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Transcript
Medical Malpractice Law in New Jersey
Excerpts from text of Abbott Brown, Esq.
With permission of author
EXPERT TESTIMONY
IN MALPRACTICE CASES
Medical malpractice cases usually require expert testimony to
establish the standard of care, to explain how that standard of
care was breached, and to demonstrate that the malpractice was
a proximate cause of the injuries. In most negligence cases, the
jury can determine the appropriate standard of care based upon its
collective knowledge and experience. However, in most malpractice
cases, the jury cannot establish the standard of care, and expert
testimony is required to assist the jury in this endeavor.
The litigation of a medical malpractice case requires a
comprehensive knowledge of the law of expert witnesses. The
law regarding expert testimony must be explained to the expert
in order to make certain that all of the elements of the claim or
defense are established, and to ensure that the expert’s opinions
are utilized to their best advantage. As such, the law regarding the
use of expert testimony in medical malpractice litigation demands
special attention. In many cases the ultimate outcome of the case
is determined by the credentials and credibility of the experts,
“boil[ing] down to a pitched battle between plaintiff’s expert and
defendant’s expert.”1 Honest experts will candidly expose and
discuss the strengths and weaknesses of the case.
At one time, finding experts was difficult because most physicians
would not testify against another physician. The Appellate Division
discussed this reluctance in Steiginga v. Thron,2 where plaintiff
sought an adjournment of the trial when plaintiff’s medical expert
refused to testify. Plaintiff was told that his expert had decided not
to testify against a “brother practitioner” on the Saturday before
the trial. The court noted:
The circumstances of the case must be looked at
in the light of—the matter is of sufficient public
concern to call for plain speaking—a shocking
unethical reluctance on the part of the medical
profession to accept its obligations to society and
its profession in an action for malpractice. … The
matter is perhaps complicated by cost of insurance
these days.3
Other cases spoke of the “conspiracy of silence” that existed in
the medical community.4
However, it now appears that the reluctance of experts to testify
for the plaintiff in a medical malpractice case has given way to a
cottage industry of professional witnesses “who take the stand for
a fee.”5 Although there is a plethora of experts willing to sell their
expertise, it is incumbent upon the attorney to make certain that the
expert witness is well credentialed and unbiased. Attorneys must
search for those experts who will tell the attorney whether the case
has merit, regardless of which side the opinion favors. Credibility
and credentials are the keys, and a meritorious case may well be
lost by reliance on an expert whose credibility or credentials are
found suspect.
1. Day v. Lorenc, 296 N.J. Super. 262, 269 (App. Div. 1996).
2. Steiginga v. Thron, 30 N.J. Super. 423 (App. Div. 1954).
3. Steiginga v. Thron, 30 N.J. Super. 423, 425 (App. Div. 1954).
4. See, e.g., Largey v. Rothman, 110 N.J. 204, 213 (1988) (citing Louisell and
Williams,
Medical Malpractice § 22.12 (1987)). Similarly, in Lewis v. Read, the trial
court noted the
difficulty that plaintiffs have in obtaining members of the medical
profession to testify in
malpractice cases. Lewis v. Read, 80 N.J. Super. 148 (App. Div. 1963).
5. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495 (1992).
As discussed in Chapter 1, medical malpractice is defined in terms
of a deviation from generally accepted medical standards. Expert
testimony is usually required to establish the generally accepted
medical standard. There are many cases which explain this point.
The Supreme Court addressed the need for expert testimony in
Sanzari v. Rosenfeld,6 distinguishing between ordinary negligence
and medical malpractice claims.7
The Sanzari Court first reiterated that negligence is conduct
which “falls below a standard recognized by the law as essential
to the protection of others from unreasonable risks of harm.”8
The Court explained that in the “ordinary negligence case,” expert
testimony is not required to establish the standard of care because
the jury is “competent to determine what precautions a reasonably
prudent man in the position of the defendant would have taken.”9
However, the Court acknowledged that expert testimony is usually
needed to establish the standard of care in medical malpractice
cases, explaining:
In the ordinary dental or medical malpractice case,
however, the jury is not competent to supply the
standard by which to measure the defendant’s
conduct. Since it has not the technical training
6. Sanzari v. Rosenfeld, 34 N.J. 128 (1961).
7. Sanzari v. Rosenfeld, 34 N.J. 128 (1961). In Sanzari, the plaintiff alleged
that the
defendant, a dentist, administered an anesthetic to his wife without taking a
proper medical
history. The plaintiff alleged that his wife suffered a cerebral hemorrhage as
a result of
the administration of the anesthetic, causing her death three days later. The
anesthetic
solution contained Xylocaine with Epinephrine. The Court noted that the
brochure which
accompanied the anesthetic stated that the Epinephrine was a
vasoconstricting drug, i.e.,
one which compresses the blood vessels in order to enhance the effect of
the anesthetic,
and that the administration of Epinephrine may increase the blood
pressure. For this
reason, the package insert advised that the use of Epinephrine was
contraindicated in
cases where the patient suffered from high blood pressure. The patient
suffered from
high blood pressure but since the dentist did not take a proper medical
history he did
not obtain this information. The dentist conceded that he was unaware that
the patient
had high blood pressure and that if he had known that she had high blood
pressure he
would have consulted with her physician before administering the
Epinephrine. Sanzari v.
Rosenfeld, 34 N.J. 128, 131-34 (1961).
8. Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961).
9. Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961).
necessary to determine the applicable standard
of care, it cannot, without more, form a valid
judgment as to whether the defendant’s conduct
was unreasonable under the circumstances.
Therefore, ordinarily when a physician or dentist
is charged with negligence in the treatment of a
patient, the standard of practice to which he failed
to adhere must be established by expert testimony.
In such cases, if plaintiff does not advance expert
testimony establishing an accepted standard of
care, it is proper for the court to grant a dismissal
at the close of the plaintiff’s case.10
Nevertheless, in Sanzari, the Court held that the failure to provide
expert testimony was not fatal to that case due to the doctrine of
common knowledge.11 However, in the typical medical malpractice
case, expert testimony is a prerequisite.12 Without such testimony
to assist the jury, plaintiffs may not be able to establish a prima
facie case of negligence.13
For example, in Carbone v. Warburton,14 in an early summary of
medical malpractice law, the court held that a plaintiff must prove
that the defendant deviated from generally recognized and accepted
medical standards and that expert testimony is normally required
to establish “the standards of practice and departure therefrom.”15
Similarly, in Renrick v. Newark16 the Appellate Division dismissed
a malpractice claim stating plaintiff failed to present a prima facie
negligence case after neglecting to call an expert witness to address
injuries allegedly resulting from defendant’s use of a particular
drug.17 The court concluded:
10. Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961).
11. See § 7-11 for discussion of the common knowledge doctrine.
12. Sanzari v. Rosenfeld, 34 N.J. 128, 141-44 (1961).
13. Renrick v. Newark, 74 N.J. Super. 200 (App. Div. 1962).
14. Carbone v. Warburton, 22 N.J. Super. 5 (App. Div. 1952), aff’d, 11 N.J.
418 (1953).
15. Carbone v. Warburton, 22 N.J. Super. 5, 10 (App. Div. 1952), aff’d, 11 N.J.
418 (1953).
16. Renrick v. Newark, 74 N.J. Super. 200 (App. Div. 1962).
17. Renrick v. Newark, 74 N.J. Super. 200 (App. Div. 1962). In Renrick,
plaintiff alleged
that the defendant negligently injected a drug resulting in severe burning of
both forearms
and widespread scarring. Defendant contended that administration of the
drug was
“unavoidable” due to plaintiff’s severe medical condition. Plaintiff did not
“challenge
the fact (alleged by defendant) that plaintiff’s life was ‘saved’ by the use of
the drug in
question.” Renrick v. Newark, 74 N.J. Super. 200, 202 (App. Div. 1962). The
plaintiff did not
Absent expert testimony, there was no proof that the
extent or quality of care given plaintiff, as revealed
by the hospital records, was inadequate. Without
such evidence plaintiff failed to establish a prima
facie case of negligence against the defendant.18
Thereafter, in Schueler v. Strelinger,19 the Supreme Court
restated the rationale for the requirement of expert testimony
in malpractice cases. In Schueler, the patient consulted with the
defendant for various abdominal complaints and the defendant
recommended surgery. Prior to the operation, the defendant
performed a prothrombin test to determine the rate at which the
patient’s blood coagulated, and the patient was cleared for the
surgery by her medical doctor. During the surgery, the patient lost
a substantial amount of blood. After the operation she continued
to bleed and she was returned to the operating room to locate the
source of the bleeding. The patient bled profusely after the second
operation, resulting in her death. Plaintiff’s expert testified that
the first prothrombin test revealed a deficient blood clotting rate
and that the defendant was negligent in failing to have a second
prothrombin test done prior to operating.
Nevertheless, the Supreme Court held that the expert’s testimony
did not create an issue of fact regarding the defendant’s deviation
from the standard of care. The Court cited the fact that plaintiff’s
expert conceded that hematology is a specialized field and that in
order to determine the normal prothrombin rate he depended on
another doctor to give him an answer. The expert also conceded
that if the patient’s coagulation rate was normal, then the
defendant did not commit malpractice. The Court held that the
plaintiff’s expert’s testimony “makes the conclusion inescapable
that he assumed the prothrombin rate specified in the questions
call an expert witness to testify and at the conclusion of plaintiff’s case the
court dismissed
the claim, stating:
It is incontrovertible that laymen would not know what Levophed is, its
purpose,
whether its use was warranted, and its dangers. Moreover, the jury would
be in no
position to judge the conduct of the doctors and nurses in administering it.
Renrick v. Newark, 74 N.J. Super. 200, 207 (App. Div. 1962).
18. Renrick v. Newark, 74 N.J. Super. 200. 208 (App. Div. 1962).
19. Schueler v. Strelinger, 43 N.J. 330 (1964).
was abnormal.”20 However, the Court observed that all of the
other doctors who were involved in the plaintiff’s care testified
that the prothrombin rate was not significant. Furthermore, the
Court observed that the patient had been cleared for surgery by
an internist and that the patient’s hematologist testified that the
prothrombin rate was borderline and “could be within normal
limits.”21 The Court therefore concluded:
We are satisfied from the record before us that
plaintiff’s medical proof was insufficient to raise
a factual issue as to whether decedent’s bloodcoagulation
rate was deficient or abnormal prior
to the first operation. Under the circumstances, it
was error to allow the jury to determine whether
Dr. Strelinger departed from standard medical
practice in failing to have the second test made.22
The Supreme Court then added, in language which was
incorporated into the then-existing Model Jury Charge:
The law recognizes that medicine is not an
exact science. Consequently it does not make the
physician a guarantor of the cure of the patient.
When he takes a case it imposes upon him the
duty to exercise in the treatment of his patient
the degree of care, knowledge and skill ordinarily
possessed and exercised in similar situations by the
average member of the profession practicing in
his field. Failure to have and to use such skill and
care toward the patient as result of which injury or
damage results constitutes negligence.
… With rare exceptions (and this case is not one
of them), evidence of a deviation from accepted
medical standards must be provided by competent
and qualified physicians. … Since there was no
competent proof in this instance that the exercise
of normal medical care required Dr. Strelinger to
20. Schueler v. Strelinger, 43 N.J. 330, 342 (1964).
21. Schueler v. Strelinger, 43 N.J. 330, 342 (1964).
22. Schueler v. Strelinger, 43 N.J. 330, 344 (1964).
have another prothrombin test, application of the
above principles called for withholding the question
from jury consideration.23
A careful review of Schueler reveals that plaintiff’s expert had
in fact established the standard of care and deviation from that
standard. The Court chose to disregard the factual basis for the
opinion by accepting the defendant’s expert’s opinion regarding
the prothrombin time, and thereby render the plaintiff’s expert’s
opinion insufficient.
Nevertheless, it is clear that the plaintiff must establish through
an expert that the defendant deviated from generally accepted
medical standards, not the personal standards of the expert—which
may well exceed the standard of care. This point was illustrated
in Fernandez v. Baruch,24 where the Supreme Court held that the
defendants should have been granted a summary judgment because
the plaintiff’s expert did not express accepted medical standards
but rather testified as to his personal opinion.
Of course, much more than the personal opinion
of a medical witness is necessary to establish a
standard of accepted medical practice. The expert
testimony must relate to generally accepted medical
standards, not merely to standards personal to the
witness. …
… Since there was no proof that generally
accepted medical standards required the defendant
doctors to conclude that Fernandez was likely to
attempt suicide, they cannot be said to be guilty of
malpractice.25
Another Supreme Court decision, Lanzet v. Greenberg,26 provides
an example of an unusual case in which the defendant’s expert
supplied the requisite expert testimony regarding the standard
of care. In Lanzet, the patient sustained brain damage as a result
of oxygen deprivation during cataract surgery. The surgery was
23. Schueler v. Strelinger, 43 N.J. 330, 344-45 (1964).
24. Fernandez v. Baruch, 52 N.J. 127 (1968).
25. Fernandez v. Baruch, 52 N.J. 127, 131-32 (1968).
26. Lanzet v. Greenberg, 126 N.J. 168 (1991).
performed by two ophthalmological surgeons with the assistance
of an anesthesiologist. During the surgery, the plaintiff’s pulse
dropped to 45 beats per minute. The anesthesiologist administered
atropine and the pulse returned to an acceptable level. Thereafter,
the pulse again fell below 40 beats per minute. The anesthesiologist
suggested that the operation be ended, but the surgeons continued
and the anesthesiologist again administered atropine. Finally, the
patient’s pulse dropped to 20 beats per minute and the patient
became cyanotic. The operating team then terminated the surgery
and attempted to resuscitate the plaintiff but she sustained
“global cerebral hypoxia,” or lack of blood to the brain, leaving
her in a chronic persistent vegetative state until her death thirteen
months later.27
The Court held that, despite the fact that the theory on which
plaintiff pursued the case was not viable, the issue of deviation
from the standard of care was nevertheless presented to the jury.
The Supreme Court noted that the trial court and then plaintiff’s
counsel had elicited the standard of care from defendant’s expert
who agreed that it would be “good, sound operating room
procedure” to be aware of the patient’s needs.28 The Court relied on
this testimony for its conclusion that the standard of care required
all physicians in the operating room to be aware of the patient’s
needs.29 The Court observed that the jury charge instructed the jury
“not to consider as proof of deviation all of the items of evidence
that we may consider in assessing the record of a trial. Proof of
deviation elicited from the defendants themselves, because they are
competent professionals, could be relied on by the jury.”30
The importance of making certain that the expert understands
precisely what opinions must be expressed was emphasized in a
trilogy of appellate decisions. The expert’s opinion must be clearly
27. Lanzet v. Greenberg, 126 N.J. 168, 174 (1991).
28. Lanzet v. Greenberg, 126 N.J. 168, 178 (1991).
29. Lanzet v. Greenberg, 126 N.J. 168, 178 (1991).
30. Lanzet v. Greenberg, 126 N.J. 168, 178, 191 (1991).
and specifically stated and within the bounds of reasonable medical
probability.
In Hearon v. Burdette Tomlin Memorial Hospital,31 the Appellate
Division explained that the expert must opine specifically in the
report that there is a deviation from the standard of care. Doing
so can avoid the potential that the expert’s testimony at trial may
be barred and the case dismissed. In Hearon, plaintiff alleged
that the defendants negligently treated him for chest pains over
a period of several months and as a result he suffered an acute
myocardial infarction. During the trial, but prior to the testimony
of plaintiff’s expert, counsel for the defendant moved to bar the
expert’s testimony or for “summary judgment,” based upon the
expert’s deposition testimony and report.32 The trial court granted
the defendant’s motion, but the Appellate Division reversed.
The appellate panel first noted that medical malpractice must
be established by expert testimony relating to generally accepted
medical standards. The court then noted that the trial court had
not reviewed the plaintiff’s expert’s report, and that in the report
the expert did render the opinion that there was a deviation from
the standard of care. The court explained that:
[T]he report does not spell out a deviation of
any medical standard in legal terms to a degree
of medical probability. Nevertheless, this failure
to specify a deviation of medical standards in
the appropriate legal terms is not fatal to this
case. Legal standards are usually talismanic to a
practicing physician unfamiliar with legal nuances
and terminology. Undoubtedly, before his trial
testimony, plaintiff’s attorney would have apprised
[plaintiff’s expert] that the legal requirement of
causation must be established to a reasonable degree
of medical probability. So informed, [plaintiff’s
31. Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98 (App. Div.
1986).
32. Hearon v. Burdette Tomlin Mem’l Hosp, 213 N.J. Super. 98, 101 (App. Div.
1986).
expert] could then respond more appropriately on
direct examination.33
Thus, where the meaning or language of an expert’s report is
not clear, a court should determine exactly what the expert means
prior to dismissing a case or striking a defense. It is rare that a case
should be dismissed based upon the reports alone, without the
opportunity to supplement or clarify the opinions. As the Hearon
court noted, “the better procedure would have been first, for the
trial judge to examine the medical report and, if he had any doubt
as to the sufficiency of the proper proofs he should then have
questioned plaintiff’s expert out of the presence of a jury before
granting a summary judgment.”34 The court added:
In complex cases such as a medical malpractice
action, reliance upon facts developed at discovery
as constituting all of the relevant facts may lead to
an inaccurate factual assessment. In depositions,
discovery may be limited to certain critical areas
which the deposing party may wish to develop and
establish. Where a party’s witness is being deposed,
the party is not required and for strategic purposes
may not desire, to fill in any gaps submitted or
glossed over by the deposing party. Nor is a party
required to present all facts at the deposition.35
The Hearon court therefore concluded that it was error to
grant summary judgment based solely on the expert reports and
deposition, and reversed and remanded for a new trial. Although
in Hearon the plaintiff averted summary judgment, the case
demonstrates the need to emphasize to experts the requirement
of clarity and specificity in their reports to avoid the potential
dismissal of a case.
Reasonable Medical Probability
The expert witness should be instructed regarding the definition
of “reasonable medical probability,” and should be told that any
33. Hearon v. Burdette Tomlin Mem’l Hosp, 213 N.J. Super. 98, 103 (App. Div.
1986).
34. Hearon v. Burdette Tomlin Mem’l Hosp, 213 N.J. Super. 98, 103 (App. Div.
1986).
35. Hearon v. Burdette Tomlin Mem’l Hosp, 213 N.J. Super. 98, 104 (App. Div.
1986).
opinions rendered should only be rendered to the extent they are
reasonably medically probable.
The need for an expert to be able to testify to a reasonable medical
probability was discussed in Schrantz v. Luancing.36 In Schrantz,
plaintiff’s decedent died from a pulmonary embolism. Plaintiff’s
expert testified without objection that in his opinion, based upon
“reasonable medical certainty,” four of the five defendants were
negligent. When the expert was asked the same question about the
fifth defendant, counsel for that defendant objected and sought
to interrogate the plaintiff’s expert regarding the meaning of the
phrase “reasonable medical certainty.” The court overruled the
objection and stated that since the witness had been qualified as
an expert, no further foundation was necessary. Plaintiff’s counsel
did not ask his expert whether he understood the meaning of the
phrase “reasonable medical certainty.”
On cross-examination, counsel for the defendant asked the
doctor to define “reasonable medical probability.” It became clear
that the doctor could not define “reasonable medical certainty”
nor “reasonable medical probability.” The doctor also could not
define “acceptable standards of medical practice” and later agreed
that “acceptable standards of medical practice” were the same
as “reasonable medical probability.”37 Plaintiff’s counsel did not
conduct any re-direct regarding the expert’s understanding of
the phrase “reasonable medical probability.” The court thereafter
struck the expert’s testimony, noting that “medical opinion
testimony must be couched in terms of reasonable medical certainty
or probability.”38 The Schrantz court explained that:
Reasonable medical certainty or probability refers
to the general consensus of recognized medical
thought and opinion concerning the probabilities of
conditions in the future based on present conditions.
… If the cross-examination of [plaintiff’s expert]
established that he did not understand the meaning
of the phrase reasonable medical probability or
36. Schrantz v. Luancing, 218 N.J. Super. 434 (Law Div. 1986).
37. Schrantz v. Luancing, 218 N.J. Super. 434, 438 (Law Div. 1986).
38. Schrantz v. Luancing, 218 N.J. Super. 434, 439 (Law Div. 1986) (citing
Germann v.
Matriss, 55 N.J. 193 (1970)).
certainty, then his testimony must be stricken
because it cannot be said that the opinions he gave
were based on reasonable medical probability.39
Accordingly, the court struck the expert’s testimony and
instructed the jury to disregard it.
