Vascular Surgeon Not Qualified to Testify Against Family Practitioner Who Performed a Vascular Procedure – Afonso v. Bejjani – A-1623-15T4

By Michael Zerres

In this matter, decided on November 29, 2016, the Appellate Division ruled on yet another malpractice case involving the application of the New Jersey Medical Care Access and Responsibility and Patients First Act (“Patients First Act”), set forth in N.J.S.A. 2A:53A-41, and, held that the plaintiff’s proposed expert testimony was correctly excluded because said expert was not a family medicine specialist like the defendant. The case arises when two family practitioners, Drs. Ricci and Bejjani, both co-defendants, performed a phlebectomy upon plaintiff. A phlebectomy is the removal of varicose veins through small puncture sited in the skin using a surgical hook. The phlebectomy was performed on both of the plaintiff’s leg, each physician taking one leg. The result included an emergency room visit by the patient, with multiple infected wounds.

Dr. Ricci took the position that he was acting as a family medicine specialist when he operated on the plaintiff’s leg. However, Dr. Ricci’s deposition testimony gave the impression that the medical specialty “involved” in conducting phlebectomies was that of vascular surgery. As a result, plaintiff’s counsel retained a vascular surgeon as an expert witness against him. Dr. Ricci’s counsel relied on the Patients First Act to move to exclude plaintiff’s expert from testifying as a vascular surgeon in support of plaintiff’s claims of deviation from the standard of care. The trial Court agreed and barred plaintiff’s expert from testifying. The Court also entered summary judgment in defendants’ favor, as there was no expert who could establish a prima facie case against them.

The Appellate Court, in addressing plaintiff’s appeal, noted that any expert presented must specialize in the same specialty as the defendant physician. The Court also found that a phlebectomy can be performed by a family medicine specialist as well as a vascular surgeon. While there was confusion concerning the specialty of the defendants, the Appellate Division nonetheless affirmed the trial Court’s exclusion of the plaintiff’s proposed expert, but also vacated the entry of summary judgment and remanded the matter to the trial Court to afford the plaintiff a reasonable opportunity to obtain an appropriate substitute trial expert specializing in family medicine.

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