NJICLE 18th Annual Medical Malpractice Update

NJICLE 18th Annual Medical Malpractice Update at the Crown Plaza Hotel in Monroe, New Jersey

Austin v. Deitch
Docket No. A-5442-12T2
(Decided July 17, 2014)
Facts: Plaintiff’s wife presented to the emergency room with abdominal pain. She was diagnosed with pneumatosis (air in abnormal places) and bowel obstruction. Defendant, a general surgeon, performed exploratory surgery; patient was monitored for four days and discharged. She died the following day.  Plaintiff’s expert was a board certified internist and cardiologist. Motion practice ensued related to the affidavit of merit and plaintiff was issued waiver relief after submitting a certification that counsel previously consulted a surgeon, who did not find malpractice. Plaintiff’s expert issued a report alleging defendant failed to review all post-operative nursing and therapy notes to discover unresolved medical problems before discharging patient. On the eve of trial, and shortly after the Nicholas decision (213 N.J. 463), defendant filed a motion in limine to dismiss the case based on plaintiff’s failure to comply with the requirements of the Patients First Act as echoed in Nicholas.

Issue: Whether an expert may opine as to the standard of care applicable to defendant if the expert does not practice the same specialty or subspecialty as the defendant even when a waiver of the affidavit of merit was permitted.

Rules: An expert must have the same type of practice and possess the same credentials, as applicable, as the defendant physician.

Application: Plaintiff’s expert is not a surgeon. The ABMS defines ‘general surgeon’ as having expertise in the diagnosis and care of patients with diseases and disorders affecting the abdomen, digestive track, endocrine system, breast, skin and blood vessels; the scope exceeded surgery and extended to post-operative care. Therefore, the expert was not competent to opine as to the defendant’s post-operative care and decision to discharge the patient. Counsel’s own certification for waiver included a recitation that he consulted with a general surgeon who did not find malpractice. Plaintiff’s expert cannot speak to the applicable standard of care; thus the matter was properly dismissed since a prima facie case cannot be met.

Conclusion: Affirmed the judgment of the trial court to dismiss with prejudice.


Awuku v. Jones-Dillon
Docket No. A-1366-13T1
(Decided July 31, 2014)
Facts: Plaintiff presented to the emergency room with acute stroke symptoms. Plaintiff alleges that emergency room defendants deviated from accepted standards of care that produced injury. Only two defendants remain in the lawsuit; one is board certified in emergency medicine and the other board certified in internal medicine. However, per an interlocutory order, the Appellate Division held the internist was functioning in an emergency room capacity at the time of the alleged malpractice. As a consequence, plaintiff’s affidavit of merit by a board certified emergency physician was appropriate to discuss the conduct of both defendants. Defendants each rely on expert reports from board certified physicians in emergency medicine, internal medicine and neurology, respectively. Plaintiff appeals a denial of her motion to bar the internist, emergency medicine and neurologist reports since the physicians are not equivalently credentialed to the defendants’ specialties.

Issue: Is an expert report defective if the expert physician does not possess the same specialty credentials as the defendant-physician? 

Rules: N.J.S.A. 2A:53A-41(a) requires that the expert providing testimony possess equivalent specialty credentials as the party on whose behalf the testimony is proffered only when the care or treatment at issue involves that specialty. 

Application: An interlocutory order permitted plaintiff to use an affidavit of merit by a physician board certified in emergency medicine to discuss the conduct of the defendant-internist who acted in an emergency medicine capacity, therefore, the defendants should now also be afforded the same right to submit expert reports by the emergency medicine physician and internal medicine physician to comment on defendants’ conduct in his capacity as a general practitioner at the time of treatment. Notwithstanding, the expert report by the board certified neurologist should be barred since he opines on a deviation from a neurological perspective and also fails to render an opinion on causation or damages in an addendum report; rather the addendum report simply rules out a course of care addressed in plaintiff’s expert report.

Conclusion: Affirmed in part, reversed in part and remanded for further proceedings.


Balducci v. Kennedy Surgical Center
Docket No. A-1973-12T3
(Decided March 17, 2014)

Facts:Plaintiff was leaving a surgical center in a wheelchair following an epidural injection when his foot became caught under one of the wheels. Plaintiff has no recollection of the incident, he was told by a nurse and a x-ray technician that he was thrown to the ground and landed on his side. Plaintiff underwent decompression surgery to alleviate his symptoms. Defendant moved for summary judgment following a de bene esse deposition of plaintiff’s surgeon. The trial court concluded the plaintiff’s expert-surgeon expressed his opinion as a possibility as opposed to a probability; thus, failing on the issue of causation.

Issue: Whether summary judgment was appropriate in light of the expert’s opinion on causation.

Rules: Summary judgment must be denied when evidence, viewed in light most favorable to the non-moving party, is sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party.

Application:The testimony relied upon and at the center of the trial court decision should have also included reference to a later passage in the deposition transcript that did, in fact, reference an opinion to a reasonable degree of medical probability that causally related the injury to the incident. Because plaintiff’s surgeon provided the necessary causal opinion, the defendant’s motion for summary judgment should have been denied.



C.A. (Applegrad) v. Bentolila
Docket No. A-32 September Term 2012, 071702
(Decided September 29, 2014)

Facts: Plaintiff was admitted to the defendant hospital in her 41st week of pregnancy. Her daughter, C.A., was born with serious brain injuries. It is alleged that the brain injuries were due to medical negligence, while defendant alleges the injuries were unpreventable birth complications. Plaintiff sought to compel production of the hospital’s internal investigation, including a round-table discussion memo, and peer review records related to C.A.’s birth. Trial court denied the motion and held the hospital substantially complied with the Patient Safety Act (“the Act”) and the documents were privileged. The Appellate Division reversed and stated ‘substantial compliance’ is not enough for protection under the Act. The Act will only prevent disclosure if defendant fully complied with the regulations therein.

Issues:Whether a memo memorializing a round-table discussion by hospital staff investigating an adverse event is privileged from discovery under the Act.

Rules: The Act provides an absolute privilege so health care staff are more likely to effectively assess adverse events and take future preventative measures, while avoiding recrimination of an employee who admits his/her or his/her colleague’s medical error. However, the absolute privilege applies only (i) for a document “exclusively” prepared in a setting of a qualified self-critical analysis process and (ii) to mandate the self-critical analysis be conducted in accordance with one of three accompanying Act regulations. The analysis process and safety plan must include, at a minimum, four components (i) establishment of a patient safety committee, (ii) a process for teams of facility staff to conduct ongoing analysis and application of evidence-based patient safety practices, (iii) a process for teams of facility staff to conduct analyses of near-misses and (iv) process for the provision of ongoing patient safety training for facility personnel.