The issue of whether the opinion regarding deviation from the
standard of care, as opposed to an opinion regarding causation
or damages, must be expressed in terms of reasonable medical
probability was resolved in Bondi v. Pole.40 In Bondi, plaintiff had
been stabbed in the face with a ball point pen and a piece of the
pen broke off and lodged in plaintiff ’s sinus. Plaintiff later was
treated by the defendants who did not order X-rays which would
have detected the broken piece of the pen. The fragment went
undetected for 12 years, until it was discovered when plaintiff
had dental X-rays. After plaintiff ’s expert testified, defendant
moved to strike the expert’s testimony, arguing that he had not
expressed “an opinion on the issue of deviation from accepted
standards of medical practice, that the deviation occurred within
a reasonable degree of medical certainty.”41 The trial judge
allowed the expert to return to the stand and plaintiff ’s expert
testified that the defendants deviated from the standard of care
to a reasonable degree of medical probability.42 However, on
cross-examination, the expert was not able to define the phrase
“a reasonable degree of medical probability.” The doctor stated
that medical probability means “within the realm of common
sense and normalcy.”43 The trial court thereafter suppressed
the expert’s testimony due to the inability to define probability
in terms of “more likely than not.” However, the Appellate
Division reversed, noting that although the expert did not give
“a satisfactory definition of the concept of medical probability,”
such testimony was irrelevant since the expert was not required
to testify that there was a deviation from the standard of care to
a reasonable medical probability.
39. Schrantz v. Luancing, 218 N.J. Super. 434, 439 (Law Div. 1986).
40. Bondi v. Pole, 246 N.J. Super. 236 (App. Div. 1991).
41. Bondi v. Pole, 246 N.J. Super. 236, 238 (App. Div. 1991).
42. Bondi v. Pole, 246 N.J. Super. 236, 239 (App. Div. 1991).
43. Bondi v. Pole, 246 N.J. Super. 236, 239 (App. Div. 1991).
The trial judge confused the foundation required for
expressing an opinion that there was a deviation with
the foundation required for expressing an opinion
that the deviation caused the patient’s injuries.
….
The foundation for an expert witness’s opinion that
there was a deviation is that the deviation was from
an accepted medical standard, and not simply from
the expert’s personal standard. The foundation for
an expert witness’s opinion that the deviation caused
the patient’s injuries, however, is that the causal
connection is a reasonable medical probability.44
The importance of the expert opinion was demonstrated in
Ritondo v. Pekala.45 In Ritondo, while testifying, plaintiff’s expert
“reconsidered his opinion” regarding defendant’s deviation from
the standard of care and the court subsequently concluded that
such “negation of [expert’s] direct testimony” left plaintiff without
expert proof supporting a case. In Ritondo, plaintiffs alleged that
an obstetrician improperly managed the pregnancy of Ms. Ritondo
and the delivery of their child, and that as a result their child was
born with severe mental and physical disabilities. Plaintiff’s expert
testified that the defendant deviated from generally accepted
standards of care in four ways: (1) induction of delivery without
an attempt to determine the maturity of the infant; (2) failure
to recognize fetal distress and asphyxia; (3) failure to perform a
cesarean section on an emergency basis; and (4) failure to consult
a specialist regarding the mother’s diabetes.
On cross-examination, the expert testified that given the
circumstances of the case the failure to perform a cesarean
section was not a deviation from the standard of care, thus
abandoning claims 2 and 3. In fact, the expert conceded that
defense counsel can “cross off number 2 and 3.”46 The expert then
44. Bondi v. Pole, 246 N.J. Super. 236, 240 (App. Div. 1991).
45. Ritondo v. Pekala, 275 N.J. Super. 109 (App. Div. 1994).
46. Ritondo v. Pekala, 275 N.J. Super. 109, 113 (App. Div. 1994).
conceded that there was “no evidence of any lack of maturity
of the fetus,” therefore eliminating claim number 1. Finally, the
doctor “reconsidered his opinion” that the defendant should
have consulted a diabetes specialist prior to inducing labor. The
expert acknowledged that since the infant’s blood sugar was
normal, the lack of a consultation was not a proximate cause
of any injuries. Although counsel for plaintiff attempted to
rehabilitate the expert on re-direct, on re-cross examination the
expert “once again abandoned his allegations of negligence”
against the defendant.47 At the end of the expert’s testimony, the
trial court dismissed the case. The Appellate Division affirmed,
reiterating that the plaintiff in a medical malpractice case must
establish the standard of care and deviation therefrom by expert
testimony.48 The Appellate Division concluded that the expert’s
“negation of his direct testimony was a clear and unequivocal
withdrawal of his opinion” and that as a result, “the Ritondos
were left without proof of any deviation of the standard of care,
a necessary element of their claim.”49
QUALIFICATION OF EXPERTS AND THE
PATIENTS FIRST ACT
A witness may only testify about “scientific, technical or other
specialized knowledge which will assist the trier of fact” if the
witness is qualified as an expert in the subject matter of the
testimony.50
Given the critical importance of expert testimony in medical
malpractice litigation, it is no surprise that the issues which arise
in connection with the qualification of expert witnesses have
resulted in a substantial body of caselaw. Legislation has also been
introduced affecting the qualification of expert witnesses.
47. Ritondo v. Pekala, 275 N.J. Super. 109, 115 (App. Div. 1994).
48. Ritondo v. Pekala, 275 N.J. Super. 109, 115 (App. Div. 1994).
49. Ritondo v. Pekala, 275 N.J. Super. 109, 116 (App. Div. 1994).
50. N.J. R. Evid. 702.
Qualification of Expert Witnesses After
the New Jersey Medical Care Access and
Responsibility and Patients First Act
Same Specialty Required for Expert
In 2004, the New Jersey Legislature enacted the New Jersey
Medical Care Access and Responsibility and Patients First Act
(The Patients First Act).102 This statute changes the manner in which
medical malpractice cases will be litigated, particularly with regard
to expert testimony. The following is a description of the Act’s
provisions regarding expert witness qualification. For description
of other provisions that affect medical malpractice, see § 7-4.
The Patients First Act now mandates that if the defendant
is a specialist or subspecialist, and the treatment involves that
specialty or subspecialty, the expert must specialize at the time of
the occurrence in the same specialty or subspecialty. Additionally,
embryos, never ventured outside the cardio-vascular field and never
examined
the infant plaintiff, and was not qualified to do so. [Plaintiff ’s expert]
ventured
a net opinion without any past medical history of plaintiff and without any
knowledge of the facts and circumstances concerning the dosage
prescribed for
plaintiff and the number of times plaintiff ingested Bendectin. The
superficial
‘research’ conducted by [plaintiff ’s expert] cannot reasonably be
considered a
proper foundation for his opinion. An expert’s opinion which lacks a
proper
foundation is ‘not worthy of consideration.’ Jakubowski v. Minnesota Mining
and Manufacturing, 42 N.J. 177, 187 (1964); see also Buckelew v. Grossbard, 87
N.J. 512, 524 (1981) (‘[A]n expert’s bare conclusions, unsupported by
factual
evidence, is inadmissible.’).
Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230, 242-43 (App. Div.
1988).
101. Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230 (App. Div.
1988).
However, in Adamson v. Chiovaro, 308 N.J. Super. 70 (App. Div. 1998), the
court held that a
neuropsychologist could testify as to the plaintiff’s cognitive deficits. The
court distinguished
Crespo v. McCartin, 244 N.J. Super. 413 (App. Div. 1990) and Thompson v.
Merrell Dow
Pharmaceuticals, 229 N.J. Super. 230 (App. Div. 1988).
102. See N.J.S.A. 2A:53A-38, et seq. See the Appendix for information
about how to find
the statute online.
if the defendant is board certified, the expert witness must have
the same board certifications or be credentialed by a hospital
to treat patients for the medical condition, or to perform the
procedure, that is the basis for the claim. The latter provision
may permit, for example, an orthopedist who has been granted
privileges to perform spinal surgery to render the affidavit of
merit and to testify against a neurosurgeon in a case involving
spinal surgery. This provision is therefore consistent with prior
case law permitting a physician in a different specialty than the
defendant’s to testify when there are common or overlapping
areas in their practice and experience, subject to the conditions
discussed below.103
Applicability of Same Specialty Requirement
N.J.S.A. 2A:53A-41 provides that if a party offering or opposing
the expert testimony
is a specialist or subspecialist recognized by the
American Board of Medical Specialties or the
American Osteopathic Association and the care
or treatment at issue involves that specialty or
subspecialty … the person providing the testimony
shall have specialized at the time of the occurrence
… in the same specialty or subspecialty.
As such, this provision only applies:
1) to physicians, and not other medical practitioners
2) those experts who are called to testify about deviations
from, or compliance with, the standard of care.
Obviously, the statute could not be deemed to apply to:
1) medical practitioners other than physicians
103. See § 7-3:2, et seq.; see also Burns v. Belafsky, 166 N.J. 466 (2001), aff’g
326 N.J. Super.
462 (App. Div. 1999) (neurosurgeon was qualified to render the affidavit of
merit against a
radiologist); Wacht v. Farooqui, 312 N.J. Super. 184 (App. Div. 1998)
(plaintiff alleged that
the defendant, a radiologist, failed to diagnose a dislocated shoulder, and
served an affidavit
of merit from an orthopedic surgeon who specialized in the “care and
treatment of the
shoulder;” overlap in practice between medical professionals justified
orthopedic surgeon
testifying in case against radiologist) (citing Rosenberg by Rosenberg v. Cahill, 99
N.J. 318
(1985) (a medical doctor competent to establish the standard of care as to a
chiropractor),
and Sanzari v. Rosenfeld, 34 N.J. 128 (1961) (anesthesiologist established
standard of care
as to a dentist who administered Xylocaine)).
2) experts who are called to testify about proximate
causation
3) experts testifying about damages.
Furthermore, if the party is “board certified and the care or
treatment at issue involves that board specialty or subspecialty,”
the expert witness must be
credentialed by a hospital to treat patients for the
medical condition, or to perform the procedure,
that is the basis for the claim or action; or … a
specialist or subspecialist recognized by the
American Board of Medical Specialties or the
American Osteopathic Association who is board
certified in the same specialty or subspecialty.104
Since only physicians are recognized by the American Board of
Medical Specialties or the American Osteopathic Association, this
section only applies to physicians.
If the defendant is a “general practitioner,” the expert witness,
during the year immediately preceding the date of the occurrence
that is the basis for the claim or action, must have spent the
majority of his professional time in “active clinical practice as a
general practitioner; or active clinical practice that encompasses the
medical condition, or that includes performance of the procedure,
that is the basis of the claim” or to teaching “in an accredited
medical school, health professional school, or accredited residency
or clinical research program in the same health care profession” as
the defendant.105
Finally, long-retired experts need not apply. The statute adds that
“during the year immediately preceding the date of the occurrence
that is the basis for the claim or action” the expert
shall have devoted a majority of his professional
time to either (a) . . . the active clinical practice of the
same health care profession in which the defendant
is licensed, and, if the defendant is a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
104. N.J.S.A. 2A:53A-41.
105. N.J.S.A. 2A:53A-41.
Association, the active clinical practice of that
specialty or subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association; or (b) the instruction of
students in an accredited medical school, … in the
same health care profession in which the defendant
is licensed.106
The statute provides that a court:
may waive the same specialty or subspecialty …
requirements of this section, upon motion by the
party seeking a waiver, if, after the moving party
has demonstrated to the satisfaction of the court
that a good faith effort has been made to identify
an expert in the same specialty or subspecialty,
the court determines that the expert possesses
sufficient training, experience and knowledge
to provide the testimony as a result of active
involvement in, or full-time teaching of, medicine
in the applicable area of practice or a related field
of medicine.107
The Specialties and Sub-specialties Recognized
by the American Board of Medical Specialties
or the American Osteopathic Association
The list of recognized specialties can be found at the websites for
the American Board of Medical (ABMS) specialties for medical
doctors (M.D.) and the American Osteopathic Association (AOA)
for osteopaths (D.O.). See, e.g.: http://www.abms.org and http://
www.osteopathic.org.
The ABMS website lists the following recognized specialties and
subspecialties:
106. N.J.S.A. 2A:53A-41.
107. N.J.S.A. 2A:53A-41.
American Board of Allergy and Immunology
American Board of Anesthesiology
Critical Care Medicine
Hospice and Palliative Medicine
Pain Medicine
Pediatric Anesthesiology
Sleep Medicine
American Board of Colon and Rectal Surgery
American Board of Dermatology
Dermatopathology
Pediatric Dermatology
American Board of Emergency Medicine
Emergency Medicine
Anesthesiology Critical Care Medicine
Emergency Medical Services
Hospice and Palliative Medicine
Internal Medicine-Critical Care Medicine
Medical Toxicology
Pediatric Emergency Medicine
Sports Medicine
Undersea and Hyperbaric Medicine
American Board of Family Medicine
Adolescent Medicine
Geriatric Medicine
Hospice and Palliative Medicine
Sleep Medicine
Sports Medicine
American Board of Internal Medicine
Adolescent Medicine
Adult Congenital Heart Disease
Advanced Heart Failure and Transplant
Cardiology
Cardiovascular Disease
Clinical Cardiac Electrophysiology
Critical Care Medicine
Endocrinology, Diabetes and Metabolism
Gastroenterology
Geriatric Medicine
Hematology
Hospice and Palliative Medicine
Infectious Disease
Interventional Cardiology
Medical Oncology
Nephrology
Pulmonary Disease
Rheumatology
Sleep Medicine
Sports Medicine
Transplant Hepatology
American Board of Medical Genetics
Clinical Biochemical Genetics
Clinical Cytogenetics
Clinical Genetics
Clinical Molecular Genetics
Medical Biochemical Genetics
Molecular Genetic Pathology
American Board of Neurological Surgery
American Board of Nuclear Medicine
American Board of Obstetrics and Gynecology
Critical Care Medicine
Female Pelvic Medicine and Reconstructive Surgery
Gynecologic Oncology
Hospice and Palliative Medicine
Maternal and Fetal Medicine
Reproductive Endocrinology/Infertility
American Board of Ophthalmology
American Board of Orthopaedic Surgery
Orthopaedic Sports Medicine
Surgery of the Hand
American Board of Otolaryngology
Neurotology
Pediatric Otolaryngology
Plastic Surgery Within the Head and Neck
Sleep Medicine
American Board of Pathology
Pathology-Anatomic/Pathology-Clinical
Pathology - Anatomic
Pathology - Clinical
Blood Banking/Transfusion Medicine
Clinical Informatics
Cytopathology
Dermatopathology
Neuropathology
Pathology - Chemical
Pathology - Forensic
Pathology - Hematology
Pathology - Medical Microbiology
Pathology - Molecular Genetic
Pathology - Pediatric
American Board of Pediatrics
Adolescent Medicine
Child Abuse Pediatrics
Developmental-Behavioral Pediatrics
Hospice and Palliative Medicine
Medical Toxicology
Neonatal-Perinatal Medicine
Neurodevelopmental Disabilities
Pediatric Cardiology
Pediatric Critical Care Medicine
Pediatric Emergency Medicine
Pediatric Endocrinology
Pediatric Gastroenterology
Pediatric Hematology-Oncology
Pediatric Infectious Diseases
Pediatric Nephrology
Pediatric Pulmonology
Pediatric Rheumatology
Pediatric Transplant Hepatology
Sleep Medicine
Sports Medicine
American Board of Physical Medicine and Rehabilitation
Physical Medicine and Rehabilitation
Brain Injury Medicine
Hospice and Palliative Medicine
Neuromuscular Medicine
Pain Medicine
Pediatric Rehabilitation Medicine
Spinal Cord Injury Medicine
Sports Medicine
American Board of Plastic Surgery
Plastic Surgery Within the Head and Neck
Surgery of the Hand
American Board of Preventive Medicine
Aerospace Medicine
Occupational Medicine
Public Health and General Preventive Medicine
Clinical Informatics
Medical Toxicology
Undersea and Hyperbaric Medicine
American Board of Psychiatry and Neurology
Neurology with Special Qualification in Child Neurology
Addiction Psychiatry
Brain Injury Medicine
Child and Adolescent Psychiatry
Clinical Neurophysiology
Epilepsy
Forensic Psychiatry
Geriatric Psychiatry
Hospice and Palliative Medicine
Neurodevelopmental Disabilities
Neuromuscular Medicine
Pain Medicine
Psychosomatic Medicine
Sleep Medicine
Vascular Neurology
American Board of Radiology
Diagnostic Radiology
Interventional Radiology and Diagnostic Radiology
Radiation Oncology
Medical Physics
Hospice and Palliative Medicine
Neuroradiology
Nuclear Radiology
Pediatric Radiology
Vascular and Interventional Radiology
American Board of Surgery
Vascular Surgery
Complex General Surgical Oncology
Hospice and Palliative Medicine
Pediatric Surgery
Surgery of the Hand
Surgical Critical Care
American Board of Thoracic Surgery
Congenital Cardiac Surgery
American Board of Urology
Female Pelvic Medicine and Reconstructive Surgery
Pediatric Urology
AOA Recognized Specialties
The AOA website lists the following specialties and sub-specialties:
Anesthesiology
Critical Care Medicine
Pain Management
Dermatology
Dermatopathology
MOHS-Micrographic Surgery
Emergency Medicine
Emergency Medical Services
Medical Toxicology
Sports Medicine
Family Physicians
Adolescent/Young
Geriatric Medicine
Sports Medicine
Undersea and Hyperbaric Medicine
Hospice and Palliative Medicine
Sleep Medicine
Internal Medicine
Allergy/Immunology
Cardiology
Endocrinology
Gastroenterology
Hematology
Infectious Disease
Pulmonary Diseases
Nephrology
Oncology
Rheumatology
Addiction Medicine
Critical Care Medicine
Clinical Cardiac Electrophysiology
Interventional Cardiology
Geriatric Medicine
Sports Medicine
Undersea and Hyperbaric Medicine
Hospice and Palliative Medicine
Sleep Medicine
Neurology & Psychiatry
Child/Adolescent
Psychiatry
Child/Adolescent Neurology
Addiction Medicine
Neurophysiology
Geriatric Psychiatry
Hospice and Palliative Medicine
Sleep Medicine
Neuromusculoskeletal Medicine
Neuromusculoskeletal Medicine & OMM
Sports Medicine
Pain Medicine
Obstetrics & Gynecology
Gynecologic Oncology
Maternal and Fetal Medicine
Reproductive Endocrinology
Female Pelvic Medicine/Reconstructive Surgery
Ophthalmology and Otolaryngology
Otolaryngology/Facial Plastic Surgery
Otolaryngic Allergy
Sleep Medicine
Orthopedic Surgery & Pathology
Hand Surgery
Pathology
Laboratory Medicine
Anatomic Pathology
Anatomic Pathology & Laboratory Medicine
Forensic Pathology
Hand surgery
Pediatrics
Adolescent & Young Adult Medicine
Neonatology
Allergy/Immunology
Pediatric Endocrinology
Sports Medicine
Physical Medicine & Rehabilitation
Sports Medicine
Hospice & Palliative Medicine
Pain Medicine
Preventive Medicine
Preventive Medicine/Aerospace Medicine
Preventive Medicine/Occupational-Environmental
Medicine
Preventive Medicine/Public Health
Occupational Medicine
Undersea and Hyperbaric Medicine
Proctology
Radiology
Diagnostic Radiology
Radiation Oncology
Neuroradiology
Pediatric Radiology
Vascular & Interventional Radiology (formerly Angiography &
Interventional Radiology)
Surgery
Neurological Surgery
Plastic & Reconstructive Surgery
Thoracic Cardiovascular Surgery
Urological Surgery
General Vascular Surgery
Scope of Practice for Specialties
The ABMS and AOA websites also define the scope of practice
for each specialty. For example the ABMS member board,
American Board of Family Medicine, defines family medicine as
follows:
Family physicians deliver a range of acute, chronic
and preventive medical care services. In addition to
diagnosing and treating illness, they also provide
preventive care, including routine checkups, healthrisk
assessments, immunization and screening
tests, and personalized counseling on maintaining
a healthy lifestyle. Family physicians also manage
chronic illness, often coordinating care provided
by other subspecialists.108
Additionally, ABMS Member board, American Board of Internal
Medicine defines the Internal Medicine specialty as follows:
An Internist is a personal physician who provides
long-term, comprehensive care in the office and in
the hospital, managing both common and complex
illnesses of adolescents, adults and the elderly.
