Medical Malpractice

It's not uncommon during the trial of any medical malpractice case for a lawyer to try and cross-examine an opposing expert witness with a medical publication, or "learned treatise," that contradicts or refutes that expert's sworn testimony. A cagey medical expert can try and deflect such tactics by claiming not to recognize the publications as 'reliable' or 'authoratative.' That way, the expert can try and prevent the lawyer from asking him or her about the contents of an article or text that is intended to poke holes in the expert's opinions. Not so fast, said the Appellate Division in the March 26, 2009 decision in Mohrle v. Kim (A-4509-07T2)

In this case, the expert for the plaintiff criticized Dr. Kim for the manner in which he performed an excisional breast biopsy. When confronted with a textbook on Breast Disease, the expert refused to acknowledge it as an authority, and the plaintiff (after an adverse result), complained that, as such, it should not have been used in cross-examination of the expert. Of course, the text validated Dr. Kim's testimony on how an excisional biopsy ought to be done, and, strongly refuted the plaintiff's expert's testimony to the contrary.

No foul said the Appellate Division, clarifying that the very purpose of the so-called "learned treatise" rule (NJ Rule of Evidence 803(c)(18)) was to allow its admissibility so long as ANY WITNESS at the trial recognized it as a reliable publication. This would allow its use in cross-examination of an expert, who knowing its potentially harmful contents, tried to block its use by claiming it not be reliable.

Of course, the expert can still disagree with its contents, and, then, it is for the jury to evaluate the expert' s credibility, given all of the evidence and circumstances in the case, in light of any contradictory statements contained in a publication.

The recent Appellate Division decision in Yodzis v. Health Net (2/26/09) reminds us that it is only in the rare circumstance, when an HMO doctor actually provides treatment, or, is the employer of a treating physician, that a patient may sue an HMO that is governed by ERISA for medical malpractice.

Many HMOs are, in fact, governed by ERISA (the Employee Retirement Income Security Act of 1974). ERISA provides, rather unfairly, a broad based pre-emption against medical malpractice claims made in State Court for negligent decisions made by HMO physicians in determining whether or not care ought to be provided to a patient under the terms of the HMO plan.

Many times such plans only allow for treatment deemed "medically necessary and appropriate." In Yodzis, the patient's vascular surgeon requested that he undergo an arteriogram and endarectomy to help reduce the risk of a future stroke. Pre-authorization was sought from Health Net, which was denied, because it was claimed the patient had a history of alcohol abuse which first had to be treated. As a result, the proposed surgeries were cancelled. Additionally, Mr. Yodzis' Coumadin, a blood thinner, had also been discontinued in anticipation of the proposed surgeries. Delays continued in the scheduling of the surgeries and the plaintiff remained off his Coumadin, and, approximately one month later he suffered a severe, disabling stroke.

In rejecting the patient's claim against the Health Net physicians for medical malpractice in denying the request for necessary surgeries, the Court held that such claims are, unfortunately, barred by the pre-emptive language of ERISA. Courts have interpreted this language to mean that managed care decisions made by non-treating HMO physicians in denying care to a patient cannot be the basis of a State Court malpractice claim.

The one apparent exception to this broad based pre-emptive doctrine is when a treating physician is employed by an HMO and makes an administrative decision that also requires the exercise of medical judgment. Thus, the HMO can be liable only when it's employee physician is an actual treating physician, a rare occasion. While the Court acknowledges that such restrictions seem unfair, it is only through changes in the federal ERISA law that will allow a patient who is an ERISA based HMO plan to sue the plan's doctors for negligently denying or delaying benefits. Patients who participate in plans not governed by ERISA do not have such limitations, and, New Jersey's own Health Care Accountability Act (NJSA 2A:53A-30 to 36) allows for a medical-malpractice type action against a non-ERISA HMO for benefit denials and delays.

On October 29, 2008, the NJ Appellate Division, in a case I am actually handling, made it clear that hospitals can be liable for the neglect of a so-called 'independent contractor' physician if it is not made clear to the patient that the physician is not a hospital employee.

In the unfortunate matter involving the Estate of Ramona Cordero v. Dr. Zaklama and Christ Hospital, it was held that, under the doctrine of "Apparent Authority" an anesthesiologist who does not disclose to a patient that she is an independent contractor may be reasonably assumed by the patient to be a hospital employee, and, thus, hold the hospital responsible for the neglect of that doctor as an agent or employee of the hospital. In this case, my clients wife/mother underwent a relatively simple surgical procedure at Christ Hospital, namely, the insertion of a catheter so that she could receive hemodialysis. Prior to the procedure, she was introduced to Dr. Selvia Zaklama, an anesthesiologist on staff at the hospital, who was employed by Hudson Anesthesiology - a group contracted by the hospital to provide anesthesia services to patients admitted at the hospital. Without any information to the contrary, Ms. Cordero assumed that this physician, who was provided by the hospital, was employed by the hospital. Unlike her attending physician, Ms. Cordero had no prior relationship with this doctor, who was randomly assigned to provide anesthesia for the surgery. In fact, the doctor wore a name tag with the name "Christ Hospital" on it, and, the hospital listed her as one of its anesthesiologists on its website. During the short surgery, Dr. Zaklama failed to timely intervene by administering quick acting medications when Ms. Cordero's blood pressure began to drop; as a result Ms. Cordero went into cardiac arrest, restricting the flow of oxygen to her brain, and, causing her to become permanently brain damaged. After remaining in a vegetative state for 3 1/2 years, she died as a consequence of her brain injury.

