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.
The Appellate court agreed with the trial court that the plaintiff’s treating physician, Dr. Steinberger, was called as a fact witness and not as an expert witness. Therefore, because Dr. Steinberger was being called as a fact witness, he did not need to be qualified as an expert or provide an expert report.
Specifically, Rules 4:10-2(d)(1) and/or 4:17-4(e), which require that the plaintiff provide an expert report with a complete statement of the expert’s opinions, along with the bases of those opinions, did not apply. The Appellate Division affirmed that, as plaintiff’s treating physician, Dr. Steinberger may testify as to his diagnosis and treatment, including his opinion as to the cause of the patient’s medical condition.
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.
According to the Court, R. 4:10-2(d)(3) states, in relevant part:
“A party may discover facts known or opinions held by an expert . . . who has been retained or specially employed by another party in anticipation of litigation preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.”
The Fitzgerald exception provides that once the identity and opinion of an expert has been disclosed, all privilege is waived. Opposing counsel is then free to rely on that opinion without a showing of exceptional circumstances. Further, the Court held that it was irrelevant that defendant George had not clearly indicated whether Nurse Zimmerman was to actually testify at trial. Moreover, Zimmerman would be free to decline to testify on plaintiff’s behalf if she so chose
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).
In response to this issue, current regulations regarding resident physician work hours have been changed to restrict trainees in their first postgraduate year to a maximum of 16 continuous hours of work, followed by a minimum of eight hours of off-duty time. However, there are no such regulations in place for attending physicians who have completed their training. Many healthcare institutions have policies that prohibit busy doctors from scheduling elective procedures on days following being on call for extended periods of time. The article argues that such policies should be standard practice in the medical community where elective surgery is able to be rescheduled.
A survey found that the majority of patients would be concerned for their safety if they were pre-operatively aware their surgeon had been awake for 24 consecutive hours. Patients would also want to be informed of a doctor’s sleep deprivation. In such circumstances, 80 percent of those surveyed stated that they would ask for a different physician.
The Sleep Research Society (SRS) has endorsed legislation that would make it mandatory for a physician who had been awake for 22 of the previous 24 hours to inform patients of their sleep deprivation and the potential impact on the safety of the patient’s health due to the sleep deprivation. The SRS also recommends that sleep deprived physicians get a patient’s consent before providing them with care or performing any surgical procedures.
If you or a loved one has suffered injury due to a doctor’s negligence, there may be legal options available. To learn more, contact our law office at 973-635-5400 to schedule a no-cost consultation with one of the New Jersey medical malpractice attorneys at Blume Goldfaden.