Internists are trained in the diagnosis and treatment
of cancer, infections and diseases affecting the
heart, blood, kidneys, joints and the digestive,
respiratory and vascular systems. They are also
trained in the essentials of primary care internal
medicine, which incorporates an understanding
of disease prevention, wellness, substance abuse,
mental health and effective treatment of common
108. American Board of Medical Specialties,
http://www.certificationmatters.org/abmsmemberboards/family-medicine.aspx.
problems of the eyes, ears, skin, nervous system
and reproductive organs.109
Overlap Between Specialties
Finally, it should be noted that there is a substantial amount
of overlap between the medical specialties. For example, “hand
surgery” is listed as a sub-specialty of the American Boards of
Orthopaedic Surgery, Plastic Surgery, and Surgery, and the AOA
Boards of Orthopedic Surgery & Pathology. Similarly, “sports
medicine” is listed by 10 different Boards as a sub-specialty,
i.e., the American Boards of Emergency Medicine, Family
Medicine, Internal Medicine, Orthopaedic Surgery, Pediatrics
and the AOA Boards of Emergency Medicine, Internal Medicine,
Neuromusculoskeletal Medicine, Pediatrics, and Physical
Medicine & Rehabilitation. Indeed, there are four Boards which
list “Undersea and Hyperbaric Medicine” as a specialty.
This has major implications for the qualification of expert
witnesses, because many specialties and subspecialties treat
the same condition. For example, does the standard of care for
treatment of chest pain differ between an internist and a family
doctor? Does the standard of care for treatment of post-operative
infection fusion differ for an orthopedic surgeon, a neurosurgeon,
or an internist sub-certified in Infectious Disease?
7-3:3.4 Constitutionality Challenged
The Patients First Act is contrary to long settled law in New Jersey
regarding the qualification of the expert witness. Additionally, it has
been suggested that similar requirements relating to the Affidavit of
Merit Statute may be unconstitutional.110 This was an argument first
109. American Board of Medical Specialties,
http://www.certificationmatters.org/abmsmemberboards/internal-medicine.aspx.
110. See, e.g., the discussion of Justice Zazzali in his concurrence in Ferreira
v. Rancocas
Orthopedic Associates, 178 N.J. 144, 159-69 (2003) (Zazzali, J. concurring).
Justice Zazzali
observed that “the conflicts between our rules and the Affidavit of Merit
Statute, coupled
with the fine distinctions that we have drawn to avoid the injustice that
flows from the
statute’s strict application, suggest a possible constitutional infirmity.”
Ferreira v. Rancocas
Orthopedic Assocs., 178 N.J. 144, 167 (2003) (Zazzali, J. concurring). Justice
Zazzali
suggested that the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 et seq., as
it then existed,
appeared to conflict with N.J. Const. Art. VI, §2, ¶3, which states “The
Supreme Court shall
make rules governing the administration of all courts in the State and,
subject to the law, the
practice and procedure in all such courts.” Justice Zazzali also cited
Winberry v. Salisbury,
advanced by the various bar associations that appeared as Amicus
in Cornblatt v. Barow,111 although the Cornblatt Court declined
to decide the issue at that time.112 If anything, the changes to the
Affidavit of Merit Statute and the changes in the requirements for
expert testimony trespass much deeper upon the exclusive obligation
of our Supreme Court to make the rules governing the administration
of the courts and the practice and procedure in all such courts.113
In Nicholas v. Mynster,114 the Supreme Court interpreted the
provisions of the New Jersey Medical Care Access and Responsibility
and Patients First Act, N.J.S.A. 2A:53A-41, which control the
qualifications of expert witnesses who testify for or against “defendant
physicians” in medical malpractice cases. The Court briefly addressed
the constitutionality of the statute, and declined to address the issue:
NJAJ also raises issues that have never been raised
by plaintiffs in the trial court, Appellate Division,
or this Court. NJAJ asserts that the Patients
First Act violates Article VI of the New Jersey
Constitution, which vests in the Supreme Court
authority over the rules of procedure in our courts,
N.J. Const. art VI., § 2, ¶ 3, and the Evidence Act of
1960, N.J.S.A. 2A:84A-33 to -44, which establishes
a procedure for creating new rules of evidence.
‘[A]s a general rule an amicus curiae must accept
the case before the court as presented by the parties
and cannot raise issues not raised by the parties.’
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp.
Educ. Ass’n, 91 N.J. 38, 48-49 (1982) (citing Byram
Twp. Bd. of Educ. v. Byram Twp. Educ. Ass’n, 152
N.J. Super. 12, 18 (App. Div. 1977); Endress v.
Brookdale Cmty. Coll., 144 N.J. Super. 109, 123 n.6
(App. Div. 1976)). We did not grant certification on
the additional issues raised by NJAJ. We decline to
address these issues because they were not argued
5 N.J. 240 (1950) and Knight v. Margate, 86 N.J. 374 (1981). See also The
Rule-making
Power: Subject to Law?, 5 Rutgers L. Rev. 376, 387 (1951).
111. Cornblatt v. Barow, 153 N.J. 218 (1998).
112. Cornblatt v. Barow, 153 N.J. 218, 248 (1998).
113. See N.J. Const. art. VI, § 2, ¶3.
114. Nicholas v. Mynster, 213 N.J. 463 (2013).
by the parties or considered by the trial court and
are therefore not properly before this Court.115
Affidavit of Merit
The Affidavit of Merit Statute requires that a plaintiff in a
malpractice action provide an expert’s preliminary opinion that
there is a “reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment … fell outside acceptable
professional occupational standards or treatment practices.”116
The Patients First Act amends the Affidavit of Merit Statute117 to
require that the affidavit of merit be provided by a person meeting
the requirements to qualify as an expert witness under N.J.S.A.
2A:53A-41 discussed above. N.J.S.A. 2A:53A-27 states:
In any action for damages for personal injuries,
wrongful death or property damage resulting from
an alleged act of malpractice or negligence by a
licensed person in his profession or occupation,
the plaintiff shall, within 60 days following the
date of filing of the answer to the complaint by the
defendant, provide each defendant with an affidavit
of an appropriate licensed person that there exists
a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint,
fell outside acceptable professional or occupational
standards or treatment practices. The court may
grant no more than one additional period, not to
exceed 60 days, to file the affidavit pursuant to this
section, upon a finding of good cause. In the case
of an action for medical malpractice, the person
executing the affidavit shall meet the requirements of
a person who provides expert testimony or executes
an affidavit as set forth in section 7 of P.L.2004,
c.17 (C.2A:53A-41). In all other cases, the person
115. Nicholas v. Mynster, 213 N.J. 463, 477 n.13 (2013).
116. N.J.S.A. 2A:53A-27.
117. N.J.S.A. 2A:53A-27. See § 7-5, et seq., for a detailed discussion of the
Affidavit of
Merit Statute.
executing the affidavit shall be licensed in this or any
other state; have particular expertise in the general
area or specialty involved in the action, as evidenced
by board certification or by devotion of the person’s
practice substantially to the general area or specialty
involved in the action for a period of at least five
years. The person shall have no financial interest
in the outcome of the case under review, but this
prohibition shall not exclude the person from being
an expert witness in the case.
Thus, the same comments regarding the qualification of an
expert apply to the qualifications of the person who executes the
affidavit of merit. As a result of this statute, an attorney pursuing
a medical malpractice case should in appropriate cases check the
board certification status of every potential defendant. The website
www.njdoctorlist.com lists the qualifications and board certifications
of every doctor licensed to practice medicine in New Jersey. See
discussion in § 7-5, et seq., regarding the Affidavit of Merit Statute.
Equivalently Qualified
The qualification of an expert to testify against a doctor who is
a specialist in another field of medicine was considered in Buck v.
Henry.118 In Buck, the Supreme Court reversed the dismissal of
118. Buck v. Henry, 207 N.J. 377 (2011). In Buck, the plaintiff sued
defendant, who was
board certified in emergency medicine but who was maintaining a family
medicine practice.
The defendant diagnosed the plaintiff as suffering from depression and
insomnia, and
prescribed an anti-depressant and a sleep aid. Several weeks after the
defendant prescribed the
medication, the plaintiff fell asleep while inspecting a hand gun. The
plaintiff was awakened
by a phone ringing. The plaintiff reached for the phone, but placed the gun
in his mouth and
it discharged, resulting in severe injuries. Buck v. Henry, 207 N.J. 377, 384
(2011).
The plaintiff alleged that the defendant was negligent, and served an
affidavit of
merit signed by a psychiatrist. The defendant asserted that the psychiatrist
was not
qualified to render the affidavit because the defendant was a family
practitioner. The
plaintiff then served a second affidavit of merit signed by a physician
specializing in
emergency medicine, because the website of the N.J. Division of
Consumer Affairs, www.
njdoctorlist.com indicated that the defendant was board certified in
emergency medicine.
The defendant moved for summary judgment, contending that he practiced
family
practice, that the care he provided to the plaintiff involved family practice,
and that the case
should be dismissed because the plaintiff did not submit an affidavit of
merit from a family
practitioner. The plaintiff replied that he served an affidavit from a
psychiatrist who treated
patients such as the plaintiff, and from a physician who was board certified
in emergency
medicine because the defendant was boarded in that specialty. The plaintiff
also argued
that a physician cannot be a “specialist” without board certification. Buck v.
Henry, 207
N.J. 377, 385-87 (2011).
a case for a failure to provide an expert in the same specialty as
defendant and remanded for a Ferreira conference,119 explaining:
The basic principle behind N.J.S.A. 2A:53A-41
is that ‘the challenging expert’ who executes an
affidavit of merit in a medical malpractice case,
generally, should ‘be equivalently-qualified to the
defendant’ physician.120
The Court then observed that:
The statute sets forth three distinct categories
embodying this kind-for-kind rule: (1) those who
are specialists in a field recognized by the American
Board of Medical Specialties (ABMS) but who are
not board certified in that specialty; (2) those who
are specialists in a field recognized by the ABMS
and who are board certified in that specialty;
and (3) those who are ‘general practitioners.’ See
N.J.S.A. 2A:53A-41(a), (b).121
Although Buck involved a dispute over an affidavit of merit122
the same rules will apply to the qualification of expert witnesses in
medical malpractice cases.
Determining the Qualifications of Medical Malpractice
Liability Experts
As discussed in 7-3:3.2 Applicability of Same Specialty
Requirement, N.J.S.A. 2A:53A-41 states that if a party offering or
opposing the expert testimony:
is a specialist or subspecialist recognized by the
American Board of Medical Specialties or the
The trial court found that the defendant was a specialist in family-medicine,
and that
the plaintiff was required serve an affidavit from a specialist in family
medicine. The
trial court therefore dismissed the case with prejudice. The Appellate
Division affirmed
and the Supreme Court reversed. Buck v. Henry, 207 N.J. 377, 387-88
(2011).
119. In Ferreira v, Rancocas Orthopedic Associates, the New Jersey Supreme
Court
mandated that trial courts must hold “an accelerated case management
conference” within
90 days of the service of an answer in all malpractice cases to resolve any
affidavit of merit
questions and address other discovery issues. Ferreira v. Rancocas Orthopedic
Assocs., 178
N.J. 144 (2003); see also § 7-7:8.2 (discussing Ferreira conference
requirement).
120. Buck v. Henry, 207 N.J. 377, 389 (2011) (citing Ryan v. Renny, 203 N.J.
37, 52 (2010)).
121. Buck v. Henry, 207 N.J. 377, 389 (2011).
122. See discussion in § 7-5, et seq., for detailed discussion of the affidavit
of merit.
American Osteopathic Association and the care
or treatment at issue involves that specialty or
subspecialty … the person providing the testimony
shall have specialized at the time of the occurrence …
in the same specialty or subspecialty….123
Furthermore, if the defendant is board certified and the care or
treatment at issue involves that board specialty or subspecialty, the
expert witness must either be
credentialed by a hospital to treat the medical
condition, or to perform the procedure, that is the
basis for the claim or action; or . . . a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
Association who is board certified in the same
specialty or subspecialty….124
The qualification of an expert to testify against a doctor who is a
specialist in another field of medicine was considered in Buck v. Henry125
and Nicholas v. Mynster.126 Although Buck involved a dispute over
an affidavit of merit,127 the same standards apply to the qualification
of expert witnesses who testify in medical malpractice cases. In Buck,
the plaintiff sued defendant, who was board certified in emergency
medicine but who was maintaining a family medicine practice. The
defendant diagnosed the plaintiff as suffering from depression and
insomnia, and prescribed an anti-depressant and a sleep aid. Several
weeks after the defendant prescribed the medications, the plaintiff
fell asleep in a chair while inspecting a handgun. The plaintiff was
awakened by a phone ringing, and reached for the phone, but placed
the gun to his mouth and it discharged, resulting in severe injuries.128
The plaintiff alleged that the defendant was negligent, and served
an affidavit of merit signed by a psychiatrist who treats patients
with insomnia and depression. The defendant asserted that the
psychiatrist was not qualified to render the affidavit because the
123. N.J.S.A. 2A:53A-41a.
124. N.J.S.A. 2A:53A-41a(1) and (2) (emphasis added).
125. Buck v. Henry, 207 N.J. 377 (2011).
126. Nicholas v. Mynster, 213 N.J. 463 (2013).
127. See Section 7-5:2.4, Qualifications of the Affiant.
128. Buck v. Henry, 207 N.J. 377, 384 (2011).
defendant was a family practitioner. The plaintiff then served
a second affidavit of merit signed by a physician specializing in
emergency medicine, because the defendant was board certified in
emergency medicine.129
The defendant moved for summary judgment, contending
that he practiced family medicine, that the care he provided to
the plaintiff involved family medicine, and that the case should
be dismissed because the plaintiff did not submit an affidavit of
merit from a family practitioner. The plaintiff replied that he
served an affidavit from a psychiatrist who treated patients such
as the plaintiff, and from a physician who was board certified in
emergency medicine because the defendant was boarded in that
specialty. The plaintiff also argued that a physician cannot be a
“specialist” without board certification.130
The trial court found that the defendant was a specialist in
family medicine, and that the plaintiff was required to serve an
affidavit from a specialist in family medicine. The trial court
therefore dismissed the case with prejudice. The Appellate
Division affirmed, but the Supreme Court reversed and remanded
the case.131
The Buck opinion began with the statement that the plaintiff must
serve an affidavit from an “equivalently credentialed physician”
swearing under oath “that there exists a reasonable probability
that the defendant’s treatment fell outside acceptable professional
standards.”132 The Court added that the “basic principle behind
N.J.S.A. 2A:53A-41 is that ‘the challenging expert’ who executes
an affidavit of merit in a medical malpractice case, generally,
should ‘be equivalently-qualified to the defendant’ physician.”133
The Court then observed that the statute sets forth three distinct
categories of physicians:
(1) those who are specialists in a field recognized
by the ABMS but who are not board certified
in that specialty;
129. Buck v. Henry, 207 N.J. 377, 382-83 (2011).
130. Buck v. Henry, 207 N.J. 377, 386-87 (2011).
131. Buck v. Henry, 207 N.J. 377, 387-88, 396 (2011).
132. Buck v. Henry, 207 N.J. 377, 382 (2011) (citing N.J.S.A. 2A:53A-27).
133. Buck v. Henry, 207 N.J. 377, 389 (2011) (citing Ryan v. Renny, 203 N.J.
37, 52 (2010)).
(2) those who are specialists in a field recognized
by the ABMS and who are board certified in
that specialty; and
(3) those who are ‘general practitioners.’134
The Court explained that pursuant to the plain language
of N.J.S.A. 2A:53A-41a, if the defendant is “a specialist or
subspecialist recognized by the American Board of Medical
Specialties or the American Osteopathic Association and the care
or treatment at issue involves that specialty or subspecialty” the
expert must be a specialist in the same specialty or subspecialty.135
Furthermore, if the defendant is board certified and the care or
treatment at issue involves that board specialty or subspecialty, the
expert witness must either be
‘credentialed by a hospital to treat the medical
condition, or to perform the procedure, that is the
basis for the claim or action; or . . . a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
Association who is board certified in the same
specialty or subspecialty.’136
The Buck Court then explained the process by which a court
determines the qualification of a proposed expert:
Under N.J.S.A. 2A:53A-41, the first inquiry
must be whether a physician is a specialist or
general practitioner. If the physician is a specialist,
then the second inquiry must be whether the
treatment that is the basis of the malpractice
action ‘involves’ the physician’s specialty.
When the treatment ‘involves’ the physician’s
specialty the equivalency requirements apply,
otherwise the specialist is subject to the same
affidavit requirements as if he were a general
practitioner.137
134. Buck v. Henry, 207 N.J. 377, 389 (2011) (citing N.J.S.A. 2A:53A-41(a),
(b)).
135. Buck v. Henry, 207 N.J. 377, 389 (2011).
136. Buck v. Henry, 207 N.J. 377, 389 (2011) (emphasis added).
137. Buck v. Henry, 207 N.J. 377, 391 (2011).
Significantly, the Court added:
A physician may practice in more than one
specialty, and the treatment involved may fall
within that physician’s multiple specialty areas. In
that case, an affidavit of merit from a physician
specializing in either area will suffice.138
This comment suggested that experts in one specialty could
testify in cases involving other specialities.
The issue was revisited less than a year later by the Supreme Court
in Nicholas v. Mynster.139 The plaintiff in Nicholas was brought
to the hospital suffering from carbon monoxide poisoning. The
plaintiff came under the care of the defendants, Dr. Mynster, who
was board certified in emergency medicine, and Dr. Sehgal, who was
board certified in the practice of family medicine. Dr. Sehgal was
described as the “attending physician” and admitted the plaintiff
to intensive care unit of the hospital. However, there is nothing in
the opinion to suggest that Dr. Sehgal had ever treated the plaintiff
before the events which gave rise to the case. Additionally, there
is nothing in the record to suggest that Dr. Sehgal was practicing
“Family Medicine” as opposed to “Critical Care Medicine” or
working as a hospitalist. See Section: 7-3:3.3 The Specialties and
Sub-specialties Recognized by the American Board of Medical
Specialties or the American Osteopathic Association. The plaintiffs
served an affidavit of merit from an expert, Dr. Weaver, who
was board certified in “Internal Medicine, Pulmonary Diseases,
Critical Care, and Undersea & Hyperbaric Medicine.”140 The
plaintiff also served the affidavit of merit of another expert who
was also board certified in Internal Medicine and who was on the
staff of the Department of Emergency Medicine at a hospital in
Philadelphia.However, the plaintiffs only served an expert report
from Dr. Weaver, who opined that the standard of care required
that the plaintiff be referred for treatment by hyperbaric oxygen,
and that had the plaintiff promptly received hyperbaric oxygen,
“his problems would have been prevented, or mitigated.”141
138. Buck v. Henry, 207 N.J. 377, 391 (2011).
139. Nicholas v. Mynster, 213 N.J. 463 (2013).
140. Nicholas v. Mynster, 213 N.J. 463, 471 (2013).
141. Nicholas v. Mynster, 213 N.J. 463, 473 (2013).
The plaintiff’s case was weakened when his expert conceded
during his deposition that “there was a difference of opinion in
the literature in 2005 as to the indications for hyperbaric oxygen
for carbon monoxide poisoning.”142 Further, the court noted the
expert “neither practiced nor was board certified in the specialties
of emergency medicine or family medicine. Dr. Weaver conceded
that he did not know how the average physician practicing family
medicine would have treated Nicholas in 2005.”143
The defendants moved to bar the testimony of plaintiff’s
expert and for summary judgment, asserting that the plaintiff’s
expert could not establish the standard of care “because he did
not practice in the same medical specialty as defendants.”144 The
trial court denied the motion, concluding that “expertise in the
treatment of the condition was sufficient even if the expert did not
share the same medical specialty as the defendant physicians.”145
The Appellate Division denied defendants’ motion for leave to
appeal.146
In an extraordinarily rare decision, the Supreme Court granted
an interlocutory motion for leave to appeal a trial court decision,
and reversed, holding that “N.J.S.A. 2A:53A-41 of the Patients
First Act requires that plaintiffs’ medical expert must ‘have
specialized at the time of the occurrence that is the basis for
the [malpractice] action in the same specialty or subspecialty’
as defendant physicians.”147 The Court explicitly rejected the
plaintiffs’ argument that under N.J.S.A. 2A:53A-41a(1), their
medical expert, who did not specialize in either emergency or
family medicine, was qualified to testify as an expert because
he was credentialed by a hospital to treat patients for carbon
monoxide poisoning.