Application:The record supports the trial court determination that the Hospital established all four components of the Act. The record also supports that the round-table memo was prepared as part of a process of self-critical analysis. Thus, the hospital complied with the Act as it existed on the date of incident; notwithstanding, any new regulations added thereafter. Hospital is not compelled to anticipate later regulations as a condition to privilege.

Conclusion:Judgment of the Appellate Division reversed.


Caratozzolo v.  Davis
Docket No. A-4773-11T3
(Decided September 4, 2014)

Facts: Plaintiff presented to emergency room with chest pain. He ‘stabilized’ and monitored overnight when he developed a new murmur and neurological symptoms. Defendant-physicians examined plaintiff and ordered a ‘stat’ echocardiogram; however, the lab was closed until morning and defendants opted to wait since plaintiff was stable. The next morning, defendant-technicians performed the ‘stat’ echo, recorded findings and placed the findings on the table for a physician to read per protocol. In this interim, Plavix and other medications were provided. No defendant believed plaintiff suffered from an aortic dissection at that time. The next day, plaintiff developed a diastolic murmur and the echo was finally reviewed. The echo, with additional tests, confirmed a “type-A” aortic dissection. Surgery was necessary, and defendant-surgeon explained the risks of stroke, clot and bleeding (due to Plavix), among others. Plaintiff experienced complications, including stroke and bleeding. He had 23 diagnoses at the time of discharge; however, at the time of trial, plaintiff was able to drive, exercise, do yard work and continue photography, among others. Defendant-surgeon testified beyond his care provided and offered ‘expert’ opinion that most patients with type-A dissection die before they reach the hospital, and that the time of surgery does not affect the risks involved; including the administration of Plavix. Plaintiffs’ and Defendants’ presented an array of qualified experts who each opined on the conduct of the respective defendants. Jury returned a no cause verdict following a three-month trial. Plaintiffs’ motion for a new trial was denied. The judge believed there was no miscarriage of justice by the jury believing defendants’ experts nor was there inconsistency in the jury finding some deviation of care but not an increase of harm resulting therefrom. This appeal ensued.

Issues:(1) Whether the testimony by defendant-surgeon should be limited to the care provided rather than expert testimony. (2) Whether “captain of the ship” jury charge was improper as to mislead the jury.

Rules: (i) Rule 4:49-1(a) requires a new trial if having given due regard to the opportunity of a jury to pass upon the credibility of the witnesses, it clearly and convincingly appears there was a miscarriage of justice; on appellate review must also defer to the trial judge’s ‘feel of the case’ including witness credibility. (ii) A treating physician while testifying as a fact witness, may also discuss his diagnosis and treatment and opine as to the cause of the illness. Stigliano (140 N.J. 305) (iii) New Jersey does not follow the ‘captain of the ship doctrine’ that attaches liability to primary doctor by errors committed outside his care, specialty and/or control.

Application:The testimony by the defendant-surgeon was not unduly prejudicial. Surgeon was permitted to testify that the stroke and bleeding were not attributable to the Plavix or delay in the procedure, but were inherent risks to the surgery itself. The surgeon’s testimony stood to carry greater weight with the jury, but that did not make the testimony inadmissible. Moreover, there was no inconsistency in the jury’s finding. Several defendants’ deviated from the standard of care, but the jury found such deviation was not a proximate cause for the alleged increased risk of harm/injury to plaintiff. The ‘captain of the ship’ instruction was appropriate since plaintiff attempted to charge defendants with the negligence of a resident and staff examining plaintiff and/or reporting the echo results on a timely basis. There were no proofs presented to show defendant had a duty to train or a supervisory role in this regard that was breached.

Conclusion: Affirmed.


Coniglio v. Marino
Docket No. A-6060-11T3
(Decided July 22, 2014)

Facts: Plaintiff’s wife presented to the emergency room following a fall down where she struck her head after losing her balance. She died from her injuries. It is alleged that the fall was attributable to her extensive neurological history and treatment, including, surgery with a neurosurgeon that caused similar post-operative dizziness and loss of balance. All defendants, except one emergency physician, were dismissed or settled prior to trial. Plaintiff alleges the defendant failed to act quickly to treat the injuries. The defendant’s answer included claims for contribution and attributed any malpractice, if found, to be the fault of another defendant. Defendant’s expert report alleged the neurosurgeon was primarily responsible for patient’s care, but did not allege negligence by the neurosurgeon. A jury returned a verdict for the defendant. Plaintiff raises numerous issues on appeal, most notably the contention that the trial court erred by permitting the jury to consider the alleged negligence of the neurosurgeon, who settled with plaintiff before trial, and by allowing plaintiff’s experts to comment on defendant’s role in the ‘medical team’ role despite holding different specialties.     

Issues:Whether defendant can include the settling defendants on the verdict sheet even though no cross-claims were asserted by the defendant. Whether an expert, having a different specialty than defendant, may comment on the role of the defendant in the ‘medical team’ that cared for the patient?

Rules: (i) A defendant who stands trial may not assert the liability of a settling defendant without first providing plaintiff with fair and timely notice of an intent to do so to avoid surprise. Young, 123 N.J. 584 (1991); Rule 4:7-5(c). (ii) An expert must be a specialist in the same field in which the defendant physician specialized in the case; however, when a ‘medical team’ is inextricably intertwined in patient care, then an expert may offer his perspective and disciplines relative to the responsibilities of the other medical team to the patient.

Application:(i) Defendant did not assert a cross-claim against the neurosurgeon; however, his answer demanded contribution and indemnification from co-defendants, and provided explicit notice, pursuant to Young, to seek liability apportionment against other settling defendants even if no cross-claim was filed. Moreover, defendant did not suggest to the jury that the neurosurgeon’s settlement was indicative of liability, but rather, plaintiff opened the door to the disputed testimony between the defendant and neurosurgeon during direct examination of his own expert. (ii) Defendant’s experts did not testify to a standard of care outside their specialties, but rather, testified only to their own perspective as to the responsibilities of the defendant and neurosurgeon relative to their roles in the ‘medical team’ when patient arrived in the emergency room. The trial judge correctly denied the motions in limine.

Conclusion:Judgment of the trial court affirmed. No reversible error to deny motion in limine.