The Appellate Division, in Cordero v. Christ Hospital, ruled that where a physician on staff at a hospital, such as a anesthesiologist or emergency room doctor, does not make it clear to the patient that he or she does not work for the hospital, but is an independent contractor, it is reasonable for a patient to assume that the hospital has supplied that doctor, rendering the hospital vicariously liable for the fault of the physician under a doctrine known as "respondeat superior".

Quoting the Court, "Imputation of liability based on apparent authority prevents a principal from "choos[ing] to act through agents whom it has clothed with the trappings of authority and then
determin[ing] at a later time whether the consequences of their acts offer an advantage." Restatement (Third) of Agency, § 2.03 comment c (2006). On that ground, a principal is vicariously
liable for its agent's tortious conduct "when actions taken by [an] agent with apparent authority constitute the tort . . . ." Id. at § 7.08; see id. at comment b (discussing the rationale for tort liability based on apparent authority). When a
hospital's conduct permits a patient to "properly assume" a doctor is rendering treatment in behalf of the hospital, principles of apparent authority prohibit the hospital from avoiding liability by relying on "secret limitations . . . in a private contract between the hospital and the doctor."

In this case, while the family has obtained a settlement against the doctor and her group, they are now permitted to proceed with their case against the presumed employer of the doctor, Christ Hospital - who, has prior to the Appellate Division's decision, denied any responsibility for the conduct of Dr. Zaklama. It would also seem that if Dr. Zaklama is regarded as an agent\employee of the Hospital, it must now provide her with its liability and excess insurance coverage, and, its exposure would the same as it would be for an other employee. In fact, in at least one other case I have handled involving an "apparent authority" issue (that one involving an emergency room physician) I have successfully recovered over and above the hospital's statutory "cap", since the hospital was considered the 'employer' of the physician, and, would have been vicariously responsible for any damages awarded against the ER physician.

In the last couple blog entries, I discussed the frequently litigated issue of timely filing an Affidavit of Merit in a professional malpractice case.

As I stated below, in a malpractice case against someone like a physician, an Affidavit of Merit of a properly credentialed physician is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case, and, can result in the case being dismissed. Affidavits of Merit also apply to other professionals as well: nurse, pharmacists, engineers, architects.

As I also stated below, at the trial court level, the Courts, as mandated by the Supreme Court in Ferreria v. Rancocas Orthopedic, should conduct an accelerated case management conference within 90 days of the filing of an Answer to address the sufficiency of a plaintiff's affidavits of merit, and, that the failure to timely hold one may result in an otherwise late served Affidavit of Merit to be considered served on time.

In another decision on the timely filing of an Affidavit of Merit, this one involving Accounting malpractice, attorneys are again reminded that where an Affidavit of Merit is not timely served, but where a Ferreira conference is not scheduled, the failure to hold a Ferreira conference will be a bar to the dismissal of the lawsuit.

On July 3, 2008, in the matter of Fairfield Bd. of Educ. v. Doerr, the trial Court in Essex County (Judge John Kennedy), reiterated that had, a Ferreira conference been held - as it is required to be in any professional negligence claim - any defects in the proper service of an Affidavit of Merit could have been addressed in a proper way. As such, the failure of the Court to schedule such a conference would be a reason to prevent the disimissal of a case for failure to properly serve such an Affidavit.

On April 21, 2008, the NJ Appellate Division published a decision involving a Walgreen's pharmacist who filled a patient's prescription incorrectly: in Bender v. Walgreen Eastern Co. Inc., the pharmacist was asked to fill a prescription for "Primidone," but mistakenly gave the patient a prescription for "Prednisone" - a steroid. Apparently, the patient took the steroids that were provided and suffered injuries.

Normally, in a malpractice case against a pharmacy or pharmacist, an Affidavit of Merit of a licensed pharmacist is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case, and, can result in the case being dismissed.

However, in Bender, the Court, finding the pharmacist's error was akin to a dentist pulling out the wrong tooth, ruled that giving a patient the wrong medication as was done by the Walgreen's pharmacist, is such an obvious error that the "common knowledge" doctrine would apply. In other words, no expert was needed to explain that giving the wrong medication was an error, as such a blunder would be something that jurors could figure out without the need for expert testimony. Relying, therefore, on Hubbard v. Reed, 168 NJ 387 (2001), the Court ruled that since there was no need for expert testimony on the issue of the pharmacy's negligence, there was also no requirement that an Affidavit of Merit be provided.

Serving an Affidavit of Merit in most medical malpractice suits is a pre-requisite for the case to go forward. http://www.njatty.com/affidavit_of_merit.html

For example, in a suit against an obstetrician, a plaintiff must normally serve an Affidavit of Merit of a qualified obstetrician within 60 days of the filing of an Answer by the defendant or risk having the case dismissed.

NJSA 2A:53A-26, the Affidavit of Merit statute, provides a list of 15 specified licensed persons, such as physicians and nurses, for whom an Affidavit of Merit must be provided if such a licensed professional is sued. However, in the recent case of Saunders v. Capital Health System, decided by the Appellate Division on 3/5/08, the Court held that since the Affidavit of Merit statute does not specifically list a certified nurse midwife as a 'licensed person' for whom an Affidavit of Merit is required, one need not be provided by the plaintiff. As a result, the failure to serve one will not result in dismissal of a plaintiff's lawsuit.

In addition, the Court reminded that, at the trial court level, the Courts, as mandated by the Supreme Court in Ferreria v. Rancocas Orthopedic, should conduct an accelerated case management conference within 90 days of the filing of an Answer to address the sufficiency of a plaintiff's affidavits of merit, and, that the failure to timely hold one may result in an otherwise late served Affidavit of Merit to be considered served on time.

In Tepper v Urdinaran, the NJ Appellate Division on 3/5/08 ruled that in a medical malpractice case alleging a delay in diagnosing a woman's colon cancer, the inadvertent submission to the jury of a highlighted medical report not properly moved into evidence was sufficient to require a new trial.