Under a plain textual reading of the Act, plaintiffs
cannot establish the standard of care through an
expert who does not practice in the same medical
142. Nicholas v. Mynster, 213 N.J. 463, 473 (2013).
143. Nicholas v. Mynster, 213 N.J. 463, 473 (2013).
144. Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
145. Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
146. Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
147. Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
specialties as defendants. For that reason, plaintiffs’
medical expert is barred from testifying to the
standard of care governing defendants. Because
plaintiffs cannot establish the applicable standard
of care, summary judgment must be granted in
favor of defendants.148
Justice Albin acknowledged:
In both Ryan v. Renny, 203 N.J. 37, 999 A.2d 427
(2010), and Buck v. Henry, 207 N.J. 377, 25 A.3d
240 (2011), we held that, generally, a plaintiff’s
medical expert testifying to the standard of care
allegedly breached by a defendant physician must
be equivalently credentialed in the same specialty
or subspecialty as the defendant physician.”149
After quoting the statute, the Nicholas Court explained:
The underscored word ‘and’ that appears in
the quoted portion of the statute separates the
credentials a challenging expert must have (1) if
the defendant physician practices in a specialty but
is not board certified and (2) if the defendant is
board certified in the specialty. When a physician is
a specialist and the basis of the malpractice action
‘involves’ the physician’s specialty, the challenging
expert must practice in the same specialty. See
Buck, supra, 207 N.J. at 391. A medical expert
must be a specialist in the same field in which
the defendant physician specializes; there are no
exceptions to that requirement other than the
waiver provision of N.J.S.A. 2A:53A-41(c), which
is inapplicable in this case.150
The Nicholas Court explicitly rejected the argument that a
physician credentialed by a hospital to treat patients for the same
148. Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
149. Nicholas v. Mynster, 213 N.J. 463, 481-83 (2013) (citing Buck v. Henry,
207 N.J. 377,
389 (2011)).
150. Nicholas v. Mynster, 213 N.J. 463, 481-83 (2013).
medical condition “need neither practice in the same medical
specialty nor be board certified in that specialty.”151
Emergency medicine, family medicine, internal
medicine, and preventive medicine are all distinct
specialty areas recognized by the American Board of
Medical Specialties. No one disputes that physicians
practicing in all four of these specialty areas may
treat carbon monoxide poisoning. However, there
is no statutory exception—other than the waiver
provision of N.J.S.A. 2A:53A-41(c)—that permits
a physician specializing in internal and preventive
medicine to serve as an expert witness against
a physician specializing in emergency or family
medicine, even though each is qualified to treat a
patient for carbon monoxide poisoning.152
Applying the above to the facts of the case, the Nicholas Court
concluded that because defendants rendered treatment within
their specialties, the equivalent-qualification rule applies. Since the
plaintiff’s expert was only board certified in internal medicine, with
subspecialties in pulmonary diseases and critical care, and preventive
medicine, with a subspecialty in undersea and hyperbaric medicine,
the expert could not be permitted to establish the standard of care
for either emergency medicine or family medicine.153
Dr. Weaver unquestionably is an expert in the
treatment of carbon monoxide poisoning and the
use of hyperbaric oxygen as a treatment modality.
But in addition to the expert-witness qualifications
required by N.J.R.E. 702, the Legislature has
imposed the requirements set forth in N.J.S.A.
2A:53A-41. Dr. Weaver and Drs. Mynster and
Sehgal practice in different ABMS specialties.
The statute does not permit Dr. Weaver to testify
about the standard of care exercised by a physician
practicing in a different specialty. That Dr. Weaver is
credentialed by a hospital to treat carbon monoxide
151. Nicholas v. Mynster, 213 N.J. 463, 484 (2013).
152. Nicholas v. Mynster, 213 N.J. 463, 484 (2013).
153. Nicholas v. Mynster, 213 N.J. 463, 487 (2013).
poisoning is a substitute for board certification in
emergency and family medicine; it is not a substitute
for specializing in those practice areas.
… Plaintiffs never presented an expert in family
medicine and never filed an affidavit of merit
from a physician specializing in family medicine.
Accordingly, at the summary-judgment stage,
plaintiffs had no statutorily qualified expert who
could render an opinion regarding the standard of
care applicable to Drs. Mynster and Sehgal….
For these reasons, we reverse the trial court, enter
summary judgment in favor of defendants, Drs.
Mynster and Sehgal, and remand to the trial court
for proceedings consistent with this opinion.154
Perhaps the result would have been different if the plaintiff ’s
expert, who as noted above, was board certified in Internal
Medicine, Pulmonary Diseases, Critical Care, and Undersea &
Hyperbaric Medicine, had simply declared that Internal
Medicine encompassed Family Medicine, and that Critical Care
encompassed Emergency Medicine, and thus self-declared that
he was also a specialist in both Family Medicine and Emergency
Medicine, albeit not board certified in those specialties. In such
a case, the fact that the plaintiff ’s expert was credentialed by a
hospital to treat the condition at issue would have permitted this
expert to testify against the defendants. Indeed, the Nicholas Court
explained:
The hospital-credentialing provision is not an
alternative to the same-specialty requirement;
it only comes into play if a physician is board
certified in a specialty. Again, only a specialist can
testify against a specialist about the treatment of a
condition that falls within the specialty area. The
hospital-credentialing provision is only a substitute
for board certification.155
154. Nicholas v. Mynster, 213 N.J. 463, 487-88 (2013).
155. Nicholas v. Mynster, 213 N.J. 463, 481-83 (2013) (emphasis added).
Of course, the prudent malpractice lawyer will strive to avoid such
artificial manipulations, and rely upon experts whose credentials
match those of the defendants.
The Nicholas decision has raised many serious concerns amongst
the medical malpractice bar. First, this decision appears to be a
reversal of the longstanding policy of the Court, beginning with
In re Hall, that the Affidavit of Merit Statute should be construed
“to avoid the risk that even a few meritorious cases may be dismissed
for non-compliance with the Statute.”156 The Nicholas Court also
did not recall its statement in Ferreira that “ ‘there is no legislative
interest in barring meritorious claims brought in good faith.’ ”157 As
recently as Buck, the Supreme Court reiterated that the “Legislature
did not intend ‘to create a minefield of hyper-technicalities in order
to doom innocent litigants possessing meritorious claims.’”158
Nicholas can be viewed as an implicit reversal of Buck, where the
Court remanded to determine the “adequacy of plaintiff’s affidavits
of merit,” in a case where psychiatry and emergency medicine
experts had rendered the affidavits of merit in a case against a
self-declared specialist in family medicine.
Second, it is unclear how one is determined to be a specialist.
Virtually all doctors now claim that they are “specialists” in
something, and every defendant does so. Indeed, the determination
of who is a “specialist” remains arbitrary. Is a doctor a “specialist”
simply because she says she is?
Third, it is still not clear how the statute will be applied to
the very common practice of doctors who treat conditions
and perform procedures that traditionally were well outside of
their specialty. Who provides the affidavit in a case involving an
anesthesiologist who performs complex spinal fusions, or the
family medicine doctor who is sub-certified in “sports medicine”
and responds to serious fractures in the emergency room as the
“on-call” orthopedist? Where does one locate an anesthesiologist
who performs complex spinal fusions, or a family doctor who
treats fractures to serve as an expert witness?
156. In re Hall, 147 N.J. 379, 392-93 (1997).
157. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150-51 (2003)
(quoting Galik v.
Clara Maass Med. Ctr., 167 N.J. 341, 359 (2001)).
158. Buck v. Henry, 207 N.J. 377, 393-94 (2011) (quoting Ryan v. Renny, 203
N.J. 37
(2010)).
Indeed, in Nicholas, the defendant ‘Family Medicine’ doctor
was actually practicing as a critical care physician in the ICU, or
as a hospitalist. The Nicholas decision simply accepted the claim
that this defendant was practicing “family medicine” without any
critical analysis of this claim. In fact, it is difficult to comprehend
how, pursuant to N.J.S.A. 2A:53A-41, it was determined that the
treatment of the plaintiff in the ICU by this defendant involves the
physician’s specialty of Family Medicine. This is of course critical
to this analysis because the equivalency requirements only apply
“when the treatment ‘involves’ the physician’s specialty.”159
Fourth, the Buck and Nicholas decisions have eliminated the
portion of N.J.S.A. 2A:53A-41 which refers to general practitioners.
The author of this text has never had a defendant designate in
the answer that the defendant was a “general practitioner.” This is
because every defendant, board certified or not, now self-declares
that they are a “specialist.” This was obviously not the intent of
the legislature.
Finally, by focusing on the specialty, and not the condition being
treated or the procedure being performed, the Nicholas decision
has dramatically increased the number of experts who are required
in malpractice cases. As a proximate result of this decision, the
cost to all parties for what is already an extraordinarily expensive
type of personal injury litigation has increased. It is common to
have doctors from two or more disparate specialties treat the same
condition. In such cases, the parties must now engage multiple
experts. This has already shut the door to the courthouse for many
victims of medical errors.
Although it appears that Supreme Court intended to clarify this
area of law by reaching out to take a denial of a motion to dismiss
by a trial court, this decision has already resulted in the unintended
consequences of the dismissal of many meritorious claims and
defenses. The problem was compounded by the fact that the Court
did not make the Nicholas decision prospective, as was the case in
every previous affidavit of merit case.
While the intent of these statutes was to rid the system of frivolous
suits promptly and lower costs, the present interpretation has had
the opposite impact. The litigation over the affidavit of merit and
159. Buck v. Henry, 207 N.J. 377, 389 (2011).
the qualifications of experts has taken on a life of its own. Unless
this flawed statute is declared unconstitutional, amended, or
construed sensibly, we will continue to waste an enormous amount
of time and resources on the process, instead of determining the
merits of our cases.
The Patients First Act’s Impact on
Other Medical Malpractice Issues
Introduction
The Patient First Act imposed numerous other changes affecting
adjudication of medical malpractice claims. Attorneys who handle
medical malpractice cases in New Jersey must therefore become
aware of all the changes effected by the Act. The following is a
summary of the major provisions of the statute other than those
affecting expert witness testimony.
Statute of Limitations Amended
The Patients First Act amends the Statute of Limitations, N.J.S.A.
2A:14-2, to provide that “an action by or on behalf of a minor
that has accrued for medical malpractice for injuries sustained at
birth shall be commenced prior to the minor’s 13th birthday.”160
As stated, this statute only applies to injuries sustained “at birth.”
As such, the change does not apply to cases involving the failure to
diagnose birth defects or where the malpractice occurred not “at
birth” but rather during the pregnancy. In apparent recognition of
the potential unconstitutionality of limiting the right of minors
to sue before they can file suit themselves, The Patients First Act
provides that if an action on behalf of a minor is not commenced
by the minor’s parent or guardian prior to the minor’s 12th
birthday, the “minor or designated person may petition the court
for the appointment of a guardian ad litem to act on the minor’s
behalf.”161 However, such a limited right to sue hardly cures the
complaints about the unconstitutionality of this provision.
160. N.J.S.A. 2A:14-2(a).
161. N.J.S.A. 2A:14-2(b).
Affidavit of Noninvolvement
The Patients First Act permits a defendant in a malpractice case
to obtain a dismissal of a malpractice case upon the filing of an
“affidavit of noninvolvement with the court.”162 The affidavit of
noninvolvement must state
with particularity, the facts that demonstrate
that the provider was misidentified or otherwise
not involved … in the care and treatment of the
claimant … and could not have caused the alleged
malpractice, either individually or through its
servants or employees, in any way.163
The plaintiff and any co-defendant may challenge an affidavit
of noninvolvement by filing an affidavit that contradicts the
assertions of noninvolvement.164 The statute imposes penalties
upon anyone who knowingly files a false or inaccurate affidavit
of noninvolvement, including the “reasonable expenses” incurred,
including attorney’s fees.165 The statute imposes similar sanctions
on any plaintiff or plaintiff’s counsel who “falsely objected to a
health care provider’s affidavit of noninvolvement.”166
Malpractice Premium Increases Barred if Case
Dismissed Within 180 Days
The Patients First Act has also amended N.J.S.A. 17:30d-22 to
prohibit any increase in the premium of any medical malpractice
policy due to the filing of a case against a physician if the case was
dismissed within 180 days of the filing of the physician’s answer.
This provision will impose pressure on defense counsel to exchange
discovery promptly in order that qualified defendants may take
advantage of this important provision of the new law. Defense
counsel who delay may well find themselves the subject of suits by
their own clients seeking reimbursement for the cost of increased
malpractice premiums imposed on defendants who should have
been dismissed prior to the 180-day limit.
162. N.J.S.A. 2A:53A-40.
163. N.J.S.A. 2A:53A-40(a).
164. N.J.S.A. 2A:53A-40(b).
165. N.J.S.A. 2A:53A-40(c).
166. N.J.S.A. 2A:53A-40(d).
Remittitur and Additur
The Patients First Act seeks to redefine the standard of review
regarding remittitur and additur. N.J.S.A. 2A:53A-42 mandates
that the trial judge
consider the evidence in the light most favorable
to the non-moving party and determine whether
the award is clearly inadequate or excessive in view
of the nature of the medical condition or injury
that is the cause of action or because of passion or
prejudice by the jury.
The “clearly inadequate or excessive” standard is a change from
the “shock the conscience” standard previously employed.
Good Samaritan Immunity
The Patients First Act also creates an immunity in certain
“good samaritan” situations. N.J.S.A. 2A:62A-1.3, amends New
Jersey’s Good Samaritan Act,167 and immunizes a health care
professional who responds in a hospital or similar setting to a
lifethreatening
emergency or a request for emergency assistance in a
life-threatening emergency within a hospital or other health care
facility, unless there was gross negligence, recklessness, or willful
misconduct. However, this section does not apply if:
1. “a provider-patient relationship existed before the
emergency”;
2. if the practitioner was “on-call” and had a duty to
respond to “a patient emergency situation”; or
3. if the health care professional is paid for the service
rendered.168
AFFIDAVIT OF MERIT
Professions Covered
The Affidavit of Merit Statute,186 originally enacted in 1995,
requires the service of an “affidavit of merit” in many professional
negligence and some other cases. The Affidavit of Merit Statute
initially protected physicians, dentists, podiatrists, chiropractors,
nurses and health care facilities, as well as non-medical professionals
181. N.J.S.A. 45:9-22.23a(10).
182. N.J.S.A. 45:9-22.23a(10)(c).
183. See N.J.S.A. 45:9-22.23a(10)(d).
184. See N.J.S.A. 45:9-22.23c.
185. See N.J.S.A. 45:9-22.23d.
186. N.J.S.A. 2A:53A-26, et seq. The Appendix provides information about
where to find
the statute online.
such as accountants, architects, attorneys and engineers.187 The
statute was amended in 2002 and 2010, and presently includes:
As used in this act, “licensed person” means any person who is
licensed as:
a. an accountant pursuant to P.L.1997, c.259
(C.45:2B-42 et seq.);
b. an architect pursuant to R.S.45:3-1 et seq.;
c. an attorney admitted to practice law in New
Jersey;
d. a dentist pursuant to R.S.45:6-1 et seq.;
e. an engineer pursuant to P.L.1938, c.342 (C.45:8-27
et seq.);
f. a physician in the practice of medicine or surgery
pursuant to R.S.45:9-1 et seq.;
g. a podiatrist pursuant to R.S.45:5-1 et seq.;
h. a chiropractor pursuant to P.L.1989, c.153 (C.45:941.17 et seq.);
i. a registered professional nurse pursuant to
P.L.1947, c.262 (C.45:11-23 et seq.);
j. a health care facility as defined in section 2 of
P.L.1971, c.136 (C.26:2H-2);
k. a physical therapist pursuant to P.L.1983, c.296
(C.45:9-37.11 et seq.);
l. a land surveyor pursuant to P.L.1938, c.342
(C.45:8-27 et seq.);
m. a registered pharmacist pursuant to P.L.2003,
c.280 (C.45:14-40 et seq.);
n. a veterinarian pursuant to R.S.45:16-1 et seq.;
o. an insurance producer pursuant to P.L.2001, c.210
(C.17:22A-26 et seq.); and
187. N.J.S.A. 2A:53A-26.
p. a certified midwife, certified professional midwife,
or certified nurse midwife pursuant to R.S.45:10-1
et seq.188
It is important to recognize that the definition of “health care
facilities” in the Affidavit of Merit Statute refers to the definition
contained in N.J.S.A. 26:2H-2, which broadly provides:
“Health care facility” means the facility or
institution whether public or private, engaged
principally in providing services for health
maintenance organizations, diagnosis of treatment
of human disease, pain, injury, deformity or
physical condition, including, but not limited to, a
general hospital, special hospital, mental hospital,
public health center, diagnostic center, treatment
center, rehabilitation center, extended care facility,
skilled nursing home, nursing home, intermediate
care facility, tuberculosis hospital, chronic disease
hospital, maternity hospital, outpatient clinic,
dispensary, home health care agency, residential
health care facility and bioanalytical laboratory
(except as specifically excluded hereunder) or
central services facility serving one or more such
institutions but excluding institutions that provide
healing solely by prayer and excluding such
bioanalytical laboratories as are independently
owned and operated, and are not owned, operated,
managed or controlled, in whole or in part, directly
or indirectly by any one or more health care facilities,
and the predominant source of business of which
is not by contract with health care facilities within
the State of New Jersey and which solicit or accept
specimens and operate predominantly in interstate
commerce.189
Thus, an affidavit of merit must be provided to a wide range of
corporate health care providers, not just hospitals.
188. N.J.S.A. 2A:53A-26.
189. N.J.S.A. 26:2H-2.
The statute requires service of an affidavit of merit in all cases for
“personal injuries, wrongful death, and property damages against
the listed licensed professionals.”190
Time for Service
The time for service of the affidavit is provided in N.J.S.A.
2A:53A-27, which states:
In any action for damages for personal injuries,
wrongful death or property damage resulting from
an alleged act of malpractice or negligence by a
licensed person in his profession or occupation,
the plaintiff shall, within 60 days following the
date of filing of the answer to the complaint by the
defendant, provide each defendant with an affidavit
of an appropriate licensed person that there exists
a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint,
fell outside acceptable professional or occupational
standards or treatment practices. The court may
grant no more than one additional period, not to
exceed 60 days, to file the affidavit pursuant to this
section, upon a finding of good cause.
The failure to submit the affidavit “shall be deemed a failure to
state a cause of action.”191
Failure to Produce Necessary Records
or Other Information
The plaintiff is not required to submit an affidavit of merit if the
defendant fails to provide plaintiff with medical records or other
necessary information within 45 days after receiving a written
request by certified mail or personal service. In such a case, counsel
for plaintiff need only file a certification stating:
190. N.J.S.A. 2A:53A-27.
191. N.J.S.A. 2A:53A-29.
[T]he defendant has failed to provide plaintiff with
medical records or other records or information
having a substantial bearing on the preparation of
the affidavit; a written request therefor along with, if
necessary, a signed authorization by the plaintiff for
the release of the medical records or other records or
information requested, has been made by certified
mail or personal service; and at least 45 days have
elapsed since the defendant received the request.192
Minimum Requirements
As stated above, the Affidavit of Merit Statute merely requires
that the expert render a preliminary opinion that there is a
“reasonable probability that the care, skill or knowledge exercised
or exhibited in the treatment . . . fell outside acceptable professional
occupational standards or treatment practices.”193
The minimal requirements of the Affidavit of Merit Statute are
no doubt due to the fact that the affidavit is generally required
prior to the exchange of any pretrial discovery.
Qualifications of the Affiant
The Affidavit of Merit Statute initially required that the
person executing the affidavit shall be licensed
in this or any other state; [and] have particular
expertise in the general area or specialty involved
in the action, as evidenced by board certification or
by devotion of the person’s practice substantially
to the general area or specialty involved in the
action for a period of at least five years.194
In 2004, The New Jersey Medical Care Access and Responsibility
and Patients First Act discussed above195 amended the practice and
procedure involving the affidavit of merit and now provides that
a person may not give expert testimony or execute an affidavit of
192. N.J.S.A. 2A:53A-28.
193. N.J.S.A. 2A:53A-27.
194. N.J.S.A. 2A:53A-27.
195. N.J.S.A. 2A:53A-38; see § 7-3:3 and following sections for discussion
of The Patients
First Act.
merit in a medical malpractice case unless the expert is licensed as
a physician or other health care professional in the United States
and, if the defendant is a specialist or subspecialist recognized
by the American Board of Medical Specialties or the American
Osteopathic Association, and the treatment involves that specialty
or subspecialty:
[T]he person providing the testimony shall have
specialized at the time of the occurrence that is
the basis for the action in the same specialty or
subspecialty … and if the person against whom or
on whose behalf the testimony is being offered is
board certified and the care or treatment at issue
involves that board specialty or subspecialty … the
expert witness shall be (1) a physician credentialed
by a hospital to treat patients for the medical
condition, or to perform the procedure, that is the
basis for the claim or action; or (2) a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
Association who is board certified in the same
specialty or subspecialty.196
As a result of this statute, an attorney pursuing a medical
malpractice case should in appropriate cases check the board
certification status of every potential defendant. The profiles
of New Jersey doctors can be found at www.njdoctorlist.com.