Cooper v. Russo
Docket Number ESX-L-1507-14
Decided September 19, 2014

Facts:  Plaintiff filed a Complaint and Defendants respectively filed Answers. Plaintiff was unable to obtain Affidavits of Merit and submitted two Voluntary Stipulations of Dismissal; one with prejudice (parents’ claims) and one without prejudice (infant plaintiff). Two defendants did not sign the Stipulations and a Ferreira conference was held. At the conference, the Court permitted Plaintiff to submit an Order of Dismissal under the 5-day rule despite the objections by Defendants. An Order was submitted and defendants did not object before the Court signed the ‘unopposed’ Order.  Thereafter, defendants filed a motion for consideration of the voluntary dismissal order. Defendants argue a Ferreira conference does not function to decide issues of dismissal and that Kubiak requires dismissal with prejudice if the plaintiff does not comply with the Affidavit of Merit statute.

Issue:Whether a infant plaintiff’s Complaint may be voluntarily dismissed without prejudice before the Affidavit of Merit deadline.

Rules: Kubiak requires that an infant plaintiff’s complaint must be dismissed with prejudice if an Affidavit of Merit was not timely served before the statutory deadline.

Application: The infant plaintiff’s complaint was voluntarily dismissed before the Affidavit of Merit deadline; thus, Kubiak does not apply to these circumstances and the Court has discretion to permit a voluntary dismissal, without prejudice, requested by Plaintiff. The obligation to provide an Affidavit of Merit did not ripen.

Conclusion: Defendants’ motions for reconsideration are denied.


Dalton v. Crawley
Docket Number A-4033-12T2
Decided April 8, 2014

Facts: In this medical malpractice action, defendants demanded production of all deposition transcripts of defendant’s expert to be used by plaintiff during cross-examination. Plaintiff cited attorney work product. Plaintiff argued Rule 4:10-2(c), Fed. R. Civ. P. 26(a) and Form A Interrogatory 10 each shielded production when discovery was used for impeachment only, among others. An initial trial court order required only production of transcripts in plaintiff’s possession. A second order required all parties to produce transcripts and identify those transcripts to be used at trial. This appeal ensued.

Issue:Does the work-product privilege protect the disclosure of expert deposition transcripts to be used at trial for cross-examine only.

Rules: Rule 4:10-2(c) requires the party seeking discovery to show substantial need of the materials to prepare the case and an inability to do so without undue hardship to obtain the substantial equivalent by other means. The fundamental test of applicability of work-product privilege is whether the materials to be discovered were prepared in the anticipation of litigation rather than in the ordinary course of business.

Application:The first order requiring production of all transcripts was proper. The test is not how the evidence will be used at trial, but rather whether it was prepared in anticipation of litigation. Asserting that otherwise discoverable material will be used solely for cross-examination does not render the material non-discoverable. The example of video surveillance is illustrative. A private investigator video is discoverable only if plaintiff can show a substantial need; however, an incident captured by a routine surveillance video recording is discoverable. Plaintiff did not meet the burden of showing the transcript were prepared in anticipation of this litigation. Notwithstanding, the second discovery order was improper since parties were required to not only produce transcripts, but disclose those transcripts intended to be used at trial. The additional caveat infringed on the work-product of attorneys, as well as, caused practicality issues by requiring attorneys to develop cross-examination before the actual trial.

Conclusion: Affirmed in part, and reversed in part, and remanded for further proceedings.


DeMarco v. Stoddard
434 N.J.Super 352 (App. Div. 2014)

Facts:Rhode Island medical malpractice insurer ‘JUA’ appeals summary judgment entered in New Jersey that required it to provide liability coverage for podiatric medical malpractice alleged by plaintiffs against the defendant podiatrist. JUA argued it rescinded the malpractice policy issued to defendant because the defendant-physician purposefully misrepresented the nature and location of his practice on the application and renewal forms. The New Jersey trial court held that the JUA must provide indemnification coverage in the minimum amount required by New Jersey law.

Issue:Whether a medical malpractice insurance carrier may rescind a policy so that the carrier has no duty to indemnify the insured doctor for injuries suffered by an innocent third party who made a malpractice claim before the policy was rescinded due to material misrepresentations by the insured.

Rules: There are no statutes or cases directly on point; however, analogous circumstances arise in the context of automobile insurance and legal malpractice claims protect innocent third parties for whose benefit compulsory insurance mandates were enacted. The statutory minimum coverage under New Jersey laws is not subject to post-claim rescission by the insurance carrier because of fraud in procuring the policy.

Application:Plaintiffs are innocent third parties and took no part in perpetuating a fraud or misrepresentation on the JUA application and renewals. In the same way the general public uses roadways, medical patients can reasonably assume doctors are complying with the law. Rhode Island case law similarly seeks to protect the innocent third party when fraud or illegality would otherwise support policy rescission. New Jersey’s compulsory malpractice coverage is $1 million (or holding a letter of credit of $500,000); whereas, Rhode Island does not compel a specific coverage amount. The differences are resolved by a “most significant relationship” choice-of-law test in favor of the New Jersey compulsory amount to protect patients who seek medical care in New Jersey and have expectations that doctors comply with the law. The Court engaged in a detailed choice of law analysis pursuant to factors set forth in Lonza Inc. v. The Hartford Accident & Indem. Co., 359 N.J.Super. 333 (App. Div. 2003) to support its position.

Conclusion:The judgment of the trial court is affirmed.


Estate of DeGironimo v. Agress
Docket Number A-2016-12T4
Decided April 16, 2014

Facts: In 2003, plaintiff underwent numerous diagnostic tests for coronary screening following the sudden death of her sister. In 2004, plaintiff underwent additional diagnostic tests to rule out pulmonary embolism after experiencing shortness of breath. No abnormalities were noted except for minimal fluid collection in the base of the lung. In 2008, plaintiff presented to the emergency room for excessive nosebleed, chest pain and shortness of breath. Diagnostic tests revealed a nodule in the lung. A comparative review of the 2003/2004 films to the 2008 films showed an increase in size of the nodule that was visible in the earlier films. Plaintiff underwent a lobectomy and was diagnosed with cancer; a malpractice action ensued. The jury returned a defense verdict. Plaintiff argues the trial court erred: (i) by prohibiting plaintiff’s expert from showing CT films on a forty-inch television monitor while his de bene esse deposition was videotaped, (ii) by denying her motion for mistrial or, alternatively, a continuance until her expert could testify in court, and (iii) allowing defense expert to testify beyond the scope of his report.


Rules: (i) Computer-generated, super-magnified diagnostic imagery is not admissible when such demonstrative evidence does not accurately portray the original, unenhanced evidence (Rodd, 373 N.J.Super. 154) (ii) Mistrial and adjournments are discretionary and necessary only to prevent manifest injustice or wrong. (iii) An expert witness may be confined to the opinions in his report; however, the logical predicates for and conclusions from statements made in a report are not foreclosed so long as the omitted evidence/testimony was not intentional to mislead or surprise, and no prejudice results.