Normally, after attorney summations, it is required that both plaintiff and defense counsel review the documents submitted into evidence to make sure a) all of the evidence that should be given to the jury is actually provided to them , and, b) that any documents not moved into evidence be EXCLUDED from the materials submitted to the jury.

Unfortunately, in Tepper, there was a report, authored by the defendant and sent to a referring physician, that was never moved into evidence, but, nonetheless was somehow given to the jury. The document, which had been referred to by both counsel during trial, had, additionally, certain language which was the subject of one of the legal disputes in the case underlined and circled. The Appellate Division concluded that the document, which should never have been provided to the jury, had the capacity to influence the jury to reach a conclusion it otherwise might not have reached, and, that, as a result, the case would have to be tried again.

In a recent, non-medical malpractice decision, the Appellate Division ruled that a 911 operator is not immune for his/her neglgient conduct in carrying out "ministerial" duties. While not a medical malpractice case, the Court's decision in Massachi v. AHL Services, 2007 N.J. Super. LEXIS 343 (November 15, 2007) has clear application in such cases.

In Massachi, a City of Newark 911 operator failed to follow written guidelines, and, wrote down incorrect information regarding a kidnapping of a student outside of Seton Hall University. Because of these "ministerial" failures, it was claimed that the kidnapper (the student's ex-boyfriend) was allowed to escape with the victim, and, later murder the victim in his apartment in Westfield. The Appellate Court concluded that NJSA 59:3-2 (part of the Tort Claims Act) does not exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions, i.e., a function performed in a prescribed manner without the need to exercise judgment regarding the task being done.

Applying the Court's rationale to a potential medical malpractice claim, it would now seem that 911 operators would not be immune under the Tort Claims Act, in the case of a medical emergency, if he/she failed to record data during a 911 call in an accurate matter and/or follow prescribed guidelines, and, such negligence results in a delay that causes the person suffering the medical emergency to suffer harm.

Cervical intraepithelial neoplasia is the abnormal growth of precancerous cells in the cervix. Most such cases remain stable, or, are eliminated by the host's immune system without intervention. However a small percentage of cases progress to become cervical cancer - which is the second most common cancer in women worldwide - despite the availability of PAP testing for at least the last 50 years.

The major cause of cervical intraepithelial neoplasia lesions is infection with the sexually transmitted human papillomavirus (HPV). A recent study in the New England Journal of Medicine shows that HPV testing is more sensitive than standard PAP smear testing for the screening of cervical-cancer precursors. In fact, HPV testing was almost 40% more sensitive that testing by PAP smear.

The trial, conducted by Dr. Marie-Helene Mayrand and colleagues at McGill University in Montreal, concluded that while the sensitivity of PAP testing for Grade 2 or 3 pre-cancerous cervical lesions was 55.4%, the sensitivity of HPV testing for the same lesions was 94.6%.

The results clearly suggest that, in addition to routine PAP screening, women should incorporate HPV testing as a screening tool for pre-cancerous cervical lesions. The availability of such dual screening would likely reduce the incidence of cervical cancer, as the pre-cancerous lesions identified during screening tests can be surgically removed with a laser before they develop into a true malignancy.

Everyone is probably familiar with the fact that newborn infants are routinely screened for hypothyroidism. Well, not only is it routine, it is mandatory. Since 1977, hypothyroidism, and over time, a number of other potential debilitating disorders are required to be screened in all newborn infants born in New Jersey.

The state legislature has wisely mandated the testing of newborn infants for the following preventable and treatable biochemical disorders, which - if left untreated - could cause mental retardation or other permanent disbilities:

HYPOTHYROIDISM
GALACTOSEMIA
PHENYLKETONURIA
SICKLE CELL ANEMIA
MAPLE SYRUP URINE DISEASE
CONGENITAL ADRENAL HYPERLASIA
CYSTIC FIBROSIS
BIOTINIDASE DEFICIENCY
MCAD, SCAD, LCAD AND VLCCAD DEFIFICIENCY
CITRULLINEMIA
ARGINOSUCCINIC ACIDEMIA
METHYLMALONIC ACIDEMIA
PROPIONIC ACIDEMIA
GLUTARIC ACIDEMIA TYPE I
ISOVALERIC ACIDEMIA
3H3MCoA LYASE DEFICIENCY, AND,
3MCoA CARBOXYLASE DEFICIENCY

If diagnosed on a screening test, these conditions must be treated promptly.

A recent study in the October 4, 2007 edition of the New England Journal of Medicine reported that non-invasive, or computed tomographic colonography (CTC - or virtual colonoscopy) was just as effective as invasive colonoscopy (OC -optical colonoscopy) in screening for colon cancer - without the risk of colon perforation sometimes associated with invasive colonoscopy.

Colon and rectal cancer account for an approximate 55,000 deaths annually. It has been well-settled that a screening optic colonoscopy in patients 50 years of age or older is an effective tool for detecting pre-cancourous colon polyps and is the standard of care in screening for colon cancer in such patients.

A team of physicians led by David H. Kim, M.D. at the University of Wisconsin Medical School in Madison reiterated that "removal of detected advanced adenomas (defined as having a size of at least 10mm, the presence of a substantial villous component, and, the presence of high grade dyplasia) effectively disrupts the potential pathway to the development of cancer that is believed to be responsible for the majority of colorectal carcinomas." In the study of Kim and colleagues entitled "CT Colonography versus Colonoscopy for the Detection of Advanced Neoplasia," 3120 adults with a mean age of 57.0 +/- 7.2 years were screened with CTC and 3163 adults with a mean age of 58.1 +/- 7.8 years were screened with OC. The results? 123 advanced neoplasms were found in the CTC group, and, 121 in the OC group. Additionally, there were 7 colonic perforations in the OC group and none in the CTC group.

