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.
In the future, that is from August 22, 2011 and on, all doctors who are defendants in medical malpractice cases in New Jersey must include in his/her filed Answer the medical specialty he/she was practicing at the time care was provided to the plaintiff. This will limit any confusion that may exist with respect to what type of practitioner a plaintiff must serve an Affidavit of Merit from for each named defendant.
In almost all medical malpractice cases, a plaintiff must serve an Affidavit of Merit from a physician in the same field as the defendant(s) that “there exists a reasonable probability that” the defendant(s) treatment “fell outside acceptable professional standards.” If such an Affidavit is timely supplied, the plaintiff’s case will be dismissed. To limit the number of motions to dismiss for failure to comply with the New Jersey Affidavit of Merit statute, the Supreme Court in Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (2003) required that the Trial Court, in all medical malpractice cases, hold a conference within 90 days of a defendant’s filing an Answer to determine if there are any objections to a plaintiff’s Affidavit of Merit. If the Court found a plaintiff’s Affidavit deficient, the plaintiff would have until the end of the statutory 120 day period to serve a proper Affidavit. The reasoning for the conference by the Ferreira Court was that “an ounce of prevention is worth a pound of cure.”
In Buck, the plaintiff filed a lawsuit against James R. Henry M.D alleging that the doctor was negligent in prescribing Ambien, resulting in Mr. Henry accidentally shooting himself with a gun. The doctor, who was a board certified ER physician, and who was treating a psychiatric condition, ie, a sleep disorder, was served by plaintiff’s counsel with an Affidavit of Merit of both an ER specialist and psychiatrist. Regrettably, the trial Court never conducted the Supreme Court mandated Ferreira conference.
Notably, the defendant never became board-certified in Family Medicine; yet, Dr. Henry filed a motion for Summary Judgment to dismiss the Complaint certifying that he treated the plaintiff as a “family practitioner,” and, that Mr. Buck’s lawyer never served an Affidavit from a doctor specializing in family practice. The Court granted defendant’s motion and the Appellate Division affirmed.
The Supreme Court, in reversing, remanded the case to the trial Court, directing it to conduct a Ferreira conference, and, further stated that, in all future medical malpractice cases, the defendant must indicate in his/her Answer the medical specialty he/she was practicing while caring for the plaintiff-patient and whether the treatment of the plaintiff “involved that specialty.”
The Buck Court noted that a defendant need not be board-certified in a certain specialty in order to practice in that field, specifically stating, as it pertains to this case, that “one can practice family medicine without board certification.” However, since the defendant never fully disclosed his status as a family practice doctor until he submitted a Certification with his motion to dismiss after the time to file an Affidavit expired, the Court recognized that “[t]his case represents a perfect example of the pitfalls facing a plaintiff’s attorney and of the need for timely Ferreira conferences.” Had such a conference been held by the trial Court in Buck, the Supreme Court acknowledged that it would have likely led to the timely filing of an Affidavit of Merit from a family medicine specialist and “obviated the need for the summary-judgment motion that led to the dismissal of plaintiff’s cause of action.”
In a case involving an unauthorized autopsy of a deceased child by UMDNJ employed pathologists following a termination of pregnancy at Robert Wood Johnson University Hospital, the defendant hospital moved to be dismissed from the case arguing it did not employ the UMDNJ employees. While true, the United States District court for the District of New Jersey (Joel Pisano USDJ) ruled that the hospital may be liable for the negligent conduct of the UMDNJ employees pursuant to the doctrine of “apparent authority” established in the case of Cordero v. Christ Hospital, 403 N.J. Super. 306 (App. Div. 2008).