Similarly, the profiles of New York doctors can be found at www
.nydoctorprofile.com.
See Section 7-3:3.7 for further discussion regarding qualifications
of experts under the Patients First Act.
Application of the Affidavit
of Merit Requirements
The Affidavit of Merit Statute has resulted in much litigation.
A series of decisions of the New Jersey Supreme Court and
numerous opinions from the Appellate Division have addressed
the repetitive issues generated by the Affidavit of Merit Statute
and have provided guidance to those trying to navigate its murky
waters. These court decisions answer the following frequently
asked questions which are discussed in further detail below:
1: Who Is Entitled to an Affidavit of Merit?227
2: Is an Affidavit of Merit Needed for Professional
Corporations?228
3: Who Is Qualified to Render the Affidavit of Merit?229
4: What Information Must Be Contained in the Affidavit
of Merit?230
224. Fernandez v. Jersey City Med. Ctr., 336 N.J. Super. 594, 599 (App. Div.
2001).
225. Fernandez v. Jersey City Med. Ctr., 336 N.J. Super. 594, 600 (App. Div.
2001).
226. Chamberlain v. Giampapa, 210 F. 3d. 154 (3d Cir. 2000).
227. See § 7-7:2.
228. See § 7-7:2.2.
229. See § 7-7:3.
230. See § 7-7:4.
5: Does the Affidavit of Merit Statute Require
Identification of the Defendants Who Deviated from
the Standard of Care?231
6: When Must the Affidavit of Merit Be Filed?232
7: What Constitutes Substantial Compliance with the
Affidavit of Merit Statute?233
8: Does the Doctrine of Waiver or Estoppel Apply to the
Affidavit of Merit Statute?234
9: Is the Affidavit of Merit Waived If the Defendant
Withholds the Medical Records Needed to Prepare the
Affidavit?235
10: Does the Failure to Hold a Conference Pursuant
to Ferreira Extend the Time to Serve an Affidavit of
Merit?236
11: Can the Ferreira/Affidavit of Merit Conference Be
Waived?237
12: Once Suit Is Filed, Is the Affidavit of Merit Statute
Tolled Due to the Minority of an Infant Plaintiff ?238
13: Is an Affidavit of Merit Required in Common
Knowledge or Res Ipsa Cases?239
14: Is an Affidavit of Merit Required for Informed Consent
Cases?240
15: Does the Affidavit of Merit Statute Apply to Crossclaims
or Counterclaims?241
231. See § 7-7:5.
232. See § 7-7:6.
233. See § 7-7:7.
234. See § 7-7:8.
235. See § 7-7:11.
236. See § 7-7:9.
237. See § 7-7:10.
238. See § 7-7:12.
239. See § 7-7:13.
240. See § 7-7:14.
241. See § 7:15.
16: Does the Affidavit of Merit Statute Apply to Nonmalpractice
Claims, Such as Contract or Assault and
Battery Claims?242
17: Is an Affidavit of Merit Needed to Establish Causation
or Damages?243
18: Should the Affidavit of Merit Statute Ever Be Permitted
to Be Used to Defeat Meritorious Claims?244
Which Licensed Professionals are Entitled
to Affidavit of Merit?
Only those licensed professionals specifically listed in the
Affidavit of Merit Statute are entitled to an affidavit of merit.245
In Saunders, the plaintiff’s daughter was delivered by Marietta
Cahill, a licensed nurse and midwife, at the Capital Health System’s
Trenton hospital. The plaintiff sued Cahill and the Capital Health
System, claiming that Cahill’s negligence caused a brachial plexus
injury and that the infant suffered from decreased movement and
flaccidity of the left arm.
The plaintiff ’s counsel had obtained an affidavit
of merit well within time, but had simply failed to
serve it. The trial court nevertheless dismissed the
complaint with prejudice, rejecting the plaintiff ’s
argument that she had substantially complied with
the Affidavit of Merit Statute. In reversing, the
Appellate Division first observed that the Affidavit
of Merit Statute specifies fifteen ‘licensed persons,’
who are entitled to an affidavit of merit, but that
‘[m]idwives were not included’ in the statute.246
242. See § 7-7:16.
243. See § 7-7:17.
244. See § 7-7:18.
245. See Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J.
Super. 500
(App. Div. 2008).
246. Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super.
500, 505
(App. Div. 2008). The court explained:
Nurses and midwives are licensed pursuant to different statutes. Licensing
requirements for registered professional nurses are set forth in N.J.S.A.
45:11-23
The Court then added:
The Legislature initially chose to list ten
particular professionals to which the Affidavit
of Merit requirement would apply. The list did
not include midwives. Six years after enacting
N.J.S.A. 2A:53A-26, the Legislature, recognizing
the limitation of the statute’s scope, amended
the statute, naming five additional professionals
as ‘licensed persons.’ The absence of midwives as
‘licensed persons’ strongly suggests that the list
contained in N.J.S.A. 2A:53A-26 is an exclusive
one and implies that the omission of other
licensed health providers ‘was intentional, not an
oversight.’ … Had the Legislature intended N.J.S.A.
2A:53A-26 to apply to other unspecified licensed
health providers, it could easily have prefaced the
licensed persons listed with the words ‘including
but not limited to.’ It chose not to do so.247
The Saunders Court then ended the argument, observing:
Our function is not to ‘rewrite a plainly-written
enactment of the Legislature nor presume that the
Legislature intended something other than that
expressed by way of plain language’ … It is not
our function to ‘write in an additional qualification
which the Legislature pointedly omitted in drafting
its own enactment’ … We, therefore, conclude that
an affidavit of merit is not required when licensed
midwives, as well as other unspecified licensed
to -67 . . . Midwife licensing requirements are specified in N.J.S.A. 45:10-1
to -22.
A midwife is defined as a person “who attends a woman in childbirth as a
midwife.”
N.J.S.A. 45:10-1. To qualify for a license as a midwife, a person must have
“received a
certificate or diploma from a legally incorporated school of midwifery, or
maternity
hospital.” N.J.S.A. 45:10-3. Midwives must pass an examination “sufficient
to test
the scientific and practical fitness of candidates to practice midwifery.”
N.J.S.A.
45:10-5. Every licensed midwife is required to “procure . . . annually . . . a
certificate
of registration.” N.J.S.A. 45:10-7.
Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super. 500,
505-06 (App.
Div. 2008).
247. Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super.
500, 508
(App. Div. 2008).
professionals, are sued in their professional
capacity.248
Is an Affidavit of Merit Needed
for Professional Corporations?
In Shamrock Lacrosse Inc. v. Klehr, Harrison, Harvey, Branzburg &
Ellers,249 the Appellate Division held that the Affidavit of Merit
Statute250 required the service of an affidavit of merit in a case
against two law firms principally located in Pennsylvania with
offices in New Jersey.
The plaintiff had argued that the law firms were not “licensed
persons” for which an affidavit of merit was required under N.J.S.A.
2A:53A-27—which requires an affidavit of merit in cases against
“an attorney admitted to practice law in New Jersey” who is one
of the licensed professionals specified in N.J.S.A. 2A:53A-26(c).
Additionally, the plaintiff argued that the individual defendant
attorney was not admitted to practice law in New Jersey at the
time of the negligent conduct.251
Considering federal court opinions on the issue, the Shamrock
Supreme Court held that law firms were entitled to an affidavit of
merit.
The days in which the private practice of law
was almost exclusively populated by individual
practitioners has long passed. That being so, we
doubt that the Legislature intended to penalize
the legal profession by confining the important
protections of the affidavit of merit statute to
single-attorney law offices.
To be sure, individual attorneys admitted to
the New Jersey bar are clearly embraced by the
affidavit of merit statute by virtue of the definition
in N.J.S.A. 2A:53A-26(c). But, if plaintiff’s reading
248. Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super.
500, 507-08
(App. Div. 2008).
249. Shamrock Lacrosse Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416
N.J.
Super. 1 (App. Div. 2010).
250. N.J.S.A. 2A:53A-26 to -29.
251. Shamrock Lacrosse Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416
N.J. Super.
1, 13-14 (App. Div. 2010).
of the statute were accepted, that individualized
protection would provide no solace to a law firm
that could have vicarious liability for the actions or
inactions of the licensed attorneys employed by, or
affiliated with, that firm.252
However, the Appellate Division held in Albrecht v. Correctional
Medical Services,253 that Correctional Medical Services (CMS),
a contractual provider of medical services for the Department
of Corrections, was not entitled to an affidavit of merit. The
plaintiff filed suit against two doctors and CMS alleging that
the defendants failed to properly diagnose and treat his medical
condition when the plaintiff was in the custody of the DOC.
Plaintiff served an affidavit of merit upon the two individual
defendants, but not to CMS.
CMS moved to dismiss the complaint for failure to file an affidavit
of merit, asserting that it was a “health care facility” as defined by
the relevant statutes, and the trial court granted the motion. In
reversing, the appellate division first observed that the Affidavit of
Merit Statute only applies to claims of negligence “by a licensed
person in his profession or occupation.”254 In this context, a
“licensed person” is “any person who is licensed as … a health care
facility as defined in” N.J.S.A. 2A:53A-26(j).255 In rejecting CMS’s
claim that it is a health care facility and therefore entitled to an
affidavit of merit, the appellate division concluded:
[T]o be a ‘licensed person’ for the AOM Statute, one
must do more than practice one of the enumerated
professions––one must also hold a valid license as a
practitioner of one of those professions. Otherwise,
unlicensed persons would be protected by the
AOM Statute. See Shamrock Lacrosse, supra, 416
N.J. Super. at 26-27 (suggesting that attorney who
252. Shamrock Lacrosse Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416
N.J. Super.
1, 22 (App. Div. 2010) (relying on Martin v. Perinni Corp., 37 F. Supp. 2d 362
(D.N.J. 1999),
and distinguishing RTC Mortg. Trust 1994 N-1 v. Fidelity Nat’l Title Ins. Co.,
981 F. Supp.
334 (D.N.J. 1997), and In re Cendant Corp. Sec. Litig., 139 F. Supp. 2d 585
(D.N.J.), aff’d in
part, rev’d in part, 47 F.3d 132 (3d Cir. 2001)).
253. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265 (App. Div. 2011).
254. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 269 (App. Div. 2011)
(quoting
N.J.S.A. 2A:53A-27).
255. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 271 (App. Div. 2011).
unlawfully represents clients may not be protected by
affidavit-of-merit requirement). We cannot construe
the statute to reach such an absurd result.256
The court distinguished the holdings in Shamrock Lacrosse, and
Nagim v. New Jersey Transit,257 which extended the protection of the
affidavit of merit to a law firm and engineering firm, respectively.
The Albrecht court explained:
Read together, these cases hold that when a
firm’s shareholders are licensed persons under
the statute, a plaintiff is required to provide an
AOM in order to pursue litigation against the
firm alone under respondeat superior principles.
The rule in these cases is implicitly limited
to professional corporations because, by statute,
professional corporations must be entirely owned
by shareholders who are themselves licensed
professionals. N.J.S.A. 14A:17-10(a) (‘No
professional corporation may issue any of its
shares to anyone other than an individual who is
duly licensed or otherwise legally authorized to
render the same professional service as that for
which the corporation was incorporated.’). Again,
that rationale has no application here, where
plaintiff has filed affidavits of merits to support
his claims against the doctors.258
Who is Qualified to Render the Affidavit of Merit?
Same Specialty Requirement
In 2004, the New Jersey Legislature enacted the New Jersey
Medical Care Access and Responsibility and Patients First Act
(The Patients First Act.)259 As mentioned in § 7-3:3, this statute
256. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 271 (App. Div. 2011).
257. Nagim v. N.J. Transit, 369 N.J. Super. 103 (Law Div. 2003).
258. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 273 (App. Div. 2011).
259. N.J.S.A. 2A:53A-37, et seq. See the Appendix for information on how
to find the text
of the Act online.
imposes new requirements for those providing expert testimony or
executing an affidavit of merit.260
Most importantly, if the defendant is a specialist or subspecialist
recognized by the American Board of Medical Specialties or the
American Osteopathic Association, and the treatment involves
that specialty or subspecialty:
[T]he person providing the testimony shall have
specialized at the time of the occurrence that is
the basis for the action in the same specialty or
subspecialty … and if the person against whom or
on whose behalf the testimony is being offered is
board certified and the care or treatment at issue
involves that board specialty or subspecialty … the
expert witness shall be (1) a physician credentialed
by a hospital to treat patients for the medical
condition, or to perform the procedure, that is the
basis for the claim or action; or (2) a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
Association who is board certified in the same
specialty or subspecialty … during the year
immediately preceding the date of the occurrence
that is the basis for the claim or action, shall have
devoted a majority of his professional time to
either (a) the active clinical practice of the same
health care profession in which the defendant is
licensed, and, if the defendant is a specialist or
subspecialist recognized by the American Board of
Medical Specialties or the American Osteopathic
Association, the active clinical practice of that
specialty or subspecialty recognized by the
American Board of Medical Specialties or
the American Osteopathic Association; or (b) the
instruction of students in an accredited medical
school, other accredited health professional
school or accredited residency or clinical research
260. See N.J.S.A. 2A:53A-41 and § 7-3:3.5.
program in the same health care profession in
which the defendant is licensed, and, if that party
is a specialist or subspecialist recognized by the
American Board of Medical Specialties or the
American Osteopathic Association, an accredited
medical school, health professional school or
accredited residency or clinical research program
in the same specialty or subspecialty recognized by
the American Board of Medical Specialties or the
American Osteopathic Association; or (c) both.261
This section of the statute only applies to those experts who are
called to testify about deviations from, or compliance with, the
standard of care. Obviously, the statute could not be deemed to
apply to experts who are called to testify about proximate causation
and damages.262
If the defendant is a general practitioner, the expert witness, during
the year immediately preceding the date of the occurrence that is the
basis for the claim or action, must have spent the majority of his
professional time in “active clinical practice as a general practitioner;
or active clinical practice that encompasses the medical condition,
or that includes performance of the procedure, that is the basis of
the claim” or to teaching “in an accredited medical school, health
professional school, or accredited residency or clinical research
program in the same health care profession” as the defendant.263
Additionally, the expert must have devoted the majority of his
professional time during the year immediately preceding the date
of the occurrence to the “active clinical practice” of the same health
care profession and specialty or subspecialty as the defendant,
or the instruction of students in an accredited medical or health
professional school, or accredited residency or clinical research
program in the same health care profession and the same specialty
or subspecialty.264
261. N.J.S.A. 2A:53A-41.
262. See Bender v. Walgreens E. Co., Inc., 399 N.J. Super. 584 (App. Div.
2008); see also
discussion in § 7-7:17.
263. N.J.S.A. 2A:53A-41.
264. N.J.S.A. 2A:53A-41.
The statute provides that a court may waive the same specialty or
subspecialty requirement if,
[a]fter the moving party has demonstrated to the
satisfaction of the court that a good faith effort
has been made to identify an expert in the same
specialty or subspecialty, the court determines that
the expert possesses sufficient training, experience
and knowledge to provide the testimony as a result
of active involvement in, or full-time teaching of,
medicine in the applicable area of practice or a
related field of medicine.265
See § 7-3:3 for discussion of Buck v. Henry,266 and Nicholas v.
Mynster267 and the qualifications of the person rendering the
affidavit of merit or testifying at trial, and the circumstances by
which an expert certified on one specialty may testify against or for
a doctor practicing in another but overlapping specialty.
Waiver of Same Specialty Requirement
As noted above, N.J.S.A. 2A:53A-41(c) provides:
a court may waive the same specialty or subspecialty
recognized by the American Board of
Medical Specialties or the American Osteopathic
Association and board certification requirements
of this section, upon motion by the party seeking a
waiver, if, after the moving party has demonstrated
to the satisfaction of the court that a good faith
effort has been made to identify an expert in the same
specialty or subspecialty, the court determines that
the expert possesses sufficient training, experience
and knowledge to provide the testimony as a result
of active involvement in, or full-time teaching of,
medicine in the applicable area of practice or a
related field of medicine.
265. N.J.S.A. 2A:53A-41(c).
266. Buck v. Henry, 207 N.J. 377 (2011).
267. Nicholas v. Mynster, 213 N.J. 463 (2013).
The Supreme Court examined the safety net provided by
N.J.S.A. 2A:53A-41(c) in Ryan v. Renny.268 In Ryan, the plaintiff
suffered a perforated colon during a colonoscopy, and sued the
defendant, a board-certified gastroenterologist. The plaintiff
was not able to obtain an affidavit of merit from a boardcertified
gastroenterologist despite multiple inquiries with such
specialists. The plaintiff therefore served the affidavit of a general
surgeon who was not board-certified in gastroenterology, but
who claimed to have performed more than 100 colonoscopies,
although none for many years, and who had also had performed
colon and bowel surgeries, including repair of perforations from
colonoscopies.
The defendant moved to dismiss the complaint for failure to
submit an affidavit of a board-certified gastroenterologist. The
plaintiff cross-moved, seeking a waiver of the same-specialty
requirement pursuant to N.J.S.A. 2A:53A-41(c). The plaintiff
submitted a certification of counsel explaining that he had
contacted three board-certified gastroenterologists who declined
to review the case.
The defendant argued that the court could infer that the
specialists believed the defendant did not commit malpractice,
and that the general surgeon was not qualified to render the
affidavit of merit because he was not board certified in the same
specialty as the defendant, and because he was not actively
performing colonoscopies when the procedure was performed on
the plaintiff.
The trial judge granted plaintiff’s motion to waive the specialty
requirements and denied the defendant’s motion to dismiss the
complaint. The Appellate Division reversed, holding that the
plaintiff had not demonstrated a good faith effort to obtain an
expert, and dismissed the complaint.
In reinstating the complaint, the Supreme Court held that
an expert who does not possess the same board certification as
the defendant may nevertheless provide a satisfactory affidavit
of merit if the party seeking the waiver demonstrates a “good
faith effort” to obtain an affidavit from a doctor with the same
board certification and if the proffered expert possesses sufficient
268. Ryan v. Renny, 203 N.J. 37 (2010).
training, experience and knowledge of the condition or procedure
in issue as “a result of active involvement in, or full-time teaching
of, medicine in the applicable area of practice or a related field of
medicine.”269
The Supreme Court explained that a good-faith effort to obtain
an affidavit from a similarly board certified expert required the
judge to focus on whether the plaintiff attempted to secure such an
expert, and not the reasons why the potential experts declined to
participate in the case.270
A similar conclusion was reached by the Appellate Division in
an engineering malpractice case, Berlin v. Remington & Vernick.271
In Berlin, the Borough of Berlin sued an engineer for negligence in
designing a municipal water well. The plaintiff served the affidavit
of a professional hydrogeologist. The defendant moved to dismiss,
arguing that only an engineer could serve the affidavit of merit.
The Appellate Division held that the plaintiff had complied with
the statute, but warned:
To protect against engineering malpractice
claims being pressed against R&V without the
required engineering affidavit of merit having
been submitted, we direct that Berlin’s liability
claim be limited to whether R&V’s hydrogeologist
negligently sited the well in question and whether
the hydrogeologist at the time was employed by or
269. Ryan v. Renny, 203 N.J. 37 (2010) (quoting N.J.S.A. 2A:53A-41(c)).
270. Ryan v. Renny, 203 N.J. 37, 55 (2010). The Court explained:
[T]he plain language of the waiver provision, … directs the judge to focus
on the
‘effort’ the moving party made to obtain a statutorily-authorized expert,
and not
on the reasons why a particular expert or experts declined to execute an
affidavit.
That focus reflects a legislative judgment that the moving party should
make a
legitimate attempt to obtain an equivalently-qualified expert and should not
be
relieved of that burden by desultory undertakings or half-hearted
endeavors. It
follows that, to prove a good faith effort, a moving party must show what
steps
he undertook to obtain an expert qualified according to N.J.S.A. 2A:53A41(a)
or (b). By way of example, that would include: the number of experts in the
field; the number of experts the moving party contacted; whether and
where he
expanded his search geographically when his efforts were stymied; the
persons or
organizations to whom he resorted for help in obtaining an appropriate
expert; and
any case-specific roadblocks (such as the absence of local sub-specialty
experts) he
encountered. However, the experts’ reasons for declining simply do not
bear on the
robustness of movant’s efforts[.]
Ryan v. Renny, 203 N.J. 37, 55 (2010).
271. Berlin v. Remington & Vernick, 337 N.J. Super. 590 (App. Div. 2001).
working for R&V. Because no engineering affidavit
has been submitted, issues such as negligent
supervision or negligent hiring, or any other claim
relating to the engineering firm’s alleged breach
of its professional standard of care, may not be
pressed against R&V.272
What Information Must be Contained
in the Affidavit of Merit?