This study supports the use of CTC as the primary screening tool in the detection and prevention of colon cancer. Colon cancer, which has an identifiable precursor lesion, i.e., advanced adenomas, allows for the possibility of cure rather than mere cancer detection alone. If detected by either CTC or OC, advanced adenomas should be removed. Removal of these polyps has proven to be "the most effective approach to cancer prevention."

Currently, I am handling the case of a young woman who underwent gastric bypass surgery and developed a Petersen's hernia, i.e., a hernia of the small intestine into the mesentery. The hernia required emergent surgical repair, but the repair was alleged to have been done incorrectly, resulting in additional surgeries, extensive loss of bowel and significant, disfiguring scarring. During the investigation of the case, it was learned that the patient's original bypass surgeon sent letters to his patients advising of the risk of Petersen's hernia, and, posted similar information on his website. I share that information here because of the potentially devastating consequences of delayed or improper treatment of a Petersen's hernia:

A small percentage of patients who have undergone gastric bypass surgery will develop severe abdominal pain due to internal hernias. This condition is called a Petersen's hernia and must be treated surgically on an emergency basis.

When patients lose a significant amount of weight, the fatty tissues in the abdomen decrease in size. In some patients, the position of the intestine can shift within the abdomen and become twisted and obstructed.

If you should develop abdominal pain you must seek medical attention immediately. Petersen's hernia can be successfully treated and full recovery is to be expected. Time is of the essence however. If there is a delay in diagnosis and treatment beyond a few hours, there is the potential for loss of a significant portion of the small intestine and even death.

It is important that you be aware of this condition. If you develop abdominal pain, you must immediately seek medical attention and inform your physician that you have undergone gastric bypass surgery. You should also tell them that you have been informed about the potential for a Petersen's hernia and wish to be examined by a surgeon on an emergency basis.

While the incidence of this condition is relatively low (less than 5% of patients who have undergone gastric bypass surgery), it is a serious development that must be treated very quickly.

On March 29, 2007, an article published in the New England Journal of Medicine suggested that, in patients being treated for unilateral breast cancer, MRI screening of the opposite breast led to an increased detection of cancer in the opposite breast. This study received a lot of attention in the media/press and begs the question: Is it now standard of care for practioners to screen the opposite breast with an MRI when a patient is being treated for unilateral breast cancer?

The short answer is: probably not. Why? The results of the study indicate that of 969 women who were enrolled, only 3.1% were actually diagnosed with cancer in the opposite breast as a result of the use of MRI imaging. Further, while it is certainly a good thing to improve the detection of cancer with the addition of MR imaging, and some practioners may now implement this tool in their practice, the authors conclude: "The current cost of MRI precludes its widespread use in general populations..." As such, and because of the limited success of the MRI as a screening tool, it probably will not become the standard of care until further studies confirm its cost-effectiveness.

On March 12, 2007 the Appellate Division decided the case of Gronostajski v. Sabin, et. als., confirming that the principles of Anderson v. Somberg would apply even in a emergent "Code" situation. In Anderson, the patient was having back surgery, and, during the operation, a piece of one of the surgical instruments broke off and lodged in the spinal canal. None of the defendants, including the surgeon, the hospital, the manufacturer and/or the distributor of the instrument, accepted responsibility for the fact that it broke during the surgery. There, the Court held that if a patient is unconscious or helpless and suffers from a mishap not reasonably forseeably related to the surgery (such as in the case of a foreign body left in a patient), then it is up to the defendants to prove that each was not at fault for causing the injury. In other words, the burden of proof shifts from the plaintiff to the defendants.

In Gronostajski, the patient 'coded' and during the code a guide wire was inserted in the groin to introduce a catheter. Unfortunately, the guide wire was mistakenly never removed, and, the patient alleged he suffered numerous complications and died as a result. No one who participated in the 'code' admitted responsibility for leaving the guide wire behind. The defendants argued, in part, that the principles of Anderson do not apply in a sudden, emergency situation like a 'code,' and, that the failure to remove the guide wire constituted 'excusable neglect' in such a setting. The Court disagreed, finding that Anderson applies, as the patient was both unconscious and helpless when the guide wire was left in his groin, and, that all of the people who participated during the 'code' were named as defendants. Further, the Court ruled that merely because this was an emergency did not mean the defendants could exonerate themselves as the hospital, Robert Wood Johnson University Hospital, is a major teaching institution and there were numerous experienced physicians and medical personnel present who are paid and trained to deal with such emergencies. In such a situation, the burden of proof then switched to the defendants to essentially disprove that each was at fault for leaving the guide wire behind.

In Harris v. Hecht, decided on January 23, 2007, a dental patient's malpractice verdict was allowed to stand following an appeal by the doctor.

Mr. Harris had undergone surgery to remove his lower wisdom teeth. Prior to the surgery, he was shown a 12 minute videotape entitled "Informed Consent For Patients" which described the procedure and describing risks of the surgery, which included numbness to the lip, chin and tingue. The video also referred to potential injury to the inferior alveolar nerve, a sensory nerve in the lower jaw.

The patient, Mr. Harris, however, sustained an injury to lingual nerve, which controls sensation to the tongue. This injury was not described as a risk of surgery on the doctor's videotape. As a result of the injury, the patient had to undergo nerve repair and it was discovered that the lingual enrve had been transected. Even after the nerve repair, Mr. Harris continued to suffer from numbness on the left side of tongue, leaving him without a sense of taste on that side and causing him to often bite his tongue while chewing food.

