Anderson v. Somberg does not require that a plaintiff prove with absolute certainty that defendants were negligent; only that that the event was “probably” caused by the negligence of the defendants.
The New Jersey Appellate Division was recently called on again to analyze a medical malpractice case in the context of a possible Anderson v. Somberg claim. Here, in Rabinowitz v. Bergen OB/GYN Associates, et. als., docket No. A-3139-08T1, decided June 23, 2010, the Court reviewed whether a young girl born with Tay-Sachs disease, a fatal neurologic condition, and her parents, could successfully sue for medical malpractice. Prior to her pregnancy, the child’s mother was tested for Tay-Sachs by having her blood sent to a laboratory for testing. The results were reported as “normal.” Thereafter, the mother became pregnant and switched obstetricians. In light of her prior “normal” blood test for Tay-Sachs, she had no further testing done. This child was born healthy. However, 2 years later, she became pregnant again and that child, a daughter, tested positive for Tay-Sachs. A subsequent blood test on the mother reported that she was, indeed, a carrier for Tay-Sachs.
Plaintiffs claimed that a negative Tay-Sachs test result on the mother, when, in fact, she was a carrier, could only have occurred if there was negligence in the testing process, either by the doctor’s office or by the lab. However, the plaintiffs’ experts conceded that a biochemical anomaly in the mother’s blood could have also resulted in an improper test result, although such a possibility was very unlikely.
The defendants moved for Summary Judgment contending that there was inadequate proof that it was the negligence of any defendant that resulted in the testing error. Plaintiffs countered that they were entitled to rely upon the doctrine of res ipsa loquitur and the burden shifting doctrine as set forth in Anderson v. Somberg, 67 NJ 291, cert denied, 423 US 929 (1975). Relying on Chin v. St. Barnabas Medical Center, 160 NJ 454 (1999), the trial Court concluded that the plaintiffs had to show with “certainty” that one or all of the defendants were negligent in order for Anderson v. Somberg to apply. However, the Appellate Court stated that “few things, if any, are known with absolute certainty,” and the trial Court’s requirement that there be “certain” negligence was error. Rather, a plaintiff only need that there was “probable” negligence for Anderson v. Somberg to apply. As a result, the matter was remanded to the trial level for further proceedings.
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