The Cornblatt decision held that the affidavit need only contain
the very limited information required by the statute:
The statutory language here is clear and
unambiguous. N.J.S.A. 2A:53A-27 states that the
plaintiff shall provide ‘an affidavit of an appropriate
licensed person that there exists a reasonable
probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice
or work that is the subject of the complaint, fell
outside acceptable professional or occupational
standards or treatment practices.’ That language
is the only part of the statute detailing what must
be included in the affidavit. Separately, the statute
lists the affiant’s qualifications as mandatory
requirements, but the statute does not describe
those requirements as information that must be
included in the affidavit. … Interpreting the statute
to mean that those qualifications must be included
in the affidavit as the Appellate Division did goes
beyond the statutory language itself.273
Significantly, the New Jersey Supreme Court in In re Hall274
explained that the affidavit of merit is not a detailed expert report
but need only be “summary in nature,” and further that
the required statement of opinion that the
defendant’s work or treatment fell outside
272. Berlin v. Remington & Vernick, 337 N.J. Super. 590 (App. Div. 2001).
273. Cornblatt v. Barow, 153 N.J. 218, 241 (1998).
274. In re Hall, 147 N.J. 379 (1997).
acceptable professional standards need not be
accompanied by the same detailed explanation and
analysis that ordinarily would be contained in an
expert’s report required to be furnished pursuant
to Rule 4:17-4(e).275
Finally, the Hall Court made clear that the statute requires only
that the expert certify that a reasonable probability exists that the
defendant in question deviated from professional standards. If the
affiant is also to serve as an expert witness at trial, the detailed
analysis supporting that conclusion need not be provided until the
defendant demands production of expert reports.276
Does the Affidavit of Merit Statute Require
Identification of the Defendants Who Deviated
from the Standard of Care?
The Supreme Court has instructed that whenever possible the
affidavit of merit should specifically identify the defendants who
deviated from the standard of care. In Fink v. Thompson,277 plaintiff
alleged that his wife died as a result of the negligent treatment of
an infection by doctors at two hospitals. Prior to filing suit, the
plaintiff obtained a detailed report from an expert. Upon filing
suit, plaintiff’s expert prepared an affidavit which stated that the
death of the plaintiff’s wife was caused by the negligence of a
number of specifically named physicians, nurses, and a hospital,
as well as “currently unknown names of physicians and nurses of
Robert Wood Johnson University Hospital.”278 After the passage
of 120 days, one named defendant, Dr. Strobel, moved to dismiss
because the affidavit of merit did not identify Dr. Strobel as a person
who deviated from the standard of care. Plaintiff immediately filed
a supplemental affidavit of merit wherein the expert stated that it
“had become known to me that defendant, Richard
Strobel, M.D., was the attending physician at
Robert Wood Johnson and therefore can now be
identified as one of the unknown physicians of
275. In re Hall, 147 N.J. 379, 392 (1997).
276. In re Hall, 147 N.J. 379, 392 (1997).
277. Fink v. Thompson, 167 N.J. 551 (2001).
278. Fink v. Thompson, 167 N.J. 551, 557 (2001).
Robert Wood Johnson University Hospital who
deviated from accepted standards of care in his
treatment of the decedent, Lisa M. Fink.”279
Nevertheless, the trial court dismissed Dr. Strobel from the
case, and the Appellate Division denied a motion for leave to
appeal. However, the Supreme Court granted leave to appeal, and
reversed.
The Fink Court stated that key issue was whether the plaintiff’s
initial affidavit was sufficient as to Dr. Strobel. The Court
explained:
The statute explicitly states that plaintiff must
provide ‘each defendant’ with an affidavit that
indicates the plaintiff’s claim has merit. N.J.S.A.
2A:53A-27. The question then is whether the
plaintiff must provide each defendant with an
affidavit stating that the plaintiff’s claim against
that specific defendant has merit. The statute does
not directly impose such a requirement.280
However, the court noted that in In re Hall it held that the failure
to serve an affidavit of merit concerning a “specific defendant”
constitutes a failure to state a cause of action against that
defendant.281 The Fink Court therefore concluded that the Affidavit
of Merit Statute requires that a plaintiff provide an affidavit as to
each defendant detailing a reasonable probability that at least one
claim concerning each defendant has merit. This was a necessary
interpretation of the statute because
[i]f a plaintiff were permitted to name fifteen
defendants and provide each with an affidavit
specifying only that a claim against one defendant
is meritorious, the statutory purpose of reducing
frivolous lawsuits would be subverted or
circumvented.282
279. Fink v. Thompson, 167 N.J. 551, 558 (2001).
280. Fink v. Thompson, 167 N.J. 551, 559-60 (2001).
281. Fink v. Thompson, 167 N.J. 551, 560 (2001) (citing In re Hall, 147 N.J.
379, 390 (1997)).
282. Fink v. Thompson, 167 N.J. 551, 560 (2001).
The Appellate Division has also held that the better practice is to
specifically identify the defendants who deviated from the standard
of care in the affidavit of merit. In Medeiros v. O’Donnell &
Naccarato,283 plaintiff sued various engineers, architects and other
defendants seeking damages for personal injuries sustained at a
construction site. The plaintiff served an affidavit of merit signed
by a person who was both a licensed engineer and architect. The
defendant engineering company moved to dismiss the complaint for
failure to provide an affidavit of merit that specifically named the
engineering company, and the trial court dismissed the complaint.
In reversing, the Appellate Division noted, “The AMS is silent as to
any requirement that the affidavit specifically identify a defendant
by name.”284 The Appellate Division noted that since the affidavit
stated that it was being filed against “defendant architects and
engineers, respectively,” the affidavit was adequate.285 The Appellate
Division observed that the Supreme Court had stated in Burns v.
Belafsky,286 that “we will not add requirements not explicitly set
forth that deny plaintiffs their day in court.”287 The Medeiros
court added:
We caution, however, that the better practice would
be for plaintiffs to identify, by name, the specific
defendant alleged to have committed malpractice,
so as to avoid litigation such as this and the potential
for the dismissal of meritorious claims.288
When Must the Affidavit of Merit be Filed?
As noted above, the Affidavit of Merit Statute requires that the
plaintiff provide each defendant with an affidavit of merit within
60 days following the filing of the answer by the defendant.289 The
court may grant one additional period of 60 days to file the affidavit
283. Medeiros v. O’Donnell & Naccarato, 347 N.J. Super. 536 (App. Div.
2002).
284. Medeiros v. O’Donnell & Naccarato, 347 N.J. Super. 536, 540 (App. Div.
2002).
285. Medeiros v. O’Donnell & Naccarato, 347 N.J. Super. 536, 541 (App. Div.
2002).
286. Burns v. Belafsky, 166 N.J. 466 (2001).
287. Medeiros v. O’Donnell & Naccarato, 347 N.J. Super. 536, 540-41 (App.
Div. 2002)
(citing Burns v. Belafsky, 166 N.J. 466, 470 (2001)).
288. Medeiros v. O’Donnell & Naccarato, 347 N.J. Super. 536, 542 (App. Div.
2002) (citing
Galik v. Clara Maass Med. Ctr. 167 N.J. 341, 357-358 (2001)).
289. N.J.S.A. 2A:53A-27.
“upon a finding of good cause.” 290 The New Jersey Supreme Court
in In re Hall291 briefly reviewed the Affidavit of Merit Statute and
observed that the time for serving an affidavit is calculated from
the date each defendant files the answer.292
The question of when a motion to extend time to serve an
affidavit of merit must be filed was answered in Burns v. Belafsky.293
In Burns, plaintiff’s counsel had received an expert report prior to
filing suit, but admitted that he inadvertently failed to obtain and
serve an affidavit of merit within the 60-day period permitted by
the statute. After 60 days but before 120 days had elapsed after
the filing of the one defendant’s answer, that defendant moved to
dismiss the complaint for failure to serve an affidavit of merit. The
plaintiff’s counsel immediately obtained and served an affidavit of
merit. The defendant contended that since the plaintiff had not
filed an application to extend the time to serve the affidavit of merit
within the initial 60 days, the plaintiff was barred from obtaining
an extension of 60 days. The trial court dismissed the complaint.
In reversing and allowing the case to proceed, the Supreme Court
stated:
We do not know whether plaintiffs will ultimately
prevail at trial. We do know that in this case, an
expert’s report was obtained even before the
complaint was filed. Indeed, the physician who
prepared that report later executed the affidavit,
asserting to the merit of plaintiffs’ claims. When a
statute is susceptible of an interpretation true to its
purpose and that permits plaintiffs to proceed with
meritorious claims, we will not add requirements
not explicitly set forth that deny plaintiffs their
day in court. We hold therefore that an affidavit
submitted within the sixty-day extension period
should be considered timely filed so long as good
cause is found by the trial court.294
290. N.J.S.A. 2A:53A-27; see also In re Hall, 147 N.J. 379, 390 (1997).
291. In re Hall, 147 N.J. 379, 391 (1997).
292. In re Hall, 147 N.J. 379, 391 (1997).
293. Burns v. Belafsky, 166 N.J. 466 (2001), aff’g 326 N.J. Super. 462 (App.
Div. 1999).
294. Burns v. Belafsky, 166 N.J. 466, 470-71 (2001).
The Supreme Court then affirmed the Appellate Division’s
conclusion that inadvertence of counsel constituted good cause.295
The Burns Court added:
In this case, the Court is guided in its interpretation
of the extension provision of the statute by the
legislative policy not only to dispose of meritless
malpractice claims early in the litigation, but
also to allow meritorious claims to move forward
unhindered. In order that meritorious claims are
not defeated by a strict application of the initial
sixty-day filing deadline, the Legislature included
the extension provision, allowing a plaintiff to
file outside of the first sixty-day period when
good cause is shown. Requiring plaintiffs to file
a motion for an extension within the first sixty
days in order to avail themselves of the extension
provision simply adds a technical precondition
that the Legislature did not include in the statute.
We decline to do so. Imposing such a technical
requirement is unwarranted, especially where the
Legislature has indicated a preference for flexibility
by including the extension provision and thereby
allowing leeway in the filing deadline.296
The Court instructed the Civil Practice Committee to revise
the case information statement to specifically inquire about the
affidavit of merit and thereby serve as notice to plaintiffs regarding
the Affidavit of Merit Statute.297
295. Burns v. Belafsky, 166 N.J. 466, 478 (2001).
296. Burns v. Belafsky, 166 N.J. 466, 475 (2001).
297. Burns v. Belafsky, 166 N.J. 466, 477 (2001). See also Burns v. Belafsky, 326
N.J. Super.
462 (App. Div. 1999), aff’d, 166 N.J. 466 (2001), where the Appellate
Division held:
While carelessness and inadvertence on the part of an attorney is
insufficient grounds
for the establishment of excusable neglect, such is not necessarily the case
when it
comes to a determination of whether good cause exists to excuse late
filings . . .
A review of the record fails to indicate that the defendants suffered any
demonstrable prejudice by counsel’s twenty-five to thirty-five day delay in
filing.
It is necessary to look at the overall purpose of the statute to determine
whether
good cause exists to justify an extension of time thereby excusing counsel’s
failure
to file the affidavit of merit within the initial sixty day period. The overall
purpose
of the Affidavit of Merit Statute is ‘to require plaintiffs in malpractice cases
to
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The plaintiff cannot delay the time for filing an affidavit of
merit by delaying issuance of a summons and service of the
complaint.298 In Czepas v. Schenk,299 the plaintiff filed suit but,
because plaintiff’s counsel was unable to obtain affidavits of
merit, the summons was not issued and the defendants were
not served with the complaint for approximately two years.
The trial court dismissed the complaint, concluding that the
plaintiff should not have been permitted to defeat the statute of
limitations and the affidavit of merit defenses by failing to serve
the summons and complaint.300 The trial court therefore dismissed
the complaint without prejudice and ordered that the refiling of a
new complaint will not relate back to the filing date of the original
complaint. In affirming, the Appellate Division noted that by
failing to issue the summons and serve the complaint, plaintiff,
effectively rewrote the Affidavit of Merit Statute—
he extended the statutory 60-day time frame
within which to provide the Affidavit of Merit to
two years. This conduct undermined one of the
legislative purposes of the statute, that plaintiff
make a threshold showing of a meritorious claim
at an early stage in the litigation.301
The Czepas court took note of the conflict between the statute
of limitations, which compels the filing of a lawsuit, and the
Affidavit of Merit Statute, which mandates that a lawsuit not
make a threshold showing that their claim is meritorious, in order that
meritless
lawsuits readily could be identified at an early stage of litigation.’
Burns v. Belafsky, 326 N.J. Super. 462, 471-72 (App. Div. 1999), aff’d, 166
N.J. 466 (2001)
(quoting In re Hall, 147 N.J. 379, 391 (1997)); see also Galik v. Clara Maass
Med. Ctr.,
167 N.J. 341, 351 (2001) (the Supreme Court reiterated that “if a plaintiff
files a motion
to extend time, establishing good cause for the late filing, and also files an
affidavit of
merit within the overall 120-day window provided in N.J.S.A. 2A:53A-27,
those actions
will be deemed timely.”); Familia v. Univ. Hosp. of N.J., 350 N.J. Super. 563,
568-69 (App.
Div. 2002) (Appellate Division said inappropriate to extend Affidavit of
Merit by only
30 days rather than statutorily permitted 60 days). But see Douglass v. Obade,
359 N.J.
Super. 159, 161 (App. Div. 2003) (motion to extend time to file
appropriately denied where
plaintiff did not have a signed affidavit of merit until 160 days after the
answer was filed
and provided “no reasonable explanation” as to why the affidavit was not
supplied on a
timely basis).
298. Czepas v. Schenk, 362 N.J. Super. 216 (App. Div. 2003).
299. Czepas v. Schenk, 362 N.J. Super. 216 (App. Div. 2003).
300. Czepas v. Schenk, 362 N.J. Super. 216, 220 (App. Div. 2003).
301. Czepas v. Schenk, 362 N.J. Super. 216, 225 (App. Div. 2003).
be filed unless the plaintiff is in possession of or can reasonably
anticipate obtaining an affidavit of merit. However, the court
noted that in such cases the plaintiff should either seek pre-suit
depositions or conduct discovery shortly after the filing of the
complaint. The court therefore affirmed the dismissal of the
complaint.
Dismissal with Prejudice Absent
Extraordinary Circumstances
The Supreme Court ruled in Tischler v. Watts325 that dismissal for
failure to serve the affidavit of merit “should be with prejudice unless
there are ‘extraordinary circumstances.’”326 Quoting Cornblatt v.
Barow, the Court stated, “Where such circumstances do exist, however,
fairness dictates that we dismiss the action without prejudice.”327
However, in Ferreira, Justice Long explained in a concurring
opinion:
prejudice. The plaintiff appealed and the Appellate Division reversed,
holding that the
plaintiff had substantially complied with the Affidavit of Merit Statute,
citing Fink and
Galik. However, the Appellate Division reiterated that:
Our decision is not intended to be a license to plaintiffs or their counsel in
malpractice cases to ignore the substantive and procedural requirements of
the
affidavit of merit statute in the hope that a higher court will find substantial
compliance and allow them their day in court. We admonish the plaintiffs’
bar not
to be lulled into a false sense of security based on the trend of the Supreme
Court
to allow an expansive interpretation of substantial compliance.
Hefferon v. Gitler, 346 N.J. Super. 141, 150 (App. Div. 2001).
324. Kritzberg v. Tarsny, 338 N.J. Super. 254, 259 (App. Div. 2001).
325. Tischler v. Watts, 177 N.J. 243 (2003).
326. Tischler v. Watts, 177 N.J. 243, 246 (2003).
327. Tischler v. Watts, 177 N.J. 243, 246 (2003) (quoting Cornblatt v. Barow,
153 N.J. 218,
247 (1998)).
Cornblatt’s mandatory dismissal with prejudice rule
should be limited to those cases in which a plaintiff
cannot or will not produce an affidavit of merit at all.
Concomitantly, trial judges should have available
to them a full panoply of discretionary remedies
for procedural deficiencies in complying with the
Affidavit of Merit statute, including dismissal with
or without prejudice and discovery-type sanctions
such as reasonable expenses incurred in obtaining
the affidavit along with counsel fees.328
Justice Long’s interpretation is the only interpretation consistent
with the courts’ desire to avoid the dismissal of meritorious cases.329
Rather than dismiss, a court should impose appropriate sanctions
and fees where a proper affidavit of merit is served prior to the
return date of the motion.
The Tischler Court then instructed that whether extraordinary
circumstances exist requires “a fact-sensitive [case-by-case]
analysis.”330 The Court’s review of the facts demonstrated that
Tischler was such a case, where plaintiff’s counsel was replaced by
new counsel after being diagnosed with lung cancer and the new
counsel discovered the expert withheld the fact that his license had
been revoked.331 The Court explained:
Indeed, if ever there were a case in which
extraordinary circumstances justified a failure to
comply with procedural requirements, this is it.
328. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 157 (2003) (Long, J.
concurring
in part, dissenting in part). Justice Zazzali and Judge Pressler, temporarily
assigned, joined in
Justice Long’s opinion. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144,
159 (2003).
329. See discussion, § 7-7:18.
330. Tischler v. Watts, 177 N.J. 243, 246 (2003).
331. Tischler v. Watts, 177 N.J. 243, 244-45 (2003). In Tischler, plaintiff’s
attorney retained
a medical expert to review the relevant medical records and if appropriate,
execute an
affidavit of merit. The plaintiff’s expert supplied a “curriculum vitae, which
chronicled
an impressive career in plastic surgery and listed academic appointments
and research
publications.” Tischler v. Watts, 177 N.J. 243, 244-45 (2003). After reviewing
the records, the
plaintiff’s expert executed the affidavit of merit. The plaintiff’s counsel was
then diagnosed
with lung cancer, and another attorney assumed responsibility for handling
the case.
Thereafter, the defendant moved to dismiss the complaint because the
affidavit of merit was
improperly drafted. The plaintiff’s new attorney then discovered that the
expert’s license
had been revoked, but that this information had been fraudulently withheld
from plaintiff’s
initial counsel. Nevertheless, the trial court dismissed the complaint with
prejudice, and the
Appellate Division affirmed but the Supreme Court reversed. Tischler v.
Watts, 177 N.J.
243, 244-45, 247 (2003).
A fact-sensitive analysis here inexorably leads us
to the conclusion that these circumstances are
precisely the sort of ‘extraordinary’ circumstances
meant under the standard. By all accounts,
[plaintiff’s initial counsel] was a competent
attorney who, in the ordinary course, may well
have discovered and rectified the deficiencies in
Dr. Schoenbach’s Affidavit of Merit within the 120
days permitted by the statute. N.J.S.A. 2A:53A-27;
Burns, supra, at 465-66. But for the immediate and
debilitating effects of her aggressive radiation and
chemotherapy treatments, she certainly would
have had an opportunity to comply with the
statutory requirements. It would be counter to the
fundamental purpose of the Affidavit of Merit
Statute to dismiss this case with prejudice when
such compelling circumstances exist and when the
underlying case may be a meritorious lawsuit that,
except for those circumstances, would have been
timely filed. The decision of the Appellate Division
is reversed. The dismissal of plaintiff’s case shall be
without prejudice.332
332. Tischler v. Watts, 177 N.J. 243, 247 (2003). But see Stoecker v. Echevarria,
408 N.J.
Super. 597 (App. Div. 2009), in which the court did not find extraordinary
circumstances
existed. In Stoecker, a legal malpractice case, the complaint was filed on
August 10, 2005.
The defendant lawyer filed an answer in September 2006. On July 2, 2007,
the defendant
lawyer filed a motion to dismiss the complaint for failure to serve an
affidavit of merit. On
July 17, 2007, plaintiff served an affidavit of merit dated January 30, 2007
and an expert
report written dated March 7, 2007. In affirming the dismissal of the case,
the Appellate
Division held that:
Here, plaintiff’s attorney had an affidavit of merit that had been signed by a
qualified professional on January 30, 2007, but did not serve the affidavit of
merit
until July 17, 2007, which was more than 120 days after Londono had filed
her
amended answer to the complaint. Plaintiff’s attorney provided no
explanation
for failing to serve the affidavit within the time required by N.J.S.A.
2A:53A 27.
Plaintiff therefore did not show that the failure to serve a timely affidavit of
merit
was due to ‘extraordinary circumstances.’ . . .
Moreover, plaintiff did not establish that she substantially complied with
N.J.S.A. 2A:53A-27. Plaintiff failed to show that she generally complied
with the
statute and provided no explanation for her lack of compliance.