At trial and on appeal, the patient prevailed, as the defense claim that injury to the lingual nerve was a known risk of wisdom tooth surgery was not accepted.

In a Delaware medical malpractice case, it was discovered that a NJ general surgeon misrepresented his credentials. The surgeon, Dr. Eric Munoz, is also a NJ legislator. Previously, he had proposed a law that requires an expert in a medical malpractice case in NJ to be board certified in the same specialty as the doctor being sued and to have devoted the majority of his professional time to the practice of that same specialty.

Apparently, what should be the law in NJ does not apply to Dr. Munoz when he testifies in other states, as in the Delaware case, Dr. Munoz tried to pass himself off as a board-certified specialist in Emergency Medicine in a case there against an ER doctor.

In Sammons v. Doctors for Emergency Services, Dr. Munoz submitted an Affidavit of Merit which was kept under seal during the pendency of the litigation. Delaware law, similar to NJ law, requires an Affidavit of Merit as to each defendant signed by an expert witness, who is board certified in the same field as the defendant. At trial, the defense prevailed. Suspicions arose about the Affidavit of Merit filed under seal as to the ER defendants as plaintiff did not produce an ER expert at trial. Instead, Dr. Munoz, a surgeon, was plaintiff's only expert against the ER defendants. At trial, Dr. Munoz admitted he had never been board certified in ER medicine even though he falsely represented that he was on his website. The Court, believing it had may have misled, reviewed the Affidavit of Merit filed under seal as to the ER defendants (which had been signed by Dr. Munoz) and found that since Dr. Munoz was not board certified in ER medicine, the case should not have been allowed to proceed against the ER defendants. Calling him a "professional witness", the Court also found that Dr. Munoz was the type of "expert" that Delaware law intended to preclude from testifying, as not only was he professing to be an expert in ER medicine, but the doctor had also testified on other cases as an "expert" in gynecologic oncology, orthopedics, dermatology, gynecology, neurology, obstetrcis and hand surgery.

In the November 15, 2006 decision of Clark v. University Hospital-UMDNJ, a New Jersey Appellate Court held that two resident physicians, one training to be a oral and maxillofacial surgeon and the other a general surgeon, could be held to the standard of care of an "average physician practicing his or her profesion as a general practioner." Both residents were found liable for the death of a patient for failing to reinsert a nasogastric tube in a hospital inpatient who subsequently aspirated stomach contents into his lung and died. Their attorney had asked that the jury be instructed that their potential liability should be limited to the 'standard particular to the resident' according to the level of his training at the time. However, the Appellate Court holding indicates that if a resident is performing procedures on a patient that a specialist would normally do, then they should be held to the same standard of care. What this means as a practical matter for hospitals with residency programs is that residents need to be more closely supervised by their attending physicians, so as to reduce the risk of poor outcomes to patients, and, potential hospital liability for the mistakes made by their physicians in training.

In Marshall v. Klebanov, the Supreme Court of NJ decided on 7-26-06, that a psychiatrist is not neccesarily statutorily immune for a patient's suicide. NJSA 2A:62A-16a provides that "[a]ny person who is licensed...to practice...psychiatry...is immune from any civil liability for a patient' s voluntary act against...himself unless the practioner has incurred a duty to warn and protect..." The immunity language of this statute was found not to apply to Dr. Klebanov. On 1-7-00, at a first office visit, Dr. Klebanov diagnosed Ms. Marshall with severe major depression and found that she had suicidal thoughts. Medication was prescribed and a follow up appointment was ultimately made for 2-4-00 (almost one month later). Two days before the appointment, the patient committed suicide. It was alleged that Dr. Klebanov abandoned his patient by not seeing her sooner or referring her elsewhere for treatment. The Supreme Court held that the immunity provisions of NJSA2A:62A-16 does not shield a practioner from potential liability if he/she abandons a seriously depressed patient and/or fails to treat the patient in accordance with the accepted standards of care in the field. The matter can now proceed to trial.

The American College of Cardiology and American Heart Association have established guidelines for the treatment of an acute heart attack. They require, in part, percutaneous coronary intervention to increase perfusion within 90 minutes or less from when a patient presents to the hospital with an acute myocardial infarction. Such therapy significantly increases the chances of patient survival. However, few hospitals have been able to meet these guidelines. A recent study published 11-14-06 in the New England Journal of Medicine determined that those hospitals that comply with established guidelines (a minority of 365 hospitals surveyed) have set in place specific strategies that assure the patient is reperfused in a timely manner. The successful strategies that reduced "Door to Balloon" time include: having ER physicians 'activate' the cardiac catheterization lab, having a single call to a central page operator activate the cath lab, having the ER Dept. activate the cath lab while the patient is en route to the hospital, expecting staff to arrive in the cath lab within 20 minutes after being paged, and, having an attending cardiologist always in site. Arguably, hospitals that do not implement proper strategies to attempt to comply with ACC/AHA guidelines do not meet the standard of care.

The recently decided case of Pravata v. UMDNJ (11/9/06) confirms that claims for emotional stress due to fear of HIV or Hepatits C virus because a plaintiff was stuck by a needle will not be viable against a public entity such as the University of Medicine and Dentistry of New Jersey. That is because claims against UMDNJ (or any other public entity) are governed by the Tort Claims Act which provides various immunities and limitations on a patient's right to recover. In Pravata, the plaintiff was a corrections officer who was pricked by a needle in the pocket of an inmate's pants. It was believed the inmate had procured the needle while a patient at UMDNJ. The inmate subsequently tested positive for HIV. Pravata filed a claim for emotional distress due to his fear of becoming infected with the HIV and/or Hepatitis C virus. The claim was dismised because the Tort Claims Act does not allow claims for purely "emotional distress" absent actual physical injury or "aggravating circumstances." The Trial Court, and later on appeal, the Appellate Court, found that being stuck with a needle on a person who has HIV not to be a sufficient "aggravating circumstance" to allow Pravata's claim to go forward. Had plaintiff's claim been against a private facility, his claim for emotional distress likely could have gone forward as private hospitals and employees are not granted the same immunities and limitations as public hospitals and employees. In fact, I am pursuing such a case against a private hospital currently. In that case, an electrical contractor working at a Jersey shore hospital was pricked by a needle inadevertently left lying on the floor by an operating room.

