare occasion. While the Court acknowledges that such restrictions seem unfair, it is only through changes in the federal ERISA law that will allow a patient who is an ERISA based HMO plan to sue the plan’s doctors for negligently denying or delaying benefits. Patients who participate in plans not governed by ERISA do not have such limitations, and, New Jersey’s own Health Care Accountability Act (NJSA 2A:53A-30 to 36) allows for a medical-malpractice type action against a non-ERISA HMO for benefit denials and delays.
Hospital May Be Liable For Negligence of Staff Physician Who Does Not Reveal She Is An Independent Contractor
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.
The Appellate Division, in Cordero v. Christ Hospital, ruled that where a physician on staff at a hospital, such as a anesthesiologist or emergency room doctor, does not make it clear to the patient that he or she does not work for the hospital, but is an independent contractor, it is reasonable for a patient to assume that the hospital has supplied that doctor, rendering the hospital vicariously liable for the fault of the physician under a doctrine known as “respondeat superior”.
Quoting the Court, “Imputation of liability based on apparent authority prevents a principal from choos[ing] to act through agents whom it has clothed with the trappings of authority and then determin[ing] at a later time whether the consequences of their acts offer an advantage.” Restatement (Third) of Agency, § 2.03 comment c (2006). On that ground, a principal is vicariously liable for its agent’s tortious conduct “when actions taken by [an] agent with apparent authority constitute the tort . . . .” Id. at § 7.08; see id. at comment b (discussing the rationale for tort liability based on apparent authority). When a hospital’s conduct permits a patient to “properly assume” a doctor is rendering treatment in behalf of the hospital, principles of apparent authority prohibit the hospital from avoiding liability by relying on “secret limitations . . . in a private contract between the hospital and the doctor.”
In this case, while the family has obtained a settlement against the doctor and her group, they are now permitted to proceed with their case against the presumed employer of the doctor, Christ Hospital – who, has prior to the Appellate Division’s decision, denied any responsibility for the conduct of Dr. Zaklama. It would also seem that if Dr. Zaklama is regarded as an agent\employee of the Hospital, it must now provide her with its liability and excess insurance coverage, and, its exposure would the same as it would be for an other employee. In fact, in at least one other case I have handled involving an “apparent authority” issue (that one involving an emergency room physician) I have successfully recovered over and above the hospital’s statutory “cap”, since the hospital was considered the ‘employer’ of the physician, and, would have been vicariously responsible for any damages awarded against the ER physician.
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.
In another decision on the timely filing of an Affidavit of Merit, this one involving Accounting malpractice, attorneys are again reminded that where an Affidavit of Merit is not timely served, but where a Ferreira conference is not scheduled, the failure to hold a Ferreira conference will be a bar to the dismissal of the lawsuit.
On July 3, 2008, in the matter of Fairfield Bd. of Educ. v. Doerr, the trial Court in Essex County (Judge John Kennedy), reiterated that had, a Ferreira conference been held – as it is required to be in any professional negligence claim – any defects in the proper service of an Affidavit of Merit could have been addressed in a proper way. As such, the failure of the Court to schedule such a conference would be a reason to prevent the disimissal of a case for failure to properly serve such an Affidavit.
Filling of Wrong Prescription by Pharmacist Does Not Require Affidavit of Merit Against Pharmacist/Pharmacy
“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.
However, in Bender, the Court, finding the pharmacist’s error was akin to a dentist pulling out the wrong tooth, ruled that giving a patient the wrong medication as was done by the Walgreen’s pharmacist, is such an obvious error that the “common knowledge” doctrine would apply. In other words, no expert was needed to explain that giving the wrong medication was an error, as such a blunder would be something that jurors could figure out without the need for expert testimony. Relying, therefore, on Hubbard v. Reed, 168 NJ 387 (2001), the Court ruled that since there was no need for expert testimony on the issue of the pharmacy’s negligence, there was also no requirement that an Affidavit of Merit be provided.
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.
In addition, the Court reminded that, 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.
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.
Unfortunately, in Tepper, there was a report, authored by the defendant and sent to a referring physician, that was never moved into evidence, but, nonetheless was somehow given to the jury. The document, which had been referred to by both counsel during trial, had, additionally, certain language which was the subject of one of the legal disputes in the case underlined and circled. The Appellate Division concluded that the document, which should never have been provided to the jury, had the capacity to influence the jury to reach a conclusion it otherwise might not have reached, and, that, as a result, the case would have to be tried again.
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.
Applying the Court’s rationale to a potential medical malpractice claim, it would now seem that 911 operators would not be immune under the Tort Claims Act, in the case of a medical emergency, if he/she failed to record data during a 911 call in an accurate matter and/or follow prescribed guidelines, and, such negligence results in a delay that causes the person suffering the medical emergency to suffer harm.
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.
The trial, conducted by Dr. Marie-Helene Mayrand and colleagues at McGill University in Montreal, concluded that while the sensitivity of PAP testing for Grade 2 or 3 pre-cancerous cervical lesions was 55.4%, the sensitivity of HPV testing for the same lesions was 94.6%.
The results clearly suggest that, in addition to routine PAP screening, women should incorporate HPV testing as a screening tool for pre-cancerous cervical lesions. The availability of such dual screening would likely reduce the incidence of cervical cancer, as the pre-cancerous lesions identified during screening tests can be surgically removed with a laser before they develop into a true malignancy.
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:
- SICKLE CELL ANEMIA
- MAPLE SYRUP URINE DISEASE
- CONGENITAL ADRENAL HYPERLASIA
- CYSTIC FIBROSIS
- BIOTINIDASE DEFICIENCY
- MCAD, SCAD, LCAD AND VLCCAD DEFIFICIENCY
- ARGINOSUCCINIC ACIDEMIA
- METHYLMALONIC ACIDEMIA
- PROPIONIC ACIDEMIA
- GLUTARIC ACIDEMIA TYPE I
- ISOVALERIC ACIDEMIA
- 3H3MCoA LYASE DEFICIENCY, AND,
- 3MCoA CARBOXYLASE DEFICIENCY
If diagnosed on a screening test, these conditions must be treated promptly.