Stoecker v. Echevarria, 408 N.J. Super. 597, 613 (App. Div. 2009). The Stoecker
panel recalled
that in Ferreira, the Supreme Court stated that where the plaintiff serves the
affidavit of
merit before the defendant files a motion to dismiss, “‘the defendant shall
not be permitted
to file such a motion based on the late arrival of the affidavit.’” Stoecker v.
Echevarria, 408
N.J. Super. 597, 613 (App. Div. 2009).
Failure to Put Expert Under Oath
Renders Affidavit Non-Compliant
The appellate division explained that a failure to place the
declarant expert under oath was not a mere technical deficiency,
and therefore a dismissal was proper, in Tunia v. St. Francis
Hospital.333 In Tunia, plaintiff failed to supply an affidavit of
merit but provided a Certificate of Merit and later, after the initial
dismissal, an affidavit of merit, both signed by the deponents
before a notary public.334 The court found that neither document
satisfied the requirements of an affidavit:
Neither of the doctors was placed under oath
in connection with executing the documents.
Statements completed by the notary’s public are
in the form of acknowledgments necessary to
record an instrument, N.J.S.A. 46:14-2.1 rather
than a jurat, evidencing that the notary placed the
doctor under oath at the time the document was
executed.335
The court explained that the failure to place the declarant under
oath was not a mere technical deficiency, and therefore a dismissal
was proper.336
333. Tunia v. St. Francis Hosp., 363 N.J. Super. 301 (App. Div. 2003).
334. Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 303-06 (App. Div. 2003).
Plaintiff filed
suit in September 1999 and the defendant filed an answer in December
1999. The plaintiff
did not supply an affidavit of merit and, after 60 days, the defendant
moved to dismiss the
complaint. While that motion was pending the plaintiff supplied a
“Certificate of Merit.”
The certificate of merit stated that the expert deponent upon his oath
deposes and says that
he was a podiatrist licensed in New Jersey, that he had no financial interest,
and that the care
rendered to the plaintiff by the defendant fell outside professional
standards.
The so-called certificate of merit was then acknowledged by a notary who
stated that the
deponent “personally came before me and acknowledged under oath and
to my satisfaction
that the expert signed the document as his own act and deed.” The notary
signed the
document and sealed it. However, discovery revealed that the expert was
not board certified
and had not been practicing podiatry for five years, and therefore was not
qualified to render
the affidavit of merit. The trial court dismissed the complaint in May 2000.
Shortly thereafter
the plaintiff served another document captioned as affidavit of merit which
was executed by
another doctor. This affidavit of merit stated that the doctor was licensed
to practice podiatry
for 20 years, that he had no financial interest in the matter, and that the
care rendered to the
plaintiff by the defendant fell outside accepted professional standards. The
second affidavit of
merit concluded with an affirmation which was notarized. In March 2002
the plaintiff moved
for reconsideration of the dismissal and the trial court denied that motion.
The Appellate
Division affirmed. Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 303-06
(App. Div. 2003).
335. Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 306 (App. Div. 2003).
336. Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 305 (App. Div. 2003).
Failure to Promptly Seek Dismissal Estops Defendant
In Ferreira v. Rancocas Orthopedic Associates,337 the Supreme
Court applied the doctrines of estoppel and laches to save a case
from dismissal due to the failure to timely serve an affidavit of
merit.338 Reviewing the legislative history and judicial interpretation
of the Affidavit of Merit Statute, the Court reiterated that the
purpose of the Affidavit of Merit Statute was to “weed out frivolous
lawsuits early in the litigation while, at the same time, ensuring that
plaintiffs with meritorious claims will have their day in court.”339
The Ferreira Court then noted that the plaintiff in that case had
in fact obtained the affidavit of merit prior to the expiration of
the statutory deadline and served it on the defendant before the
defendant had moved to dismiss.340 In reversing the dismissal of
the case, the Court explained that “principles of equity and the
essential goal of the statute—to eliminate frivolous lawsuits—are
not advanced by dismissing the complaint.”341 The Court explained
that where the defendant waited until after it had received the
affidavit to move to dismiss, the defendant “should be estopped
from claiming entitlement to dismissal as a remedy.”342
Similarly, in the companion case, Knorr v. Smeal,343 the Supreme
Court concluded that the defendant was estopped from moving
337. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
338. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
339. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003) (citing
Hubbard v.
Reed, 168 N.J. 387 (2001)).
340. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 148-49, 152-53
(2003). In
Ferreira, the plaintiff filed suit in May 2000. The defendant answered in
August 2000.
Counsel for plaintiff had obtained an affidavit of merit in August 2000, but
he inadvertently
failed to serve the affidavit of merit on counsel for the defendant. In
January 2001, 18 days
after the expiration of the 120-day limitation in the Affidavit of Merit
Statute, counsel
for the defendant advised counsel for the plaintiff about the failure to serve
the affidavit
of merit. Counsel for plaintiff immediately faxed the affidavit of merit to
counsel for
the defendant. Nevertheless, the defendant moved to dismiss the
complaint for failure to
serve the affidavit of merit. The trial court granted the motion and the
Appellate Division
affirmed. The Supreme Court reversed. Ferreira v. Rancocas Orthopedic Assocs.,
178 N.J.
144, 148-49 (2003).
341. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 153 (2003).
342. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 153 (2003).
343. Knorr v. Smeal, 178 N.J. 169 (2003).
to dismiss due to the failure to move promptly to dismiss the case.
In that case, defendant did not seek to dismiss the complaint until
more than 14 months after the filing deadline for the affidavit of
merit.344 In reversing a dismissal of the complaint, the Supreme
Court stated:
In this case, defendant did not act on plaintiffs’
failure to file an affidavit until more than fourteen
months after the filing deadline, despite knowing
that his co-defendant, Dr. Lockwood, had filed a
timely motion and was granted relief. …
… Accordingly, because of defendant’s belated
filing of the motion, and the plaintiffs’ reliance on
his failure to do so timely, defendant is equitably
estopped from gaining a dismissal.345
The Court also explained that the defendant had “slept on
his rights” and that “[b]y application of the doctrine of laches,
defendant forfeited his right to pursue the motion.”346
However, counsel should beware that in Stoecker v. Echevarria,347
the court ruled a defendant was not estopped despite engaging in
discovery because defendant filed the motion to dismiss less than
three months after the affidavit of merit deadline passed and prior
to plaintiff filing a late affidavit of merit. The court also noted that
there had been only “limited paper discovery exchanged.”348 The
Stoecker court quoted Ferreira for holding that:
344. Knorr v. Smeal, 178 N.J. 169, 174 (2003). The plaintiff filed suit in July
1999 against
several defendants. In December 1999 two defendants moved for summary
judgment due to
plaintiff’s failure to serve an affidavit of merit. The motion was granted as
to one defendant
and denied as to another defendant who had failed to provide medical
records. Thereafter,
the parties participated in the discovery process including the taking of
depositions and
service of an expert report by the plaintiff. In March 2001, the defendant
moved to dismiss
for failure to serve an affidavit of merit. The trial court dismissed the case
and the Appellate
Division affirmed. Knorr v. Smeal, 178 N.J. 169, 173-76 (2003).
345. Knorr v. Smeal, 178 N.J. 169, 179-80 (2003).
346. Knorr v. Smeal, 178 N.J. 169, 181 (2003).
347. Stoecker v. Echevarria, 408 N.J. Super. 597 (App. Div. 2009).
348. Stoecker v. Echevarria, 408 N.J. Super. 597 (App. Div. 2009). In Stoecker,
the Appellate
Division rejected plaintiff’s contention that the defendant was estopped
from raising the
affidavit of merit defense because the defendant continued to exchange
discovery after
the statutory deadline expired. Plaintiff relied on Knorr v. Smeal. The Stoecker
panel
distinguished Knorr, observing that the Supreme Court held in Knorr that
the defendant
had waited 14 months before filing the motion to dismiss, and had engaged
in the exchange
of substantial discovery and depositions, thereby causing the “plaintiffs to
incur ‘significant
expert and deposition costs, as well as emotional stress under the mistaken
belief that their
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“If defense counsel files a motion to dismiss after
the 120-day deadline and before plaintiff has
forwarded the affidavit, the plaintiff should expect
that the complaint will be dismissed with prejudice
provided the doctrines of substantial compliance and
extraordinary circumstances do not apply.”349
The Ferreira Conference
In Ferreira, the Supreme Court also mandated a new procedural
requirement for malpractice cases. The Ferreira Court instructed
that in the future, the trial courts must hold “an accelerated case
management conference” within 90 days of the service of an
answer in all malpractice cases. This conference will resolve any
affidavit of merit questions and can be utilized to address other
discovery issues.350
Does the Failure to Hold a Ferreira Conference
Extend the Time to Serve an Affidavit of Merit?
In Paragon Contractors, Inc. v. Peachtree Condominium
Association,351 the Supreme Court held that the trial court’s failure
to hold a Ferreira conference352 does not toll the time to serve the
affidavit of merit, overruling in part, Saunders ex rel. Saunders v.
Capital Health System at Mercer.353 In Paragon, a third-party
defendant pled the affidavit of merit statute as an affirmative defense
but waited more than 120 days after it filed its answer to move
to dismiss on grounds the third-party plaintiff had not served an
cause of action was still viable.’” Stoecker v. Echevarria, 408 N.J. Super. 597,
614 (App. Div.
2009) (quoting Knorr v. Smeal, 178 N.J. 169, 180 (2003)). However, in
Stoecker, the affidavit
of merit was due by April 18, 2007, and the defendant filed her motion to
dismiss on July 2,
2007, and only limited paper discovery had been exchanged. Stoecker v.
Echevarria, 408 N.J.
Super. 597, 614-15 (App. Div. 2009).
349. Stoecker v. Echevarria, 408 N.J. Super. 597, 613 (App. Div. 2009)
(quoting Ferreira v.
Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003)) (emphasis in original).
350. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 153 (2003).
351. Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415 (2010).
352. See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (requiring
that trial
courts hold “an accelerated case management conference” within 90 days
of the service of
an answer in all malpractice cases to resolve any affidavit of merit questions
and address
other discovery issues). See § 7-7:8.2 for discussion of the Ferreira case.
353. Saunders ex rel. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super.
500 (App.
Div. 2008).
affidavit of merit. That motion was filed before the trial court had
scheduled a Ferreira conference. The third-party plaintiff served the
affidavit of merit before the return date of the motion, and argued
that the trial court’s failure to schedule a Ferreira conference tolled
the time to serve the affidavit of merit. The Supreme Court held:
going forward, reliance on the scheduling of a
Ferreira conference to avoid the strictures of the
Affidavit of Merit statute is entirely unwarranted
and will not serve to toll the statutory time frames.
Indeed, it is only the confusion over the role of the
Ferreira conference—which now has been addressed
and clarified—that warrants relief in this case.354
Can the Ferreira/Affidavit of Merit
Conference be Waived?
The Ferreira conference may be omitted “‘when the Affidavit
of Merit has been provided by plaintiff and all defendants have
waived any objections to its adequacy.’”355
Is the Affidavit of Merit Waived if the Defendant
Withholds Medical Records Needed to Prepare
the Affidavit?
Records Having Substantial Bearing
on Preparation of Affidavit of Merit
Defendants in malpractice cases have a duty to supply all
relevant and requested medical records, and the right to an
affidavit of merit is waived if the records are not supplied.356
In interpreting the Affidavit of Merit Statute, the New Jersey
Supreme Court in In re Hall 357 noted that an affidavit of merit
is not required if the plaintiff files a sworn statement certifying
that the defendant failed to produce the “medical records or
354. Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 426
(2010).
355. Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 424
(2010) (quoting
Waiver of Affidavit of Merit Conference, 176 N.J.L.J. 1006 (2004)). The Notice
to the
Bar dated May 25, 2004 re the waiver of affidavit of merit conference can
be found at
www.judiciary.state.nj.us/notices/n040527b.htm.
356. N.J.S.A. 2A:53A-28.
357. In re Hall, 147 N.J. 379, 390 (1997).
information having a substantial bearing on preparation of the
affidavit” within 45 days of a proper request for the records or
information.358 The concept was further explained in Aster v.
Shoreline Behavioral Health,359 where the plaintiff requested
but the defendant never furnished, either before or after suit
was instituted, the relevant medical records. The defendant
nevertheless moved to dismiss the complaint for failure to
provide an affidavit of merit, and the trial court dismissed the
case. The Appellate Division reversed, holding that the medical
records presumptively had a substantial bearing on the ability
to prepare an affidavit of merit, and that plaintiff had complied
with N.J.S.A. 2A:53A-28, which eliminated the obligation to file
an affidavit of merit.360
The Aster court added that the defendant had not overcome
the presumption that the records had “‘a substantial bearing on
preparation of the affidavit.’”361
The Aster court also observed that plaintiff did not file the
motion to serve the statement in lieu of the affidavit of merit until
more than 120 days after the defendant answered the complaint.
Nevertheless, this delay did not mandate the dismissal of the case.
The court explained:
The Legislature that created the affidavit of merit
requirement also created the ‘sworn statement’
safety valve, however, and we see no legislative
purpose that would be served by construing or
applying that provision restrictively. In our view,
it advances the legitimate purposes of this safety
valve to relate back the timeliness of the sworn
statement application, particularly in as much as
358. In re Hall, 147 N.J. 379, 390 (1997); see also N.J.S.A. 2A:53A-28.
359. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536 (App. Div.
2002).
360. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 543 (App. Div.
2002). The
court stated:
[W]e are persuaded that in the context of the facts presented here, and in
the
language of N.J.S.A. 2A:53A-28, it should be presumed that the ‘medical
records
or other records or information’ not produced have had ‘a substantial
bearing on
preparation of the affidavit,’ and that the burden of establishing otherwise
should
be borne by the party that has not produced the records.
Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 543 (App. Div.
2002).
361. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 544 (App. Div.
2002)
(quoting N.J.S.A. 2A:53A-28).
the Affidavit of Merit Statute is not to be read in a
purely mechanical fashion.362
The Aster court distinguished and disagreed with Scaffidi v.
Horvitz,363 which held that N.J.S.A. 2A:53A-28 required a plaintiff
to identify with specificity any medical records needed to prepare
the affidavit of merit.364 The Aster court explained:
Application in this case of the type of limitation
established in Scaffidi would provide a wholly
undeserved windfall to the non-producing party,
which surely could have inferred, if not the particular
use plaintiff intended to make of plaintiff’s own
medical records, at least that they were being sought
in respect of litigation or a claim.365
The Aster court concluded that the
sworn statement procedure provided by N.J.S.A.
2A:53A-28 should be sensibly and not restrictively
construed … to presumptively deem the medical
records not produced … to have had ‘substantial
bearing on preparation of the affidavit,’ and to
require the non-producing party, here Shoreline, to
establish otherwise. For the same reasons, we deem
to have been timely made the request by plaintiff to
file a ‘sworn statement’ that ensued from unhonored
document requests antedating not only the
expiration of the two sixty-day periods prescribed
in N.J.S.A. 2A:53A-27 but also the filing of suit.366
In the Scaffidi case with which the Aster court disagreed, the
plaintiff asserted that the affidavit of merit need not be served
because the defendant had not provided logs of the procedures
performed on the plaintiff within 45 days of service of the plaintiff’s
notice to produce as required by N.J.S.A. 2A:53A-28.367
362. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 545-46 (App.
Div. 2002).
363. Scaffidi v. Horvitz, 343 N.J. Super. 552 (App. Div. 2001).
364. Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001).
365. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 548-49 (App.
Div. 2002).
366. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 549-50 (App.
Div. 2002).
367. Scaffidi v. Horvitz, 343 N.J. Super. 552, 556 (App. Div. 2001). Plaintiff
had alleged
that the defendant negligently performed certain medical procedures. The
court noted that
the complaint was served on the defendant in December 1999 and was
accompanied by
The trial court dismissed the complaint in Scaffidi and the
Appellate Division affirmed. The court explained that a plaintiff
may be prevented from providing an affidavit of merit if the
defendant fails to produce essential records but the obligation to
provide an affidavit of merit is not excused entirely merely because
a defendant fails to produce documents. The Scaffidi court
concluded that plaintiff had more than 60 days after receipt of
the logs to prepare an affidavit of merit “but failed to do so.”368 The
Appellate Division therefore affirmed the dismissal with prejudice
of the plaintiff’s case.
The court also observed that a plaintiff may request documents
which are not essential to preparation of the affidavit of merit
and that it would be difficult for the defendant to know which
documents were essential to production of the affidavit of merit.
Thus, the court said:
N.J.S.A. 2A:53A-28 must be construed to require
a plaintiff to identify with specificity any medical
records or information he believes are needed
to prepare an affidavit of merit, in order to trigger
the running of the forty-five day period for a
response.369
As Aster demonstrated, this conclusion is flawed. The plaintiff is
often in no position to determine which records will be the critical
records in preparation of the affidavit of merit. The New Jersey
a notice to produce, which included a demand for production of the
procedure log. The
defendants filed answers to the complaint in January and February 2000. In
February 2000
plaintiff filed a motion for an extension of time to file an affidavit of merit
and supported
the motion with an affidavit from counsel for plaintiff which stated that it
was necessary
to obtain the procedure log in order to prepare an affidavit of merit. Scaffidi
v. Horvitz,
343 N.J. Super. 552, 555 (App. Div. 2001). The court entered an order
extending the time
to serve the affidavit of merit to May 16, 2000. The plaintiff was provided
with all of the
documents that plaintiff requested by March 8, 2000. Scaffidi v. Horvitz, 343
N.J. Super.
552, 555 (App. Div. 2001). On the last day when an affidavit of merit could
be served,
May 16, 2000, plaintiff filed a motion for a second 60-day extension, an
application not
permitted by the Affidavit of Merit Statute. In the supporting certification,
the plaintiff
acknowledged receiving the documents needed to provide the affidavit of
merit by March 8,
2000 but asserted that additional time was still necessary. The defendant
filed a crossmotion
to dismiss the complaint. In answering, plaintiff claimed failure to provide
the logs
within 45 days of the notice to produce excused defendant from filing an
affidavit of merit.
Scaffidi v. Horvitz, 343 N.J. Super. 552, 556 (App. Div. 2001).
368. Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001).
369. Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001).
Administrative Code simply requires medical providers to provide
all medical records within 30 days.370
Records Not Needed for Affidavit
The failure to serve an affidavit of merit is not excused by
the failure to produce medical records which are not needed to
prepare the affidavit of merit. In Davies v. Imbesi,371 the court ruled
dismissal for failure to file an affidavit of merit was appropriate
despite a lack of X-rays because the X-rays were not needed for
the affidavit of merit but rather to prove causation. The plaintiff
did not serve an affidavit of merit within the time provided by the
Affidavit of Merit Statute and the defendants moved to dismiss
the complaint. After the defendants filed the motion to dismiss, the
plaintiff served an affidavit of merit. The plaintiff then contended
that compliance with the Affidavit of Merit Statute was excused
because the plaintiff’s counsel was unable to obtain copies of
certain X-ray films relevant to the case.372 The Appellate Division
rejected the argument, noting that
[a] portion of plaintiff’s argument appears to
contend that they were unable to produce an
affidavit of merit without the x-ray films because
it was the films that would allow them to address
the issue of proximate cause. The affidavit of
merit statute does not require, however, that the
affidavit address the issue of proximate cause; it
speaks only of an affidavit ‘that the care, skill or
knowledge exercised . . . in the treatment . . . fell
outside acceptable professional . . . standards or
treatment practices.’373
The court added, “plaintiffs were able to produce an affidavit of
merit on the basis of the X-ray report alone, without production
of the films.” 374 Similarly, in Guzman v. Jersey City Medical Center,375
370. See Chapter 6, § 6-2 regarding statutory and administrative code
regulations
regarding medical records.
371. Davies v. Imbesi, 328 N.J. Super. 372 (App. Div. 2000).
372. Davies v. Imbesi, 328 N.J. Super. 372, 377 (App. Div. 2000).
373. Davies v. Imbesi, 328 N.J. Super. 372, 378 (App. Div. 2000).
374. Davies v. Imbesi, 328 N.J. Super. 372, 379 (App. Div. 2000).
375. Guzman v. Jersey City Med. Ctr., 356 N.J. Super. 37 (App. Div. 2002).
the Appellate Division held that plaintiff cannot avoid filing an
affidavit of merit by requesting records which the plaintiff does
not reasonably believe to exist.376 In Guzman, the plaintiff had been
taken to the Jersey City Medical Center but left without being
seen by a doctor after the plaintiff felt he was being ignored.