Application:(i) Plaintiff sought to display of the CT images on a forty-inch monitor, which was larger than the laptop-size monitors used by defendants during treatment, to ameliorate the decrease in clarity on the films’ appearance in the videotaped de bene esse where the expert viewed the images on his laptop. Jury confusion could result by a magnified version of films since the size and clarity of the nodule differs from how the films actually appeared when viewed during treatment. (ii) Only jury selection was completed when plaintiff sought a mistrial or adjournment; neither was warranted since the trial date was adjourned three times, and plaintiff’s expert could have changed his travel plans or plaintiff could’ve secured his de bene esse deposition. There was no undue prejudice since the jury watched the expert’s videotaped testimony. (iii) No error committed to allow the defense expert to testify about two articles he authored, the location/size of the nodule and the protocol for radiologists in reporting diagnostic findings. The expert previously discussed the issues at his deposition, in his report and/or plaintiff opened the door during her case in chief.  Moreover, the court closings due to Hurricane Sandy did not prejudice plaintiff.

Conclusion: Affirmed.


Francois v. Tai
Docket No. A-2323-12T2
(April 16, 2014)

Facts: Plaintiff sustained a laceration to the bladder during an operative procedure to remove fibroids attached to her uterus. The complications from the laceration required a second operation to repair the laceration and perform a colostomy. After the second operative, Plaintiff was admitted to the hospital and wore a catheter and colostomy for nearly two months. During summation, defense counsel claimed that the initial surgery relieved plaintiff’s pain and was successful to improve quality of life. Plaintiff’s counsel objected noting that whether plaintiff was pain-free from fibroids was not relevant to the cause of action and also untrue. A curative instruction was delivered. The jury returned a $30,000 verdict (plus $4000 per a stipulated lost wage claim). The court denied plaintiff’s motion for a new trial on damages or, alternatively, an additur.

Issues: Do ‘inappropriate’ comments made during summation justify a new trial or additur where the trial judge delivers a curative instruction?

Rules: (i) An appellate court may overturn a jury verdict only if the verdict is so far contrary to the weight of evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality. (ii) While attorneys are afforded broad latitude in closing statements, their statements must be based in truth and cannot misstate the evidence or distort the factual picture.    

Application: Judicial intervention sufficiently cured any potential prejudice by the statement. The curative instruction avoided a miscarriage of justice and it was within the discretion of the trial judge whether the instruction sufficiently obviated any prejudice. It is pure speculation that the quantum of award was related to the inappropriate comments in summation. Additur is inappropriate since the claimed pain and suffering was within a finite period and the jury had the right to weight the testimony. There is no second-guessing the tier of fact unless the amount shocks the conscience; that is not the case.

Conclusion: Affirmed.


Gordon v. Somerset Medical Center
Docket No. A-0789-11T4
(August 29, 2014)

Facts:Plaintiff alleges a negligent failure to diagnose breast cancer after mammogram studies. During the discovery period, the court granted defendants’ unopposed motion to dismiss for plaintiffs’ failure to provide medical authorizations. It is alleged that a consent order was signed to vacate the dismissal, which was never filed by plaintiff’s counsel. Thereafter, plaintiff’s counsel was unable to continue his practice and a court-appointed trustee advised plaintiff she must immediately retain new counsel to protect her rights, including discovery deadlines. Plaintiff was unable to secure new counsel and moved pro se to stay the matter, extend discovery for ten months and extend the period for which plaintiff could retain new counsel. The court granted plaintiff additional time to retain new counsel. New counsel was not retained. The court issued a trial notice once discovery closed and defendants immediately moved for summary judgment due to plaintiff failing to provide an expert report. Summary judgment was granted. Trial court noted counsel represented plaintiff during most of the 680-day discovery period, and that plaintiff was not diligent in retaining new counsel in the interim. A motion for reconsideration was denied. Plaintiff appeals.

Issues: Whether plaintiff demonstrated good cause to justify an extension of the discovery end date?

Rules: “Good cause” may be shown by a number of factors: (1) movant’s reasons for the requested extension, (2) movant’s diligence in earlier pursuing discovery, (3) type and nature of the case, including unique factual issues, (4) any prejudice that would inure to the movant if an extension was denied and (5) whether granting the application would be consistent with the goals and aims of Best Practices.

Application: There was no abuse in denying the discovery extension. Plaintiff was aware that she was required to retain new counsel and she failed to act diligently. Notwithstanding, there was no evidence by plaintiff – through counsel or her own acts – to secure an opinion from a medical expert from the filing date of the complaint. Defendants did not allege any specific prejudice from the delay; however, parties are entitled to a reasonably prompt resolution of dispute, in particular, a physician resolving a claim that casts shadow on his or her professional reputation. While the health problems of her attorney may meet the good cause and exceptional circumstances standard (triggered after plaintiff renewed her motion after the trial date notice), the record reflects the health issues were known for an extended period of time and plaintiff simply did not act.

Conclusion: Affirmed


Jones v. Dias
Docket No. A-0463-12T1
(July 14, 2014)

Facts: Plaintiff alleges he presented to the emergency room with pain in his testicle. Defendant alleges plaintiff presented with abdominal pain only. Plaintiff was diagnosed with kidney stones. The next day, plaintiff presented to another hospital that diagnosed testicular torsion. Immediate surgery was required; however, it was too late and the testicle was removed. A jury returned a defense verdict. Plaintiff appeals the verdict, the denial of his judgment notwithstanding the verdict and denial for a new trial. Plaintiff argues: defense counsel improperly cross-examined plaintiff about his drug abuse and parachuting injury; that the judge improperly precluded plaintiff from introducing a medical journal to cross-examine the defense expert; and that the judge improperly denied a jury request for testimony transcripts.

Issues: Whether a motion for judgment and motion JNOV were appropriate under the circumstances. Whether the trial judge abused his discretion in the context of the various evidentiary rulings.

Rules: (i) Motions for judgment/JNOV must be denied if, accepting as true all evidence that supports the party opposing the motion and according him the benefit of all inferences that can reasonably and legitimately be deduced therefrom, reasonable minds could differ.

Application: (i) The jury was free to weigh the evidence as they chose and credit the witnesses accordingly. The discrepancies in testimony and lack of medical notes for testicle pain lend that a reasonable juror could find for defendant. (ii) Cross-examination on the drug history and parachute injury was appropriate since plaintiff opened the door to these topics on direct examination and it is relevant to credibility of the damage claim. (iii) The decision to ask the jury rely on their recollection rather than trial transcripts, which would ‘take weeks’ to obtain, is not an abuse of discretion. (iv) The refusal to allow plaintiff to cross-examine the defense expert with medical literature is without merit to warrant a written opinion; the court is limited in evidentiary rulings to analyze only whether there was abuse of discretion. There was no abuse since the plaintiff already had a number of expert witnesses testify as to the standard of care and its alleged breach.