In the October 26, 2006 issue of the New England Journal of Medicine, 31,567 asymptomatic persons at risk for lung cancer (such as smokers or past-smokers) were screened annually for the disease using low-dose CT imaging. The results?: 484 participants were diagnosed with lung cancer, and, of those, 412 were diagnosed with stage 1 disease. (85% of the patients diagnosed). Of those 412 patients, 302 underwent surgical resection with one month from the time of diagnosis and had an amazing 92% survival rate. Only 8 patients with stage 1 disease elected not to receive treatment and all 8 died within 5 years from the time of diagnosis.

The authors also found screening for lung cancer in patients at risk with CT imaging to be highly cost-effective, finding that such cost-effectiveness was similar to that for mammography screening for breast cancer. Hopefully soon it will become the standard of care.

A study published in the Annals of Internal Medicine on October 3, 2006 found that, in a review of 181 closed malpractice claims, that the most common errors made in an ambulatory care setting involved a misssed diagnosis of cancer - primarily breast cancer, colorectal cancer and skin cancer. The authors also reported that one-third of women with abnormal results on mammography or Pap smears do not receive follow up that is consistent with well-established guidelines. Other frequently missed diagnoses included infections, fractures and myocardial infarctions (heart attacks).

The study attributed the errors to breakdowns in the diagnostic process. The leading cause of the breakdowns, in descending order, were: the failure of the doctor to order an appropriate diagnostic test, the failure to create a proper follow up plan, and, the failure to obtain an adequate history or to perform an adequate physical examination.

6. (a) Is there anything that you may have read in the print media or seen on television or heard on the radio about medical negligence cases or caps or limits on jury verdicts or awards that would prevent you from deciding this case fairly and impartially on the facts presented?
If the answer to Question No. 6 is affirmative, ask the following question at sidebar:
If so, what did you hear or read?
Did the news coverage affect your thinking about medical malpractice cases in any way?(d) How?
7. This case involves a claim against the defendant for injuries suffered by the plaintiff as a result of alleged medical negligence. Do you have any existing opinions or strong feelings one way or another about such cases?
If the answer to Question No. 7 is affirmative, ask the following question at sidebar:
If so, what are your opinions?
8. Have any of you or members of your immediate family ever suffered any complications from childbirth?
9 Do you have any familiarity with [the specific condition which is part of the case] or any familiarity with the types of treatment available?
10. Are you, or have you ever been, related (by blood or marriage) to anyone affiliated with the health care field?
If so, please describe:
11. Have you or any relative or close personal friend ever had a dispute with respect to a health care issue of any kind with a doctor, chiropractor, dentist, nurse, hospital employee, technician or other person employed in the health care field?
12. Have you or any relative or close personal friend ever brought a claim against a doctor, chiropractor, dentist, nurse or hospital for an injury allegedly caused by a doctor, dentist, nurse or hospital?
13. Have you or any relative or close personal friend ever considered bringing a medical or dental negligence action but did not do so?
14. Have you or any relative or close personal friend ever been involved with treatment which did not produce the desired outcome?

There has not been much by way of significant medical malpractice case law since my last blog entry, so I thought I would report on the recent approval by the Supreme Court of standard questions (voir dire) to be asked in all Civil cases, as well as those Civil cases involving medical malpractice.

In New Jersey, unlike many other states, attorneys do not interview prospective jurors, but rather, the judge assigned to the case does. In the past, there has been a lack of uniformity as to the manner in which these questions were asked AND what questions were asked of prospective jurors. In order to improve the practice of jury selection statewide, standard questions have been developed. Quoting from the Committee, "[t]he purpose of jury selection is to obtain a jury that can decide the case without bias against any of the involved parties, that will evaluate the evidence with an open mind, and that will apply the law as instructed by the judge." The hope is, with the establishment of uniform questions to be asked in all cases, implemented with a degree of flexibility, fair juries can be seated to hear these often complex cases.

The first 5 of the 14 specific questions dealing with medical malpractice cases are listed below and the additional 9 questions will be listed in the next blog entry:

1. Have you, or family member, or a close personal friend, ever had any experience, either so good or so bad, with a doctor or any other health care provider, that would make it difficult for you to sit as an impartial juror in this matter?
2. If the law and the evidence warranted, could you award damages for the plaintiff even if you felt sympathy for the doctor?
3. Regardless of plaintiff's present condition, if the law and evidence warranted, could you render a verdict in favor of the defendant despite being sympathetic to the plaintiff?
4. Have you, any family member, or close personal friend ever worked for: Attorneys, Doctors, Hospitals or Physical Therapists, Any type of health care provider, Any ambulance / EMT / Rescue?
5. Have you, or any members of your family, been employed in processing, investigating or handling any type of medical or personal injury claims?
If so, please describe.