In Thompson v. Robert Wood Johnson University Hospital, 2011 U.S. Dist. LEXIS 63980, Judge Pisano concluded that, utilizing the theory of “apparent authority” pronounced in Cordero, “there is no evidence that RWJ informed plaintiffs that the pathology department at the hospital was contracted out to UMDNJ or that plaintiffs were given an opportunity to select or reject the care provided by the pathology department.” In such circumstances, “a juror could find that plaintiffs formed a reasonable belief that the doctors in the pathology department were agents of RWJ,” leaving open the opportunity for plaintiffs to obtain a verdict against the hospital for the unauthorized autopsy performed by the UMDNJ employed pathologists.
Court Rules “Affidavit of Merit” Not Required in Claim against Psychiatrist for Failure to Report Child Abuse
The United States District Court for the District of New Jersey recently ruled that, while an Affidavit of Merit must normally be served in action for negligence or malpractice against a licensed psychologist and that the failure to timely do so may result in the action being dismissed pursuant to NJSA 2A:53A-27, such an Affidavit is not required in a lawsuit filed against a licensed medical professional where the allegation stems from the failure of the physician to report child abuse as required by NJSA 9:6-8.10,
In the matter of Carter v Lewis, 08-cv-1301, District Court Judge Joel A. Pisano ruled that New Jersey has a reporting statute that states that any person having reasonable cause to believe that a child has been abused has a duty to report such abuse to the Division of Youth and Family Services. This reporting requirement applies to all citizens, not just health care providers. As a result, plaintiff’s claim in Carter against Dr. Jeffrey Allen does not sound in professional negligence, thereby triggering the requirement to serve an Affidavit of Merit, but, rather, is a claim based only in ordinary negligence as the reporting statute in question applies to everyone. As such, there is no requirement that an Affidavit of Merit be served.
Therefore, the Court also ruled that Dr. Allen’s attempt to dismiss the plaintiff’s complaint for failure to serve an Affidavit of Merit must be denied.
New Jersey’s Affidavit of Merit Statute requires that an Affidavit of Merit be served within 60 days of a defendant’s filing an Answer, and, no later than 120 days if leave to file is sought and good cause is shown. NJSA 2A:53A-27. If, after expiration of 120 days, an Affidavit of Merit is not served, a plaintiff’s case can be dismissed with prejudice; a dismissal “without prejudice” may occur if extraordinary circumstances are present. Attorney inadvertence (i.e., a mistake by the lawyer) will not result in a dismissal “without prejudice,” but will generally result in a dismissal with prejudice. However, under New Jersey State Court procedural law, the Supreme Court decision of Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (NJ 2003), requires a case management conference early in the stages of malpractice actions to address sufficiencies and/or deficiencies in a plaintiff’s Affidavit of Merit. At such a conference, a Court may, for example, give additional time to a plaintiff to correct a deficient Affidavit.
In Vitale v. Carrier Clinic Inc., 2010 U.S. App. LEXIS 25855, the 3rd Circuit Court of Appeals of the United States, ruled that a District court’s failure to hold a so-called “Ferreira conference” where a proper Affidavit of Merit was not timely served by a plaintiff in a medical malpractice case will not toll the 120 day time-limit prescribed by the legislature. In that case, the plaintiffs malpractice action against the Carrier Clinic was dismissed as a) an Affidavit of Merit timely served by plaintiffs was not by an appropriately licensed specialist, and, b) an Affidavit of Merit served by an appropriately licensed specialist was not timely. The plaintiffs appealed, complaining that the District Court failed to hold a Ferreira Conference, at which time they may have been afforded additional time to serve an Affidavit from an appropriately licensed person. The 3rd Circuit rejected this argument, explaining that a Federal District court is not required to follow the case management procedures imposed on New Jersey state trial courts by the New Jersey Supreme Court. Hence, practitioners are forewarned to serve an Affidavit of Merit of an appropriate specialist in a medical malpractice case filed in NJ Federal Court or face having their case dismissed with prejudice.
