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Medical Malpractice

I/M/O Suspension or Revocation of the License of Dara, A-1110-11T4, A-4861-T4

By Attorney Michael B. Zerres on March 12, 2014

In this administrative law action, Parvez Dara, M.D., appeals from the decision of the New Jersey Board of Medical Examiners revoking his medical license and ordering him to pay $30,000 in penalties. Dara also appeals the Board’s award of $372,029.28 in fees and costs to the State. The administrative penalties arose due to allegations that Dara had harmed his patients and employees by failing to implement proper infection control procedures. The Attorney General filed a Complaint with the Board against Dara, alleging that Dara neglected to maintain sanitary conditions or develop proper policies and procedures, improperly handled medication, and inadequately supervised staff, thereby resulting in a risk of harm, and actual harm, to his patients.

The second Count of the Complaint further alleged that Dara, despite having been on notice, repeated and deliberately violated Occupational Safety and Health Administration (OSHA) standards regarding toxic and hazardous substances, thus posing a danger to public health. Specifically, there were allegations that 29 of Dara’s patients had contracted Hepatitis B, stemming from his practice. When investigators from OCHD (Ocean County Health Department), DHSS, and the Board of Medical Examiners, inspected Dara’s office and interviewed his staff, they discovered that staff members often failed to change their gloves after performing invasive procedures, Dara failed to provide policies or procedures for the proper use and storage of medications and the office possessed neither a written infection control manual nor proper infection control policies and procedures. An expert testified that each of these breaches was significant, and, had been associated with outbreaks of diseases in the past. The expert opined to a reasonable degree of medical certainty that those patients infected with Hepatitis B suffered actual harm as a result of Dara’s improper practices. Read the rest »

Posted in: Medical Malpractice

Estate of Edwards v. Clara Maas Medical Center, ESX-L-4808-11

By Attorney Michael B. Zerres on March 10, 2014

This medical malpractice action arises out of the alleged negligent treatment of plaintiff’s decedent at Clara Maas Continuing Care Center (CMCCC). Plaintiff’s decedent alleges that while a patient at CMCCC, he developed severe bed sores and pressure ulcers due to lack of proper care. The defendants advised plaintiffs’ counsel that the patient’s medical records could not be located. However, after a Ferreira conference, the court ordered defendants to subpoena the medical records from the owner of an off-site facility where they were supposedly stored. Defendants finally provided plaintiffs with a set of records; however, plaintiffs alleged that the records were incomplete. Plaintiffs’ counsel informed defendants’ counsel that the records were not complete, and, as such, insufficient for plaintiffs’ expert to provide an Affidavit of Merit.

Defendants then filed a motion asserting that plaintiffs’ failure to produce an Affidavit of Merit within the statutory time period, along with their failure to file a motion to extend the time period, warranted the dismissal of plaintiffs’ case with prejudice. Plaintiffs opposed defendants’ motion by stating that the defendants’ failure to provide a complete copy of plaintiff’s decedents’ medical records precluded the plaintiffs from timely securing the Affidavit of Merit, and thus, they were entitled to the protections of the Affidavit of Merit’s safety valve provision. The court found that case law provides that it should be presumed that the medical records that were not produced have had a substantial bearing on plaintiff’s preparation of the Affidavit, and, that the burden of establishing otherwise should be borne by the party that has not produced the records. Read the rest »

Posted in: Medical Malpractice

Halper v. St. Barnabas Hospital, ESX-L-5387-10

By Attorney Michael B. Zerres on February 27, 2014

This medical malpractice action arose out of alleged negligent treatment of plaintiff’s decedent while admitted to St. Barnabas Hospital. Both defendant physician and plaintiff’s proffered expert were board certified in Internal Medicine and the subspecialty of Cardiovascular Disease. However, plaintiff’s expert was not board certified in defendant Dr. Nicholas Tullo’s second subspecialty, “Clinical Cardiac Electrophysiology.” Dr. Tullo moved for Summary Judgment, seeking dismissal of the Complaint, due to plaintiff’s failure to provide expert testimony rendered by an appropriately-qualified physician. The issue presented in defendant’s Summary Judgment motion was whether, in a medical malpractice action, an additional subspecialty certification held by a defendant doctor bars the use and testimony of a plaintiff’s expert who otherwise shares the defendant doctor’s professional credentials, but lacks certification in the additional subspecialty. Read the rest »

Posted in: Medical Malpractice

Lyons v. Mohr, A-3985-12T3

By Attorney Michael B. Zerres on February 26, 2014

Plaintiff brought this medical malpractice action as a result of complications suffered following a hysterectomy. Plaintiff attempted to amend her Complaint to include an additional defendant physician, Daniel H. Tobias, M.D. The trial court entered an interlocutory Order denying plaintiff’s attempt to amend her Complaint, finding that the two-year statute of limitations had expired and plaintiff had not demonstrated at an evidentiary hearing that principles of equitable tolling justified an extension of the two-year statute of limitations.

Plaintiffs were then granted leave to appeal the trial court’s order. The Appellate Division, in a decision dated November 27, 2013, reversed the trial court’s order, finding that under the distinctive circumstances of the case, principles of equitable tolling warrant the inclusion of Doctor Tobias as a co-defendant. The Court found that these circumstances included: faulty medical recordkeeping that omitted Dr. Tobias from the operative report as one of the doctors who performed surgery on plaintiff; the lead surgeon’s failure to disclose Dr. Tobias’ involvement to the plaintiff when she consulted him about post-surgical complications; and incomplete, potentially misleading interrogatory responses by co-defendants which masked Dr. Tobias’ involvement. As plaintiff and her attorneys acted reasonably under the circumstances, and had scant reason to believe that another surgeon, Dr. Tobias, participated in the operation, equitable principles justified tolling the two-year statute of limitations. Read the rest »

Posted in: Medical Malpractice

Lee v. Park, 2013 U.S. Dist. LEXIS 152138 (OCTOBER 23, 2013)

By Attorney Michael B. Zerres on February 26, 2014

This action arose out of plaintiff’s allegations that defendant physician negligently disclosed information regarding plaintiff’s use of certain medication to plaintiff’s wife, which enabled her to bring charges of sexual infidelity against him. Plaintiff sought compensatory and punitive damages from the defendant physician for breach of confidentiality, negligence, and negligence per se. Plaintiff further moved for an Order waiving the statutory requirement of an Affidavit of Merit under the common knowledge exception. Read the rest »

Posted in: Medical Malpractice

Troy D. v. Mickens

By Attorney Michael B. Zerres on October 17, 2013

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. Read the rest »

Graham v. Mehta

By Attorney Michael B. Zerres on October 16, 2013

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. Read the rest »

Joyner v. Ortiz

By Attorney Michael B. Zerres on October 14, 2013

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. Read the rest »

Kim v. Ahn

By Attorney Michael B. Zerres on October 11, 2013

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. Read the rest »

Nicholas v. Mynster

By Attorney Michael B. Zerres on July 23, 2013

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 »

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