"We now hold that a health care provider, who orders an HIV test for a patient, has a duty to take reasonable measures to notify that patient of the results of the test," says the Appellate Division in the 8-10-06 opinion in the matter of C.W. v. Cooper Hospital. (A-6100-04T) In that case, the patient, C.W. tested positive for HIV during a hospital admission. At the time he was discharged the results had not yet come back from the lab. When they came back positive, he was apparently not made aware of the results. Subsequently, he passed the virus on to his girlfriend, E.Y. The Court ruled that the duty to inform of HIV test results is extremely important, and, especially so when the test comes back positive because the patient may need prompt treatment and because the patient will also need to be educated on how to prevent the transmission of the virus. Therefore, the court also ruled that a health care provider who fails to communicate the results of an HIV test may also be "civilly liable not only to the patient, but to all reasonably forseeable individuals who contract the virus from the HIV positive patient."

Very often, hospitals maintain records dealing with patient care that are not part of the patient's chart. The 'Narcotic Adminsitration Record' discussed in the recent decision of Hein v. Community Medical Center [8-9-06] is a good example. There, an issue arose as to whether or not one of the patient's doctors administered excessive amounts of Fentanyl to a patient, contributing to her death. The doctor denied it, and, at trial produced a record maintained by the pharmacy department entitled a 'Narcotic Administration Record' indicating Fentanyl had not been signed out to, or, dispensed by the doctor. The pharmacy apparently kept records on the dispersement of controlled dangerous substances, like narcotics. I have also found, in my own cases, that pharmacy departments often keep seperate records on when other medications are dispersed as well. Thus, when an issue arises concerning what medication had been given to a patient, serparate requests should also be made to the pharmacy department for this information

Consistent with Supreme Court decision in Gardner v. Pawliw, 150 NJ 359 (1997), the Appellate Division on August 3, 2006 decided that the family of a 38 year-old woman who died from pneumonia need not prove that she actually had pneumonia on the days her family doctors failed to order a chest x-ray because of her upper respiratory complaints. (Koziel v. Changebridge Medical Associates, A-4486-04T2) On 1-17-01 the patient complained of right-sided rib pain while coughing, fever and chills. She went to her primary doctor at ChangeBridge Medical Associates with that history and a temperature of 102.1. Her physician thought she had the flu and prescribed flu medications. The next day she called her primary doctor again to report a temperautre of 104. She was instructed to take Motrin for the fever. On neither day was a chest x-ray ordered. On 1-21-01 she was taken to the ER where bilateral pneumonia was diagnosed. Ultimately, the woman died from the pneumonia two months later. In the decision, the Appellate Division ruled that the trial Court erred in requiring plaintiff to prove she had pneumonia on 1-17 or on 1-18. Rather, all that need be proven was that her doctors failed to take x-rays on either 1-17 or on 1-18, and, that such failure increased the risk of harm posed by the patient's underlying condition. In other words, it would be unfair to make the plaintiff prove that the woman actually had pneumonia on 1-17 and 1-18 when, because of the doctors' alleged errors, the very test which would have established the diagnosis was never performed. A new trial has been ordered.

Another interesting aspect of the Liguori case, cited in the blog below, was the Court's ruling that an anonymous letter apparently authored by a hospital employee, was inadmissible. The letter, sent to the family of the deceased patient, was found to be hearsay (that is a statement offered by a witness not present at trial to establish to the truth of the facts set forth in the letter). Since the plaintiff could not affirmatively establish with any certainty that the author of the letter was, in fact, a hospital employee (as opposed to some other non-hospital health care provider) and, thus, make the statements in the letter binding admissions on the hospital, the jury (which incidentally found that there was no malpractice) never got to hear the contents of the letter, which read as follows:

I wish to express my sincere
sympathy to your family for
the loss of your dear mother.
A colleague of mine informed me
of her passing. I hope that your
family is well aware of the
circumstances surrounding your
mother's deterioration while at
Hackensack Hospital.

I am a healthcare provider at
the hospital, and would lose my
job if this letter could be
tracked back to me. On the day
of your mother's surgery her
chest x-ray showed that she had
fluid on the left side that required
the insertion of a chest tube.
During the insertion of the tube
your mother experienced a rapid
decrease in blood pressure as well
as cardiac arrhythmias. Along with
these vital sign changes she was
putting out a tremendous amount of
blood into the newly inserted chest
tube. As a result she had to return
to the O.R. to be opened up again.
I don't know if you have been aware
of the reason for her return to the
O.R., but her subsequent outcome was
poor to say the least. I watched day
after day, as her condition did not
improve, knowing that the state she
was in could possibly have been avoided.
To add insult to injury the nurses on
the unit were told by their head nurse
to provide as little information to the
family as possible. I believe that the
hospital was afraid that there may be
an impending lawsuit as a result of
the botched chest tube insertion, and
they wanted to make it appear that
her decompensation was due to
her initial surgery and her age.

I am truly sorry for not coming forward
sooner. Just knowing that your family
has been lied to in that manner, in an
attempt to cover up their mishandling
of her

In the recent decision of Liguori v. Hunter and others, decided July 24, 2006 (Docket #: A-1819-04T5), the Appellate Division ruled that in the case of a life threatening emergency the normal need to obtain a patient's "informed consent" does not apply. Here, the 71 year old patient underwent successful quadruple bypass surgery. Following the surgery, Mrs. Liguori developed a collapsed lung. Since the surgeon was already in the middle of another bypass operation, he sent in a fellow [physician in training] to insert a chest tube to reinflate the lung. Unfortunately, without obtaining anyone's consent, the fellow, Dr. Hunter, inserted the tube into the woman's left ventricle, causing a cascade of events resulting in the her death. The Court rejected plaintiff's claim that their informed consent count should not have been dismissed during the trial, as the collpased lung was a genuine emergency, and becuase Dr. Hunter did not have time to speak to the family, the normal need to obtain the consent of the patient or family, and advise of the risks of the benefits of the procedure, and/or allow the patient/family to choose another doctor to perform the procedure, did not apply.

