Plaintiff appealed two orders of the Trial Court. One which granted the defendant surgeon’s motion to dismiss plaintiff’s Complaint for failure to comply with the Affidavit of Merit Statue. The second Order denied plaintiff’s cross motion for a waiver of the specialty requirement on N.J.S.A 2A:53A-41(a).
The Appellate Court affirmed the Trial Court’s denial of plaintiff’s motion for a waiver of the specialty requirement, based upon the fact that plaintiff’s expert lacked active involvement in the area of medicine at issue in the case, as required by N.J.S.A. 2A:53A-41(C). The plaintiff’s proposed expert had not published in defendant’s area of practice (general surgery), and had never been a board-certified surgeon. More importantly, the record did not show that the expert was treating surgical patients at or near the time of plaintiff’s surgery, let alone patients with plaintiff’s specific medical issues. Read the rest »
CLARIFICATION ON THE STATUTE OF LIMITATIONS FOR “SURVIVAL” CLAIMS – WARREN V. MUENZEN, 448 N.J. SUPER. 52, (SUPER. CT. APP. DIV. 2016)DECEMBER 7, 2016).
In this case, decedent’s wife filed suit approximately fifteen (15) months after his death alleging that the decedent’s primary care doctor failed to diagnose prostate cancer in 2007, and as a result, he was not diagnosed until October 2009. By that point, the cancer had metastasized to his brain and spine. On September 27, 2011 the patient died. On January 18, 2013 suit was filed alleging, in part, (1) wrongful death; (2) a survival action.
The trial judge denied a motion for summary judgment as to the Survival Act claim based on his conclusion that those claims were not time barred because “”Robert had a cognizable cause of action against defendant for medical negligence that was not time-barred when Robert died in September 2011. The rationale espoused by the trial judge was that, “[i]f the person dies with a claim not time-barred, then from the date of death, the administrator or executor has the extended two years from the date of death to file survival actions. . . .”
Settling Defendant Charge Need Not Always Be Given – Hernandez v. Chekenian, No. L-11038 14, 2016 WL 6024008, (N.J. Super. Ct. Law Div. July 15, 2016).
In a recently published decision a Trial Court addressed whether it is appropriate to give a settling defendant charge to a jury when the party in question settled prior to trial, and, was present during trial.
The matter involved a three car motor vehicle accident, in which all cars were one behind the other, in the same lane. Plaintiff was the passenger of the second (middle) car. Defendant driver of the second (middle) car settled for his policy limits prior to trial. Counsel for defendant requested that the court give the jury the settling co-defendant charge(s) regarding “Settling Defendants” and “Instructions to Jury In Cases In Which One Or More Defendants Have Settled With The Plaintiff.” Plaintiff opposed this request, the Court agreed, and no such instruction was given.
Vascular Surgeon Not Qualified to Testify Against Family Practitioner Who Performed a Vascular Procedure – Afonso v. Bejjani – A-1623-15T4
In this matter, decided on November 29, 2016, the Appellate Division ruled on yet another malpractice case involving the application of the New Jersey Medical Care Access and Responsibility and Patients First Act (“Patients First Act”), set forth in N.J.S.A. 2A:53A-41, and, held that the plaintiff’s proposed expert testimony was correctly excluded because said expert was not a family medicine specialist like the defendant. The case arises when two family practitioners, Drs. Ricci and Bejjani, both co-defendants, performed a phlebectomy upon plaintiff. A phlebectomy is the removal of varicose veins through small puncture sited in the skin using a surgical hook. The phlebectomy was performed on both of the plaintiff’s leg, each physician taking one leg. The result included an emergency room visit by the patient, with multiple infected wounds.
Federally Qualified Health Center entitled to New Jersey’s to Cap on Charitable Immunity for Hospitals – S.M. v. United States of America – CA No. 13-5702, USDC – DNJ
This is a medical malpractice case where the plaintiff alleged that employees of CompleteCare Health Network dba Vineland Women’s Health Center, a federally qualified health center, deviated from the standard of care when they failed to timely offer plaintiff proper prenatal screening for Down Syndrome, thereby depriving plaintiff of necessary information to make a fully informed decision as to whether or not to continue her pregnancy. S.M. was born with Down Syndrome.
One of the issues before the Court was whether CompleteCare qualified as a charitable organization under the New Jersey Charitable Immunity Act (“NJCIA”), N.J. Stat. Ann. § 2A:53A-7(a), and, was, therefore, absolutely or partially immune from liability.
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 »