Conclusion: Judgment of the trial court affirmed.  


Kapuscenski v. Hess Corporation
Docket No. A-2202-12T3
(Decided March 24, 2014)

Facts: A handcart struck plaintiff who sustained injuries that required surgeries. Defendants filed a third-party complaint against the plaintiff’s physicians for malpractice and indemnification arising from the failure to timely treat a postoperative spinal infection. Months before trial, plaintiff settled with defendants for $1.5 million. Third-party defendants immediately moved to dismiss the third-party complaint. Trial court ruled the indemnification claim could proceed, and advised defendant to produce an expert on the issues. Several months later, at the trial call, the court dismissed the action since defendant did not produce any expert opinion. Defendant appealed and argued (i) the motions to dismiss were untimely and (ii) expert testimony was not required for its claims.

Issues: (i) Whether a motion to dismiss may be heard at the trial call. (ii) Is an expert required for an indemnification claim premised on malpractice?

Rules: (i) A motion to dismiss will be treated as a motion pursuant to Rule 4:46-1 and must be filed at least 30 days before the trial date; likewise, all motions in limine must be included and exchange in a pre-trial information exchange at least 7 days before the trial date. However, the Rules allow for flexibility and relaxation of time constraints to avoid unjustifiable expense and delay. (ii) Where there is a increase in injury due to malpractice, expert testimony is required to prove not only that physicians committed malpractice, but also, the quantum of damages that could be reasonably imposed upon the physicians. (New Milford, 219 N.J.Super. 182)

Application: (i) Motions to dismiss were untimely filed; however, expense and delay would result if third-party defendants were required to wait until the end of the trial to re-submit the motions. The trial court could relax the rules so that the motion could be considered before trial; moreover, defendant should have expected the motion since the issue was raised following the settlement. (ii) Expert testimony is required given the complexity of the issues. Defendant should have provided not only a medical expert, but also, an expert in the settlement/valuation of claims, such as an experienced torts attorney or claims adjuster, to explain the various factors for case settlement.

Conclusion: Affirmed the dismissal.


Konop v. Rosen
Docket No. A-2341-12T3
(Decided March 12, 2014)

Facts: Plaintiff underwent a colonoscopy. Postoperatively, the plaintiff experienced pain and presented to the hospital. Plaintiff sustained a perforation that required an emergency resection. The hospital report included a notation that plaintiff was “moving too much at the time of the colonoscopy”. The source of the information was disputed. Plaintiff’s expert opines that excessive movement represents a deviation from accepted standards of medical care given an inadequate level of anesthesia. The claim was premised on whether a jury believed the defendant was the source of the notation. At trial, all medical providers appeared and denied any relevant recollection of the procedure; however, the nurse who assisted the colonoscopy failed to appear. The court asked the jury whether the plaintiff demonstrated by a preponderance of the evidence that the defendant was the source of the notation. Jury answered ‘no’ and the matter was dismissed. Plaintiff appeals and argues an adverse inference charge was appropriate given the relationship between the defendant and the “missing” nurse, who allegedly observed the movement during the colonoscopy.

Issues: Whether a new trial is warranted where the judge failed to provide the jury with an adverse inference charge when the nurse failed to appear at trial.

Rules: See; Clawans (38 N.J. 162); Hill (199 N.J. 545). The party seeking the adverse inference charge should request the charge outside the jury’s presence and at the close of his opponent’s case and before summation to the judge and counsel. The party accused of non-production then has the opportunity of either calling the witness or demonstrating the reason for the failure to call. Court must then place on the record: (i) the uncalled witness is peculiarly within the control/power of only the one party or there is a special relationship/knowledge there existing, (ii) the witness is physically and practically available, (iii) the uncalled witness testimony will elucidate relevant facts and (iv) such testimony appears to be superior to that already utilized to the fact to be proven.

Application: The judge did not place on the record the findings pursuant to Clawans; however, this is not fatal. An application of the four Hill factors reveals that plaintiff’s counsel previously acknowledged that a deposition of the nurse would be futile since she would not provide truthful information; therefore, the anticipated testimony may not elucidate relevant and critical facts. More importantly, the nurse was not within the control of defendant; she was an employee of a non-party medical facility where the procedure was performed. The failure to call a witness available to both parties precludes the raising of an inference against either. Additionally, plaintiff provided the judge with “new” information about the nurse when plaintiff moved for a mistrial; however, the “new” information should have been provided before the adverse inference motion was decided and by an exercise of due diligence.

Conclusion: Affirmed.


Komlodi v. Picciano
217 N.J. 387 (2014)

Facts: Defendant prescribed plaintiff a Duragesic patch that gradually released medicine into the skin to treat back pain. Defendant knew that plaintiff had a history of substance abuse and advised plaintiff not to consume alcohol during patch use. Thereafter, plaintiff consumed alcohol, ripped the patch and swallowed the contents resulting in injury. The jury was given a Scafidi charge to consider prior substance abuse as a pre-existing condition and a superseding/intervening cause charge. Jury returned a no cause verdict. The Appellate Division (split) reversed and remanded for a new trial. The majority found the trial court erred by failing to define the pre-existing condition and omitting relevant facts and explanations to apply within a complex causation instruction that included a Scafidi charge, a superseding/intervening charge (when a general foreseeability charge was sufficient), and a ‘but for’ causation concept.

Issue: What is the appropriate jury charge on causation to be applied where a patient with a known drug/alcohol abuse history is prescribed a high-potency skin patch medication, but swallows the patch contents instead that results in injury?

Rules: A Scafidi charge is used where a known progressive disease is not properly treated and the measure of damages is the patient’s lost chance of recovery. A Scafidi charge requires evidence that, within a reasonable degree of medical probability, the defendant’s delay in making proper diagnosis and treatment increased the risk of worsening the condition, and that delay was a substantial contributing factor in the current condition. The ‘substantial factor standard’ replaced the ‘but for test’ in medical malpractice cases where a defendant’s negligence combines with a preexistent condition to cause harm; as opposed to cases in which the deviation alone is the cause of harm.

Application: The Scafidi charge was misapplied since the pre-existing condition was never identified nor were facts explained in relation to the law as required by the Model Jury Charge. The substance abuse ‘pre-existing condition’ strays from the traditional lost-chance-of-recovery case that apply Scafidi. This is not a case of a pre-existing condition, but rather, should apply superseding/intervening causation and avoidable consequences. The trial court did not clearly explain these complex causation concepts as they relate to the facts and arguments raised during trial. In that respect, the Appellate Division erred by holding a general foreseeability charge was sufficient in place of the superseding/intervening causation charge. The supervening/intervening charge, if properly given, had the capacity to focus the jury’s attention on the precise different contentions of each party. Lastly, the ‘but for’ causation reference appears to be a harmless mistake to which no objections were made on record.