Sometimes in a malpractice case against a physician, plaintiff's best witness may be a nurse who was also involved in the patient's care. When the nurses notes don't jive with the doctors, calling the nurse as a witness to counter the doctor's description of events is a useful strategy. In the case of Cohen v. Community Medical Center and others, decided on 6-30-06, the NJ Appellate Division directed that when a plaintiff provides adequate notice prior to trial of his/her intention to to call a nurse employed by the hopsital as a witness, and the nurse no longer works at the hospital, the hospital nonetheless must provide the last known address of the nurse and any other information the hospital may possess relative to the nurses whereabouts. In other words, the hospital cannot simply claim "she no longer works here" if the nurse's testimony will be unfavorable to the defense.

The Appellate Division's decision in Stevenson v. Bobila on 6-26-06 underscores the need, in a medical malpractice case, to not only prove that the defendant doctor committed malpractice i.e., was negligent, but also that the doctor's negligence caused the patient actual harm. Sometimes this requires a separate expert on the issue of causation. In Stevenson, the plaintiff presented the testimony of an expert to address the fact that the defendant doctor deviated from accepted standards of care in failing to inspect and examine the patient's foot following a foot infection. However, the expert, board certified in Physical Medicine, could not offer an opinion that the doctor's negligence made the infection worse, or caused the patient harm, as he lacked expertise in infectious diseases. Therefore, the trial court properly dismissed plaintiff's complaint during trial for lack of expert infectious disease testimony on the issue of 'causation,' an essential element to any medical malpractice case. As I see it, this is one of the three essential elements that are required to prove a case: NEGLIGENCE, PROXIMATE CAUSE & DAMAGES. If any one element is missing, the case will not be successful.

The recent decison in Paz v. Grasso, decided 6-15-06, points out something many medical malpractice lawyers have known for some time...not all NJ hospitals are equipped to provide care at a level that can be provided in NYC or Philadelphia. In Paz, the patient underwent a lap-choly procedure and afterwards began vomiting bile. Follow up testing revealed a blockage/interruption of the hepatic dile duct, which had been accidentally damaged during the lap-choly. It appeared to the patient's doctor that the lower half of the duct was obstructed and he attempted a repair. After 6 hours of surgery, it was determined that the damage to the hepatic duct was higher than expected and Ms. Paz had to be transferred to Columbia Presbyterian Hospital in NY, where they could perform such surgery. (As it turned out, Dr. Grasso did not have the expertise to perform surgery on the upper-half of the hepatic bile duct, nor did Palisades General Hospital [where the patient was admitted] have the resources necessary to perform such a surgery.) Fortunately for Ms. Paz, the third surgery performed at Columbia-Presbyterian was successful, but unfortunately...her claim that Dr. Grasso committed malpractice...as the jury later determined...was not.

At least at one NJ hospital, records of telephone calls from physicians to patients previously discharged from the ER are maintained. In the case of Nishimura v. Spector, decided on April 20, 2006, the patient presented to the ER at Hunterdon Medical Center with a fever and flu-like symptoms. A diagnosis of pneumonia was made and antibiotics were prescribed. After taking one of the medications (Zithromax) the patient experienced hearing loss (a side effect of some antibiotics). The patient's wife claimed to have called the emergency room doctor to complain about a new symptom of decreased ability to hear and was allegedly told to finish taking the medication, which Mr. Nishimura did, resulting in permanent deafness. However, the ER doctor was apparently able to disprove that any such call was made by the wife, as any telephone conversation with a patient who has been treated in the ER is recorded on a 'call back documentation sheet' and this form is then made a part of the patient's chart. As there was no record of a call from the patient (along with the fact that the doctor was not even assigned to work the day of the wife's alleged call), the jury found that there was no malpractice. Thus, this is probably a good custom for any hospital ER department to follow as emergency room patients may often call back to the hospital with continuing or new complaints, and, documentation of physician contact with the patient seems necessary to verify any new instructions given. Also, in any case involving ER care, where there is a question of whether a patient called the ER after discharge, it would seem to be a good idea to request from the hospital any forms or records they have to substantiate that patient was spoken to or otherwise contacted.

One other noteworthy point about Gonzalez v. Agarwal (discussed below re: ER Care) is that the Court permitted that plaintiff's attorney to question the accuracy of Dr. Agarwal's office records, suggesting that they may have been re-copied with certain of the patient's relevant complaints removed. While there was no direct evidence that the doctor's records were changed, there was enough circumstantial evidence (for example, the testimony of witnesses that complaints about headaches were made by Ms. Gonzalaez to Dr. Agarwal) to permit the issue to be raised, with the Court stating "The mere fact that 'evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof,'" quoting from State v. west 29 NJ 327, 335 (1959) So, it seems that if there is a legitimate basis to question the veracity of a doctor or hospital's records, it ought to be permitted.

So, I was reading the decision of the Court in Gonzalez v. Agarwal (decided on 1-23-06 but just recently coming across my desk). Essentially, a woman had been complaining of headaches for over two years. Eventually, she ends up @ the ER @ St. Joseph's Hospital and Medical Center because the pain had become so severe. A CT of the head was ordered and the patient was initially told that everything was normal. Well, turns out the CT was not normal. In fact, the test, unfortunately, revealed an inoperable brain stem tumor. So severe was this condition that the hospital sent a police officer to the woman's house to have her immediately return to the hospital for treatment (which she did). But, what this case underscores is the obligation of a hospital to contact a patient after having an abnormal test performed in the ER. I doubt that it's the standard of care to send a police officer in all situations, but at least at one NJ hospital, perhaps it is when the condition is potentially life-threatening.