I was recently on trial in Monmouth County on a medical malpractice case involving a birth injury known as an Erb’s Palsy. This is an injury to the brachial plexus which typically occurs at delivery when there is a shoulder dystocia (stuck shoulder) following delivery of the head, where the obstetrician pulls too hard on the head during the delivery, stretching and tearing the brachial plexus (nerves coming out of the cervical spine and running into the shoulder and arm). The defendant obstetrician was Sardana Belkin M.D., formerly with an OB/GYN group in Holmdel.
We were able to establish that there were four risk factors for a stuck shoulder in this case, ie, the baby’s weight of 9lbs 1 oz (larger babies tend to get stuck more often), the mom’s weight at delivery (maternal obesity increases the chances of a large baby), a prior concern of a large baby in a prior pregnancy, and, the fact the multiparous woman (more than one child) tend to have larger babies. Given these risk factors we were able to show that Dr. Belkin should have performed an estimated fetal weight by ultrasound at the time of the last office visit before surgery; had that been done it would likely have shown the baby to be large and would have prompted a conversation with the parents about the risk of shoulder dystocia and the option for a c-section. The mom in this case testified she would have opted for a c-section had she known the approximate size of the baby and the risk of a stuck shoulder. Had a c-section been done, the shoulder dystocia would never have occurred and the baby very likely would have been born without any injury.
Additonally, when the shoulder became stuck at delivery, there was evidence that Dr. Belkin applied traction which was excessive, as observed by the child’s father, and the child was born with a left brachial plexus injury (same side as the stuck shoulder).
The child has not had surgery and by the time of trial was 7 years old. She had received PT and OT in the past and had improved significantly since birth, but yet had some permanent, but mild, limitations of her left upper arm, which were demonstrated to the jury through the testimony of a pediatric neurologist.
Prior to trial the doctor refused to consent to settle, but subsequently changed her mind during trial. However, her insurance company was only willing to offer $125,000.00 to settle the case, contending the young girl’s injury was too mild. The jury returned a verdict in favor of plaintiff and against Dr. Belkin, finding that she was negligent, and awarded damages in the amount of $450,000.00. With pre-judgment interest, the young lady’s recovery will exceed $560,000.00.
Magnetic resonance imaging (MRI) scans are widely used by doctors throughout the United States to provide detailed body imaging to help identify and diagnose medical conditions. In providing greater contrast between the soft tissues of the body than computed tomography (CT) scans, MRIs have proven to be significantly useful. However, the Food and Drug Administration (FDA) has recently warned doctors that some contrast agents injected into patients who have kidney disease prior to their MRI scan may lead to a rare and occasionally fatal disorder.
According to an MSNBC report, the FDA is adding the strongest warning label to imaging agents containing gadolinium, stating that they should not be used in patients with weakened kidney function. “Nephrogenic fibrosing dermopathy” has been reported in patients with kidney problems who were given the gadolinium agent. This condition, although rare, can be fatal in some cases as it causes a patient’s skin to harden, as well additional tissue growth on joints, eyes, and internal organs. Although a kidney transplant may slow the disease and even reverse it in some instances, there is no known treatment for nephrogenic fibrosing dermopathy.
Five contrast agents have been used for MRI scans since the FDA approved them in 1988. The nephrogenic ailment has been reported from the use of all five agents. However, the FDA has noted that the following three agents present the highest risk: Bayer Healthcare’s Magnevist, General Electric Healthcare’s Omniscan and Covidien’s Optimark.
Included among the responsibilities of a radiologist and/or ordering physician, is to ensure that pharmaceutical agents are used safely, and, not in circumstances where the patient’s life may be put at risk. With the new warning label for MRI agents, physicians must make sure that patients with kidney conditions do not receive gadolinium before being scanned. The new FDA label has been reported to reinforce already existing doctor recommended guidelines for screening patients for kidney problems before administering the MRI contrast agents. Patients with weakened kidney function who were not adequately screened and now suffer from the complications of nephrogenic fibrosing dermopathy as a result may be entitled to legal recourse.