Conclusion: The Appellate Court decision is affirmed and modified and remand for a new trial.


Kuren v. Kaul
(Decided January 15, 2014)

Facts: Plaintiff filed a malpractice suit in Essex County against numerous defendants. The matter was transferred to Bergen County at the request of one defendant. Co-defendant now seeks to transfer venue to Sussex County. The motion is premised on numerous articles that appear in a widely read Bergen County newspaper that chronicle defendant’s alleged poor medical abilities and license suspensions, among others, and include patient narratives. Defendant argues many potential jurors in the community may have read one or more of the articles, and that plaintiff is also a resident of Sussex County.

Issue: Whether the evidence of alleged prejudicial publicity rises to a level to warrant a transfer of venue.

Rules: The standard governing the trial court’s discretion on a venue change is whether the change is necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicly. These factors determine whether pretrial publicity rises to the level of presumptively prejudicial: (1) evidence of extreme community hostility against defendant, (2) the respective standing of the victim or defendant within the community, (3) the nature and extent of news coverage, (4) nature and gravity of the offense and (5) the temporal proximity of the news coverage to the trial.

Application:  The three articles appearing in The Record newspaper does not qualify as expansive news coverage. Moreover, the newspaper is accessible beyond the confines of Bergen County. The articles do not mention plaintiff or her case. There is simply no way of knowing the impact of the article until voir dire, wherein parties will have the ability to ensure selection of an unbiased jury. Defendant retains the right to renew the motion following voir dire.

Conclusion: Motion to transfer venue to Sussex County is denied.


L.A. v. New Jersey Division of Youth and Family Services
217 N.J. 311 (2014)

Facts: In January 2001, S.A. was brought to the emergency room after the two-year old became ill. Examination revealed the child had a blood alcohol level of .035 and her mouth smelled of cologne. S.A.’s father presented to the hospital with a bottle of cologne that smelled similar to the cologne odor. Defendant-physician diagnosed S.A. with accidental cologne ingestion. No inquiry was made as to how/why S.A. was able to consume cologne; no record was made as to whether abuse or neglect was present; DYFS was not contacted. In the months that followed that initial examination, S.A. presented for at least three medical examinations for burns. The March and April 2001 incidents were reported to DYFS that resulted in findings of abuse and neglect. S.A. was removed from parental care and adopted by L.A. In 2007, L.A. filed a Complaint alleging malpractice by hospital and ER physician for their initial failure to report the cologne ingestion to DYFS. Trial court granted summary judgment; Appellate Division reversed and remanded finding a reasonable jury could find probable inference that the cologne incident could have been the result of ‘reckless’ or ‘grossly or wanton negligent’ conduct or inaction.

Issue: Whether defendants breached the duty to report suspected child abuse when a person forms a reasonable belief that a child was subjected to abuse.

Rules: N.J.S.A. 9:6-8.10 mandates the DYFS reporting requirement on a person who has “reasonable cause to believe” injury resulted from abuse or neglect based on facts and circumstances known to the person on the scene. The actions of the person must survive an objective reasonableness test.

Application: The circumstances at the hospital were insufficient to give rise to finding the defendant-physician acted unreasonably in failing to report the cologne incident to DYFS. There was no evidence of intentional behavior by the parents/guardians exhibited at examination. Cologne is a common household item and it is not equivalent to grossly negligent or reckless behavior on the part of a parent if a toddler somehow gets her hands on the item. The subsequent incidents reported to DYFS cannot cloud the objective reasonableness of the first and only interaction between S.A. and defendant.

Conclusion: The judgment of the Appellate Division is reversed and remanded to the trial court for reinstatement of the summary judgment dismissing the action against defendants.


Martirez v. Younan
Docket Number A-0610-12T1
Decided March 26, 2014
(Request for Certification Denied)

Facts: Several weeks after open-heart surgery, decedent developed fluid around the lungs that required a thoracentesis to drain the liquid. During the procedure, decedent slumped over and blood (not liquid) filled the syringe. The pulmonologist and other medical providers stabilized decedent and observed him thereafter; however, decedent suffered hypoxic brain injury due to a lack of oxygen. He remained incapacitated for one year before he passed away. Plaintiff filed a complaint against all medical providers, including the pulmonologist who performed the thoracentesis. One day before trial, plaintiff settled with the pulmonologist for his entire policy limits. The trial judge preliminarily instructed the jury not to speculate about the settlement and its effect on the remaining defendants. At the close of evidence, the court dismissed defendants’ cross-claims against the pulmonologist and determined he would not be included on the verdict sheet. During summation, defense counsel argued the respective tasks of each physician, including that the pulmonologist made “concessions”, plaintiff objected. Jury returned a no cause verdict against all defendants. Plaintiff sought to set aside the verdict arguing (i) court committed reversible error by allowing “empty chair” defense and refusing to instruct the jury that pulmonologist could not be held negligent and (ii) defense counsel’s repeated reference to the settlement.

Issue: Do the circumstances arising from the alleged empty chair defense and prejudicial comments discussing a pre-trial settlement warrant a new trial?

Rules: (i) An “empty chair” defense shifts blame to a joint tortfeasor who is not in the courtroom and whom no viable claim may be made; this includes a party or non-party who settled. (ii) A reviewing court should defer to the determination of a trial court with regard to the effectiveness of a curative instruction, unless the resulting prejudice is so great that an instruction will be insufficient.

Application: Defendants did not use an “empty chair” defense since they used the evidence to present the responsibility of each physician, that is, his/her role in the care provided. Use of the word ‘responsibility’ was not akin to using the word ‘negligence’ since the two have different meanings.  Defendants did not argue the pulmonologist was negligent, but that each respective defendant was not negligent based on the pulmonologist and expert testimony.  (ii) The preliminary and curative instructions that a settlement is not a concession of liability sufficiently safeguarded against a jury inference otherwise, despite comments made during opening and summation by defense counsel.

Conclusion: Affirmed.


