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 »
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.
The NJ Legislature, in response to an apparent oversight on their part, amended the “Affidavit of Merit“ statute, effective last year, to include midwives as ‘licensed persons.’ NJSA 2A:53A-26. With this amendment, affidavits of merit must now be served in cases filed against midwives for professional malpractice.
Previously, midwives had been omitted from the statute and NJ Courts had ruled that affidavits need not be served in lawsuits against CNMs. Saunders v. Capital Health System at Mercer, 147 (NJ Super. App. Div. 2008)
Obviously, with respect to cases alleging inadequate prenatal care and/or delivery negligence, this was a proper correction of the statute as there is not much difference regarding the standards of care applicable to midwives and obstetricians (who were already included in the list as ‘licensed persons’). However, the legislature has not yet seen fit to extend the affidavit requirement against certain other medical professionals. For example, optometrists are still not considered ‘licensed persons’ under NJSA 2A:53A-26 and malpractice lawsuits may proceed against O.D.’s without the need of serving an Affidavit of Merit. Mirow v. Lebovic, 2009 U.S. Dist. LEXIS 118507
Michael B. Zerres of Blume Goldfaden Obtains $7.346 Million Dollar Verdict for New Jersey Construction Negligence and Medical Malpractice Case
After a 3 month trial, a Middlesex County jury awarded the family of a 47-year-old construction worker $7.346 million for injuries he suffered resulting in his death following a construction accident and subsequent negligent medical care. Michael B. Zerres of Blume Goldfaden handled the case.
In the case, the worker, Jack Davila, was a laborer assisting in the erection of a mega shredder at the property of Hugo Neu Schnitzer East in Jersey City, NJ. Hugo Neu was acting as the site’s general contractor and was responsible for overall job site safety. A second contractor, FEMCO, was responsible for installing the mega shredder on concrete bases previously erected by Mr. Davila’s employer, Simpson and Brown.
On the day of the accident, a FEMCO employee placed an extension ladder against a concrete pillar and left it unsecured. The ladder later slid off the base striking Mr. Davila in the head where he was standing 20 feet away. Mr. Davila suffered a cervical spine injury and was transported to Jersey City Medical Center where he underwent an emergency discectomy at C3-C4.
Thereafter, he came under the care of Patricia Schrader, M.D., a critical care surgeon. On the second post operative day, the patient aspirated and suffered a 10 minute period of hypoxia resulting in an anoxic brain injury. It was asserted that Dr. Schrader failed to intubate the patient prior to the aspiration event as a result of increased difficulty swallowing post op.
As a result, Mr. Davila was left with a brain injury and quadriplegia from which he never recovered. Mr. Davila remained in long term care until he succumbed to his injuries 3 years later. He is survived by a wife and 2 adult children.
The jury returned a verdict finding that both Hugo Neu and FEMCO were negligent in causing the construction accident and finding that Dr. Schrader was negligent in worsening Mr. Davila’s injury.
The jury awarded more than $7.346 million for pain, suffering, lost income, loss of enjoyment of life, medical expenses, and loss of future services, guidance, and counseling. Damages were apportioned 77% to the construction defendants and 23% to Dr. Schrader and her employers Jersey City Medical Center and Liberty Surgical Associates.
The Hon. Philip Paley presided over the trial.