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Surgical Negligence | New Jersey Medical Malpractice Blog

Jarrell v. Kaul

By Attorney Michael B. Zerres on July 12, 2013

In this medical malpractice action the Appellate Court confirmed a jury finding that defendant physician, Dr. Kaul, M.D., deviated from the standard of care when he performed spine surgery upon the plaintiff. Furthermore, the Appellate court also determined that the plaintiff’s treating physician could provide ‘causation’ testimony without having to be qualified in the same manner as a designated expert witness.

The Appellate Court, at 2013 N.J. Super. Unpub. LEXIS 469 (Decided March 1, 2013), rejected the defendant’s appeal, in which the defense claimed that the plaintiff’s treating neurosurgeon, Dr. Steinberger, was improperly permitted to testify that the plaintiff required surgery because “something” happened during the prior fusion surgery performed by defendant, Dr. Kaul. Read the rest »

Stagg v. Summit Medical Group

By Attorney Michael B. Zerres on February 27, 2013

In this matter. Surgery was performed on plaintiff at ambulatory surgical facility owned by Summit Medical Group. The surgery was a septoplasty, nasal reconstruction and inferior turbinate coblation to correct nasal deformity as a result of a fracture, causing difficulty breathing in plaintiff. The surgery was performed by Dr. Jeffery LeBenger (“LeBenger”), with anesthesia provided by Dr. Tony George (“George”). The surgery was reported as being without injury, although when plaintiff awoke, she reported sharp pain in her left arm, numbness and loss of motion. She was informed that her arm was pinched during surgery, caught between the mattress and rail. rehabilitation. Plaintiff then instituted an action for medical malpractice, claiming that she suffered from immediate compressive neuropathy and radial nerve palsy in her left arm and hand, resulting in constant pain and difficulty performing tasks due to a lack of strength in her left arm. During discovery, counsel for the defendant George amended his answers to interrogatories to indicate that he might call Mary Zimmerman, R.N. (Zimmerman ) as an expert to be relied upon at trial. George then submitted an expert report authored by Zimmerman. Plaintiff, therefore, also indicated that she would adopt Zimmerman’s report and rely on her testimony at trial. Defendant George objected to plaintiff’s intent to call Zimmerman as an expert witness to testify on behalf of plaintiff. Defendant George asserted that he had not yet determined whether Zimmermann would be called as a witness at trial and that he had the sole right to make that determination. Plaintiff argued that under Fitzgerald v. Stanley Brothers, Inc., 186 N.J. 286, 302 (2006) defendant has no right to withhold access to an expert witness simply because he supplied the witness.

The Trial Court ruled that when a party provides an expert’s identity and opinion to an adverse party, the original retaining party waives all rights to deem the information as privileged.. Similarly, it was held that Fitzgerald stands for the assertion that an adversary has the right to produce a willing expert at trial, regardless of the party who originally retained the witness, and, that absent a privilege, everyone has access to a witness. Lastly, in this case, since the expert witness was formally named, the plaintiff did not have to demonstrate the existence of exceptional circumstances in order to call her in plaintiff’s case in chief. Read the rest »

Should Patients Be Informed Before Surgery if Their Doctor is Sleep Deprived?

By Attorney Michael B. Zerres on January 14, 2011

It is widely believed that sleep deprivation impairs performance as severely as alcohol intoxication.

A recent article published by The New England Journal of Medicine discussed the impact a physician’s sleep deprivation has on their job performance, and asserted that patients should be informed of a doctor’s lack of sleep before an elective surgical procedure.

According to the article, there is an 83 percent increased risk of complications (such as an organ injury or massive hemorrhage) in patients who undergo elective surgical procedures performed by an attending surgeon who had less than 6 hours of sleep between procedures (during an on-call night shift). Read the rest »

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