Meehan v. Antonellis
Docket Number A-0140-13T4
Decided August 21, 2014

Facts: Pro se plaintiff appeals the dismissal of his complaint for the failure to comply with the Affidavit of Merit (AOM) statute and also for the denial of his motion for reconsideration. Plaintiff alleged malpractice following a shifting and gap in his teeth due to a dental appliance fitted by the defendant- orthodontist to treat sleep apnea. Plaintiff submitted an AOM by a licensed dentist who held a special certificate in prosthodontics and who had twenty years of experience treating sleep apnea. Defendant successfully moved to dismiss since the AOM was by a dentist while defendant was an orthodontist. Plaintiff argued the answer failed to identify defendant as an orthodontist; his expert was qualified in prosthodontics and sleep apnea, for which defendant treated plaintiff in his capacity as dentist rather than orthodontist; and that parties agreed at a case management conference that a dentist was an appropriate expert.

Issue: Whether plaintiff’s AOM is defective since defendant and affirmant practice different specialties, but do treat patients suffering from sleep apnea.

Rules: (a) Patients First Act, N.J.S.A. 2A:53A-41, requires a plaintiff’s medical expert to posses the same specialty or subspecialty as the defendant-physician. Thus, when a physician is a specialist and the basis of the action involves the specialty, the challenging expert must practice in the same specialty. See; Nicholas v. Mynster, 213 N.J. 463 (2013) (b) Rule 4:5-3 requires a defendant to designate the field of medicine in which he specializes within his Answer.

Application:  Plaintiff’s AOM affiant is a specialist in prosthodontics and defendant is a specialist in orthodontics. Both physicians may possess expertise in treating sleep apnea, but the defendant was nevertheless performing his duties as an orthodontist. Therefore, plaintiff was required to obtain an AOM from an orthodontist. Defendant did not comply with R. 4:5-3 since his answer did not designate his specialty; however, the omission is not fatal since the case management conference transcript reveals plaintiff was clearly aware the defendant was an orthodontist and plaintiff initially attempted (unsuccessfully) to retain an orthodontist expert for the AOM.

Conclusion: The judgment of the trial court is affirmed.


Parker v. Ortiz
Docket Number A-5868-11T1
Decided August 19, 2014 

Facts: Plaintiff experienced blurry vision and came under the care of defendant-ophthalmologist. Defendant observed occludable angles in both eyes and advised plaintiff that an iridotomy was the only alternative to blindness. Plaintiff developed ‘white line glare’ following surgery. Parties provided different accounts as to their discussions before and after the surgery. Post-operatively, plaintiff sought a second opinion and was advised that the surgery was not necessary since other treatment options were available. Plaintiff filed a Complaint alleging malpractice and lack of informed consent. Trial court dismissed the informed consent claim as a matter of law since plaintiff signed consent-for-treatment forms and failed to procure expert opinion that the risk of developing white line glare was known in the medical community at the time of surgery. A jury found defendant did not deviate from accepted standards of care. Plaintiff’s post-trial motions were denied. 

Issues: Whether plaintiff was required to submit expert testimony to support her informed consent claim and whether the motion for a new trial should be granted on the deviation from accepted standards of practice claim.

Rules: Informed consent claims require: (1) physician failed to comply with applicable standards of disclosure, (2) the undisclosed risk occurred and harmed plaintiff, (3) a reasonable person under the circumstances would not have consented to the operation had he been informed and (4) the operation was a proximate cause. Element 1 requires an expert to show the risk was one the defendant have been aware of because it was known in the medical community at the time, unless defendant admits to the existence of the risk.

Application: Expert testimony was not required to show the white line glare risk was known in the medical community since defendant admitted to reading literature about the risk; thus, dismissal as a matter of law was not appropriate. A new trial on the deviation claim is not warranted since the jury was free to accept defendant’s testimony that he observed occludable angles even though no other treating or examining physician supported that finding.  

Conclusion: Reversed summary judgment dismissal of informed consent claims.


Pederson v. Alvarez
Docket Number A-2268-12T2
Decided January 17, 2014

Facts: Plaintiff had a high-risk pregnancy due to her age and diabetes. She treated with defendant-specialists. Shortly before week thirty-seven, plaintiff presented for an unscheduled visit after she noticed a decrease in fetal movement while home. No physicians saw plaintiff, but staff performed an ultrasound and “biophysical profile” that yielded an 8/8 score. There was no record that plaintiff noticed decreased fetal movement at home. Later that day, defendant reviewed the results and did not find anything unusual, including a fetal heart rate (FHR) of 175 that was “not necessarily” a problem. At an exam the next day, plaintiff reported decreased fetal movement. Defendant advised plaintiff to return in five days for a final appointment and that labor would be induced shortly thereafter. At the final appointment, an ultrasound revealed the fetus died. Plaintiff’s expert concluded that the high FHR recorded at the un-scheduled visit should have alerted defendant that fetal distress may occur, and therefore, defendant failed to perform an appropriate follow-up stress test that increased the risk that the fetal condition would go undetected. Defendant’s expert opined the FHR was not a cause for concern and the biophysical profile was normal; thus, there was no need to recommend a stress test or early delivery. Jury returned a defense verdict on informed consent. Trial court denied a motion for a new trial and reconsideration. Appeal ensued. 

Issues: Does the verdict warrant a new trial in light of the evidence presented?

Rules: Jury verdicts are given considerable deference and should not be overthrown except on the basis of a carefully reasoned and factually supported determination, after canvasing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice; moreover, deference is given to the trial judge who observed the trial. 

Application: There was ample evidence for which the jury could have concluded the defendant did not withhold pertinent information from plaintiff.  The jury was not required to consider the plaintiff’s expert in isolation. The jury believed the “snapshot” FHR on the biophysical profile did not represent a baseline heart rate; thus, the FHR was “not necessarily” a problem. 

Conclusion: Affirmed.


Ringstaff v. Eakin
Docket Number A-5445-11T3
Decided February 21, 2014 

Facts: Decedent, 19, injured her knee in an ATV incident and presented to defendants for orthopedic care. Her weight and birth control usage were noted on a consultation questionnaire as risk factors for DVT (blood clots). MRI revealed an ACL tear. Decedent opted to undergo ACL surgery following a discussion of the risks involved and signed a consent form. Post-operatively, she received written discharge instructions. She experienced bleeding, leg pain and a red spot on her calf. Defendant examined her once more, but did not inquire into the red spot. Thereafter he advised his staff to telephonically prescribe more pain medication despite numerous telephone calls with pain complaints from decedent’s mother. Notably, none of those phone calls included that decedent appeared pale and lost her appetite. Staff did not ask nor record details concerning the location of the pain. Ten days after surgery, decedent presented for a second office visit when she explained to defendant the continued calf pain. Defendant immediately prescribed an ultrasound at the hospital. Ultrasound revealed a blood clot and defendant was notified. Moments later, decedent suffered a pulmonary embolism and lost consciousness. She died after being taken off life support. Plaintiff’s expert opined that the consent form and boilerplate discharge instructions failed to communicate that calf pain could be a symptom of blood clot, among other theories of malpractice. During the defense expert deposition, plaintiff placed on the record that this claim developed into an informed consent case given that blame was attributed on decedent’s post-operative actions. The trial court denied plaintiff’s request for an informed consent charge, but granted defendants’ request for a mitigation of damages charge.

Issues: Whether an informed consent charge was warranted given decedent was being charged with her own demise despite not being told calf pain could be life threatening.

Rules: The informed consent doctrine imposes a duty on the physician to disclose to the patient all medical information that a reasonably prudent patient would find material. See; Niemiera (114 N.J. 550)(physicians must alert patients to the potential consequences from symptoms/care so patient may act quickly to avoid those consequences) 

Application: Although the complaint is devoid of an information consent claim, the facts were established at trial to give rise to such a claim and entitle plaintiffs to submit the question to the jury whether defendant failed to provide adequate information regarding the risks of a given treatment. Similar to Niemiera, decedent failed to receive written information about the complete picture of risks involved. Decedent had a right to know about the risks posed by DVT and pulmonary embolism, to enable her to exercise reasonable care to protect her own health post-operatively. The failure to provide the jury with an informed consent charge clearly could produce an unjust result.

Conclusion:  Affirmed in part, reversed in part, and remanded for a new trial on the informed consent claim.


Seavey v. Globus Medical, Inc.
Civil No. 11-2240 (RBK/JS)  
Decided March 11, 2014

Facts: Action arises from an unsuccessful lumbar fusion surgery performed by defendant, who inserted a spinal fixation device manufactured by co-defendant. Defendant-surgeon offered 3 surgical options and plaintiff opted to proceed with L5-S1 fusion with stabilization at L4-5. The FDA-approved device was for stabilizing only fused vertebrae, but the surgeon proposed an “off-label” use for the device to stabilize the non-fused L4-5 level.  Patient signed a consent form. Post-operatively, the pain returned and a different surgeon removed the implanted device, and inserted a new instrument. Plaintiff brought claims on product liability against the defendant-manufacturer and a lack of informed consent against the defendant-surgeon. Plaintiff argued the implanted device was used ‘off-label’ than what the FDA approved since the device was used to stabilize a vertebrae level that was not fused. Despite the subsequent surgery and additional treatment, the plaintiff continued to suffer from back pain “of uncertain etiology”. All parties filed summary judgment motions on various causation and liability issues.

Issues: (i) Whether defendant-surgeon failed to comply with the reasonably prudent patient standard for disclosure of the proposed ‘off-label’ use. (ii) Whether a defendant-surgeon is strictly liable in product liability actions. 

Rules: (i) A physician must disclose all material information that a prudent patient might find significant for a determination of whether to undergo the proposed therapy; a failure to disclose an ‘off-label’ use of a FDA-approved device is, alone, insufficient for an informed consent claim. (ii) Physicians are not strictly liable in product liability actions, unless they had control over the design, manufacturing, packaging or labeling of the product, created the defect or knew or should know of the product defect.

Application: (i) Plaintiff cannot simply cite the ‘off-label’ use of the device as a stand-alone reason for his informed consent claim. Plaintiff needed to show, by expert testimony, that there was a known risk recognized within the medical community that the defendant-surgeon was or should have been aware of and disclosed that risk to the patient. No expert testimony was provided; thus the informed consent claim cannot survive summary judgment. (ii) Plaintiff did not submit evidence that the defendant-surgeon had any involvement in the design, manufacture and/or packaging of the device, nor that the surgeon knew or should know of the alleged defect.

Conclusion: Summary judgment is granted in favor of the medical provider defendants on this claim.


Williams v. Atlanticare Regional Medical Center
Docket No. A-1093-13T2
Decided September 3, 2014

Facts: Plaintiff injured her neck in a motor vehicle crash. Plaintiff underwent a spinal surgery that was jointly performed by the defendant-surgeons, who respectively specialize in neurological surgery and orthopedic surgery, and both are board certified in their specialties. Post-operatively, she experienced difficulty breathing and returned to the hospital to discover a tear in her pharynx, among other complications later discovered. A complaint was filed and a Ferreira conference set a deadline for any affidavits of merit. Plaintiff timely served an affidavit of merit of a board certified neurological surgeon specializing in spinal surgery. Immediately, defendant-orthopedist filed a motion to dismiss since the affidavit was not signed by an orthopedist. The court denied the motion given the defendant and affiant practiced in overlapping subspecialties of spine surgery. The matter proceeded to discovery and was assigned to a new judge before trial. During the discovery period Nicholas v. Mynster, 213 N.J. 463 (2013) was decided. On the event of trial, defendant-orthopedist filed a motion in limine to prevent plaintiff’s neurosurgeon expert from testifying beyond his specialty and that defendant was therefore entitled to summary judgment. Trial judge granted the motion in limine, but allowed plaintiff time to obtain a new expert report to comply with Nicholas. Defendant’s motion for reconsideration was granted, and the Trial judge granted summary judgment. This appeal ensued.

Issues: Whether a board certified neurosurgeon may offer expert opinion on the conduct of the defendant-orthopedic surgeon in the context of a spine surgery that does not “involve” either specialty or subspecialty?

Rule: An expert must be the same specialist or subspecialist as the party against whom or on whose behalf expert testimony is offered, and the care of treatment at issue “involves” that specialist or subspecialty. Further, if the defendant doctor is board certified in that specialty, the expert must either be board certified or must be credentialed by a hospital to treat patients with the condition that is the subject of the malpractice allegations.

Application: Plaintiff’s neurosurgeon expert does not specialize in orthopedic surgery and therefore cannot testify against the defendant-orthopedic surgeon. The court rejected plaintiff’s argument that the spinal surgery did not involve orthopedics surgery since the specialty of spinal surgery does not fall into any recognized specialty or subspecialty. Plaintiff’s surgery involved both specialties of neurosurgery and orthopedics; thus, plaintiff needs an equivalently qualified specialist to testify against each respective defendant. Notwithstanding the correct decision on expert qualification, the plaintiff should have been given time to retain an orthopedist expert and exchange a report.  Plaintiff cannot be faulted for relying on the court’s initial ruling that permitted his neurosurgeon to testify against the orthopedist. Plaintiff acted in good faith by submitting his initial Affidavit of Merit following the Ferreira conference that was not attended by counsel for the orthopedist. The goals of the affidavit of merit statute would not be met by an outright dismissal without an opportunity to correct an unforeseen circumstance. 

Conclusion: Affirmed in part, reversed in part, and remanded for further proceedings and trial in accordance with our decision.