The plaintiff’s counsel made a request to the hospital for medical
records and was advised that no records existed. The plaintiff
filed suit against numerous defendants including the Jersey City
Medical Center and filed a sworn statement in lieu of affidavit of
merit in which the plaintiff’s counsel certified that the defendant
had failed to produce the records needed to prepare an affidavit of
merit. The court rejected plaintiff’s assertion that the defendant’s
failure to provide medical records negated the obligation to serve
an affidavit of merit.
The same result was reached in Balthazar v. Atlantic City
Medical Center,377 where the plaintiff alleged that the defendants
negligently injured her ureter during a hysterectomy. The plaintiff
did not serve an affidavit of merit until more than 120 days after
the defendants’ answers had been filed and after the defendants had
filed a motion for summary judgment.378 The trial court dismissed
the case, and the Appellate Division affirmed. The court rejected
the plaintiff’s claim that improprieties with the medical records
excused compliance with the Affidavit of Merit Statute.379 The
court explained that the operative reports did not mention damage
to the ureter because the surgeon was unaware of the damage.
In this case, like many others, defendants claim
that the damage that was inflicted was unknown
to them and thus was unrepaired and unrecorded.
This asserted lack of knowledge on defendants’
part provides a factual foundation for Balthazar’s
malpractice claim. It does not provide grounds for
avoidance of the requirements of the affidavit of
merit.380
376. Guzman v. Jersey City Med. Ctr., 356 N.J. Super. 37, 42 (App. Div. 2002).
377. Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13 (App. Div. 2003).
378. Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13, 18 (App. Div. 2003).
379. Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13, 21 (App. Div. 2003).
380. Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13, 22 (App. Div. 2003).
Furthermore, since other portions of the chart did describe the
damage to the ureter, the court concluded that there was no reason
that the plaintiff’s expert was unable to prepare an affidavit of merit
with the available documents.381 The Balthazar court distinguished
Aster which recognized a presumption that the non-produced
records may have a substantial bearing on preparation of the
affidavit of merit. The Balthazar court explained that the records
that were not produced were “wholly collateral” and therefore any
presumption had been overcome.382
Is an Affidavit of Merit Required in Common
Knowledge or Res Ipsa Cases?
The plaintiff is not required to serve an affidavit of merit in
common knowledge cases but may be required to do so in res ipsa
cases. The distinction is due to the fact that an expert may be required
in order to satisfy all of the elements of the doctrine of res ipsa
loquitur.385 In Hubbard v. Reed,386 addressing a claim that a dentist
extracted the wrongtooth, the Supreme Court held that an affidavit
of merit is not needed in common knowledge cases, reiterating
[t]he primary purpose of the Affidavit of Merit
Statute ‘is to require plaintiffs in malpractice
cases to make a threshold showing that their claim
is meritorious, in order that meritless lawsuits
readily [can] be identified at an early stage of the
litigation.’387
The Hubbard Court observed that “by definition, in common
knowledge cases an expert is not needed to demonstrate that a
defendant breached the duty of care.”388 The Court therefore
concluded that if a jury could determine without the assistance
of an expert that the defendant was negligent, “the threshold of
merit should be readily apparent from a reading of the plaintiff’s
complaint.”389 Nevertheless, the Court warned:
385. See § 7-12 regarding res ipsa loquitur.
386. Hubbard v. Reed, 168 N.J. 387 (2001).
387. Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Cornblatt v. Barow,
153 N.J. 218,
242 (1998) and In re Hall, 147 N.J. 379, 391 (1997)). In Hubbard, the
defendant dentist
pulled the wrong tooth, extracting a bicuspid instead of an incisor. The
plaintiff asserted
that an affidavit of merit was not needed in a common knowledge case.
The trial court
dismissed and the Appellate Division affirmed only to be reversed by the
Supreme Court.
388. Hubbard v. Reed, 168 N.J. 387, 394 (2001).
389. Hubbard v. Reed, 168 N.J. 387, 395 (2001); see also Levinson v. D’Alfonso
& Stein, 320
N.J. Super. 312, 321 (App. Div. 1999) (Wecker, J. concurring) (Judge
Wecker, in a concurring
opinion, noted that the Affidavit of Merit Statute does not apply to
malpractice claims that
are viable without expert testimony). The Hubbard Court cited Judge
Wecker’s concurrence
with approval. Hubbard v. Reed, 168 N.J. 387, 394 (2001); see also Natale v.
Camden Cnty.,
318 F. 3d 575 (3d Cir. 2003) (applying the common knowledge doctrine to
the Affidavit
of Merit Statute); Popwell v. Law Offices of Broome, 363 N.J. Super. 404 (Law
Div. 2002)
(plaintiff claimed her former attorneys failed to file a timely application for
a trial de novo
after an unsatisfactory result in arbitration; defendants moved to dismiss
the complaint
due to plaintiff’s failure to serve an affidavit of merit but the court denied
the motion,
concluding that the jury could determine that the defendant was negligent
utilizing common
knowledge) (citing Hubbard v. Reed, 168 N.J. 387, 397 (2001)).
[T]he wise course of action in all malpractice cases
would be for plaintiffs to provide affidavits even
when they do not intend to rely on expert testimony
at trial.390
The Court therefore reversed and remanded. In a significant
footnote, the Court held that an affidavit of merit may be required
in a res ipsa loquitur case because an expert may be required to
testify that the medical community recognizes that the claimed
injury does not occur in the absence of negligence.391
The Supreme Court reached the same conclusion in Palanque v.
Lambert-Wooley,392 decided on the same day as Hubbard, ruling
that the admitted misreading of a laboratory report supported a
claim based on common knowledge and therefore the plaintiff was
not required to serve an affidavit of merit.393 The Court reiterated
that the safer course of action would be to serve an affidavit of merit
even where the plaintiff does not intend to utilize expert testimony
at trial.394 The Palanque Court explained that if the defendant later
serves an expert report refuting the common knowledge claim, the
plaintiff will be permitted to respond with an expert for rebuttal
purposes but will not be permitted to present an expert on the
case-in-chief.395
Similarly, in Bender v. Walgreens Eastern Co., Inc.,396 the Appellate
Division held that “filling a prescription with the wrong drug” is
within the “common knowledge” exception to the Affidavit of
Merit Statute.397 The plaintiff in Bender alleged that he presented a
prescription for Primidone, but that Walgreens dispensed Prednisone.
In reversing the trial court’s dismissal, the Appellate Division stated:
390. Hubbard v. Reed, 168 N.J. 387, 397 (2001).
391. Hubbard v. Reed, 168 N.J. 387, 391 n.1 (2001).
392. Palanque v. Lambert-Wooley, 168 N.J. 398 (2000).
393. Palanque v. Lambert-Wooley, 168 N.J. 398, 407 (2000). Defendant read
the “specimen
identification numbers” on a laboratory report as the results of a pregnancy
test and
determined that plaintiff was pregnant when in fact she was not pregnant.
As a result of this
error, the plaintiff was diagnosed with an ectopic pregnancy and underwent
an unnecessary
operation.
394. Palanque v. Lambert-Wooley, 168 N.J. 398, 407 (2000) (citing Hubbard v.
Reed, 168
N.J. 387, 397 (2001)).
395. Palanque v. Lambert-Wooley, 168 N.J. 398, 407-08 (2000).
396. Bender v. Walgreens E. Co., Inc., 399 N.J. Super. 584 (App. Div. 2008).
397. Bender v. Walgreens E. Co., Inc., 399 N.J. Super. 584, 588 (App. Div.
2008) (citing
Hubbard v. Reed, 168 N.J. 387 (2001)).
Because the deviation from professional standards
entailed in a pharmacist’s filling a prescription for
‘primidone’ with ‘prednisone’ would be apparent to
the average person, we vacate the order of dismissal
and remand for further proceedings on that claim.398
However, the court explained that since expert testimony would
be needed
to establish Bender’s claims based on Walgreens’
failure to recognize the impropriety of the dosage
of ‘Prednisone’ delivered and failure to provide
adequate information or warnings. … Bender may
not pursue those alleged deviations or any others
that require expert testimony.399
Following up on the footnote in Hubbard concerning res ipsa,
the Appellate Division explained in Risko v. Ciocca.400 why
an affidavit of merit is required in res ipsa cases. In Risko, the
plaintiff alleged that his wife was discharged from the hospital
with a “leaking endarterectomy” which caused her death.401 The
plaintiff filed suit against several defendants but did not serve
an affidavit of merit. The plaintiff argued that the discharging
of a patient who was bleeding bespeaks negligence and that one
or more of the defendants must be responsible. The plaintiff
therefore contended that the doctrine of res ipsa loquitur should
be applied to the facts of the case and that application of this
doctrine eliminated the need for an affidavit of merit. However,
the Risko Court pointed out that in Hubbard, the Supreme Court
stated in a footnote that although an affidavit of merit is not
needed in a common knowledge case, an affidavit of merit may be
required in a res ipsa case because the plaintiff in such cases must
generally present expert testimony establishing that the event does
not ordinarily occur in the absence of negligence.402 The appellate
panel therefore affirmed the dismissal of the case.
398. Bender v. Walgreens E. Co., Inc., 399 N.J. Super. 584, 592 (App. Div.
2008).
399. Bender v. Walgreens E. Co. Inc., 399 N.J. Super. 584, 592 (App. Div.
2008).
400. Risko v. Ciocca, 356 N.J. Super. 406 (App. Div. 2003).
401. Risko v. Ciocca, 356 N.J. Super. 406, 408 (App. Div. 2003).
402. Risko v. Ciocca, 356 N.J. Super. 406, 411 (App. Div. 2003) (citing
Hubbard v. Reed,
168 N.J. 387, 391 n.1 (2001)).
Is an Affidavit of Merit Required
for Informed Consent Cases?
In Darwin v. Gooberman,403 the Appellate Division held the
affidavit of merit is required for informed consent cases:
[T]he judge was correct in dismissing those
portions of the complaint which asserted liability
against defendant for professional negligence or
malpractice. N.J.S.A. 2A:53A-27 clearly requires
this result, no matter what the possible potential
merit of plaintiff’s claim. …
We do not think an affidavit of merit is required
for the assaultand-battery, breach-of-contract,
and product-liability claims. These are not claims
for breach of professional responsibility, or which
involve a ‘physician’s deviation from a standard
of care,’ or sound medical judgment. Matthies v.
Mastromonaco, 160 N.J. at 35-36. Insofar as plaintiff
claims an assault-and-battery, ‘an unauthorized
touching or invasion of the patient’s body,’ id. at
36, and not a “deviation from a standard of care,”
plaintiff does not need an affidavit of merit. Ibid.
If plaintiff simply asserts that the doctor failed
to adequately “present the material facts so that
the patient can make an informed decision,” ibid.,
this asserts a malpractice claim, not an assaultandbattery claim. The failure to fully inform the
patient of risks and options is professional fault,
not assault. Invading a patient’s body without any
colorable type of consent or authorization, is an
unlawful assault, and beyond the contemplation of
N.J.S.A. 2A:53A-27.404
403. Darwin v. Gooberman, 339 N.J. Super. 467, 480 (App. Div. 2001),
abrogated in part by
Couri v. Gardner, 173 N.J. 328 (2002).
404. Darwin v. Gooberman, 339 N.J. Super. 467, 480 (App. Div. 2001),
abrogated in part by
Couri v. Gardner, 173 N.J. 328 (2002); see also Risko v. Ciocca, 356 N.J. Super.
406, 412 n.1
(App. Div. 2003).
Applicability to Third-Party Malpractice Complaint
In Nagim v. New Jersey Transit,416 a court concluded that the
Affidavit of Merit Statute applies “to the filing of a third-party
complaint when the cause of action pled requires proof of
410. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 304 (App. Div. 2001).
411. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 305 (App. Div. 2001).
412. N.J.S.A. 59:1-1.
413. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 305 (App. Div. 2001).
414. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 307 (App. Div. 2001).
415. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 308 (App. Div. 2001).
416. Nagim v. N.J. Transit, 369 N.J. Super. 103 (Law Div. 2003).
malpractice or professional negligence.”417 The court therefore
dismissed the third-party complaint of New Jersey Transit against
the third party defendant, Urbitran.418 However, the trial court
allowed Urbitran’s liability to remain on any jury verdict sheet.
The court held that:
By allowing Transit to diminish its own liability by
proving the negligence of Urbitran and allowing
the jury to apportion same, Urbitran will not be
liable to either Transit or plaintiff and Transit will
not become responsible for a share of plaintiff’s
damages greater than Transit’s own negligence
warrants. Plaintiff, likewise, will be unable to
recover against Urbitran because he failed to
comply with the affidavit of merit statute.419
Note, however, that a defendant who files a third-party
complaint against a licensed professional seeking indemnification
or contribution need not serve an affidavit of merit. In Diocese
of Metuchen v. Prisco,420 the plaintiff had retained the defendant,
Prisco, to perform architectural services converting a former high
school into a corporate business center. Prisco retained the thirdparty
defendant, Remington, to perform engineering services on
the project. After the Diocese filed suit against Prisco asserting
that the heating, ventilation and air conditioning system, and
parking lot drainage were improperly designed, Prisco filed a thirdparty
complaint against Remington seeking contribution and
indemnification. The trial court held that Prisco was not obligated
to serve an affidavit of merit as to Remington.
In affirming, the Appellate Division observed that the question
of whether an affidavit of merit is needed to pursue a thirdparty
complaint for contribution and indemnification against a
professional included within the Affidavit of Merit Statute was
left open in Burt. The court also recalled that it had held that a
counterclaim for professional negligence does require service of
417. Nagim v. N.J. Transit, 369 N.J. Super. 103, 115 (Law Div. 2003).
418. Nagim v. N.J. Transit, 369 N.J. Super. 103, 122 (Law Div. 2003).
419. Nagim v. N.J. Transit, 369 N.J. Super. 103, 122 (Law Div. 2003) (relying
upon Burt v.
W. Jersey Health Sys., 339 N.J. Super. 296, 307 (App. Div. 2001)).
420. Diocese of Metuchen v. Prisco, 374 N.J. Super. 409 (App. Div. 2005).
an affidavit of merit.421 In allowing the third-party complaint to
proceed, the Appellate Division explained:
Prisco’s third-party pleading, as against Remington,
asserts a true claim for contribution and for allocation
of fault as among joint tort-feasors rather than an
independent claim of professional negligence. It is
therefore analytically more like the positions of the
parties in Burt than in Manganaro or Couri....
.…
We therefore conclude that where a defendant
subject to the affidavit of merit statute asserts a
third-party claim in the nature of contribution
or joint-tortfeasor liability as against another
professional also subject to the statute, no affidavit
of merit is required.422
See also Highland Lakes Country Club v. Nicastro,423 holding
that an affidavit of merit is not required for an unaccrued
third-party claim.
Does the Affidavit of Merit Statute Apply
to Non-Malpractice Claims, Such as Contract
or Assault and Battery Claims?
An affidavit of merit is not required in cases alleging nonmalpractice
claims such as breach of contract or intentional torts.
For example, an affidavit of merit is not required in a claim against
an expert witness for breaching the duty of confidentiality. In
Couri v. Gardner,431 the Supreme Court observed that the Affidavit
of Merit Statute only applies to claims of “damages for personal
426. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewage
Auth.,
344 N.J. Super. 343, 347 (App. Div. 2001); see also Alpert Goldberg v. Quinn,
410 N.J. Super.
510 (App. Div. 2009) (regarding the need for an affidavit of merit to pursue
a counterclaim
in a legal malpractice case).
427. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewage
Auth.,
344 N.J. Super. 343, 346 (App. Div. 2001).
428. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewage
Auth.,
344 N.J. Super. 343, 347 (App. Div. 2001). In Manganaro, an engineering
firm sued its client
for breach of contract and the defendant filed a counterclaim asserting
breach of contract.
The engineers filed a motion seeking to dismiss the counterclaim for failure
to provide
an affidavit of merit. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys
Point Twp.
Sewage Auth., 344 N.J. Super. 343, 346 (App. Div. 2001).
429. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewage
Auth.,
344 N.J. Super. 343, 347 (App. Div. 2001).
430. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewage
Auth.,
344 N.J. Super. 343, 348-49 (App. Div. 2001).
431. Couri v. Gardner, 173 N.J. 328 (2002).
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injuries, wrongful death or property damage.”432 The Court then
instructed that the applicability of the Affidavit of Merit Statute
does not depend on the claimed cause of action but rather on
whether the claim requires proof of a deviation from the applicable
standard of care:
It is not the label placed on the action that is pivotal
but the nature of the legal inquiry. Accordingly,
when presented with a tort or contract claim
asserted against a professional specified in the
statute, rather than focusing on whether the claim
is denominated as tort or contract, attorneys and
courts should determine if the claim’s underlying
factual allegations require proof of a deviation from
the professional standard of care applicable to that
specific profession. If such proof is required, an
affidavit of merit is required for that claim, unless
some exception applies.433
The Couri Court explained that claims against professionals that
require proof of “ordinary negligence” would not be included by
the statute. Therefore, a claim of malpractice against the doctor
would require an affidavit, while a trip and fall claim in the
doctor’s office would not require an affidavit of merit.434 In Couri,
plaintiff hired the defendant, a psychiatrist, as an expert witness in
a divorce case involving visitation rights. The defendant prepared
a report that he sent to the plaintiff’s wife and the court-appointed
guardian without obtaining plaintiff’s consent and the plaintiff
filed suit asserting, inter alia, breach of contract.435 The Couri Court
concluded that the plaintiff did not need an affidavit of merit to
pursue such a claim against an expert witness.
Implicit in defendant’s hiring as an expert witness
was the condition that defendant would provide
his report to plaintiff only, and that it was within
432. Couri v. Gardner, 173 N.J. 328, 339 (2002).
433. Couri v. Gardner, 173 N.J. 328, 340 (2002).
434. Couri v. Gardner, 173 N.J. 328, 341 (2002).
435. Couri v. Gardner, 173 N.J. 328, 341 (2002). The defendant moved to
dismiss for
failure to submit an affidavit of merit. The plaintiff responded that his case
was based on
breach of contract and therefore an affidavit was not required. The trial
court dismissed the
complaint, and the Appellate Division affirmed, over a dissent.
plaintiff’s discretion whether to use the report and
provide it to others. Plaintiff is not claiming that
defendant erred in respect of the conclusions that
he drew concerning psychiatric/medical matters or
that defendant acted improperly from a psychiatric/
medical standpoint in interviewing plaintiff’s
child.436
Although the defendant’s breach of the duty of confidentiality
might have been a deviation from the standard of care:
proof of that deviation is not essential to the
establishment of plaintiff’s right to recover based
on breach of contract. Accordingly, plaintiff’s
breach of contract claim does not require proof of
a deviation from the professional standard of care
to be provided by a psychiatrist, and thus the claim
lays beyond the purview of the statute.437
See also Risko v. Ciocca,438 where the court disregarded plaintiff’s
attempt to characterize his claim as an intentional tort “such
as outrage, fraud, deceit, [and] misrepresentation.” The court
explained that it is not the label placed on the claim but rather
whether proof of deviation from the standard of care is required
that controls whether an affidavit of merit must be served on the
defendant. The court concluded that in any case where proof of a
deviation from the standard of care is required then the affidavit of
merit is also required.439
The Foundation for Expert
Testimony
Testimony Based on Knowledge, Training,
Experience or Education
An expert’s testimony must be based on the knowledge, training,
experience, or education of the expert.451 An instructive discussion of
the basis for expert opinion is found in Bellardini v. Krikorian,452 in
which the Appellate Division explained that those aforementioned
requirements for expert qualifications are listed in the disjunctive
and the expert need not have knowledge and experience and training.
Further, the court concluded that a doctor may express an opinion as
to accepted standards of medical care and “the expert is not required
450. Ryan v. Renny, 203 N.J. 37, 51 (2010) (quotation omitted); accord Paragon
Contractors,
Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 421 (2010).
451. See N.J. R. Evid. 702.
452. Bellardini v. Krikorian, 222 N.J. Super. 457 (App. Div. 1988).
to produce a treatise to support his opinion.”453 In Bellardini, during
his deposition, plaintiff’s expert testified that the defendant deviated
from the standard of medicine at the time but the expert could not
identify any medical literature establishing the relevant standard of
care.454 The trial court therefore barred the expert’s testimony but the
Appellate Division reversed because the expert could express his
personal opinion about the standard based on his experience and
need not support that opinion with a medical treatise.455
Similarly, the Appellate Division again addressed proper
foundation for expert testimony in Rosenberg v. Tavorath,456
explaining that
[e]vidential support for an expert opinion is not
limited to treatises or any type of documentary
support, but may include what the witness has
learned from personal experience.457
In Rosenberg, the plaintiff alleged that the defendant, an
oncologist, failed to properly monitor her husband’s response to
453. Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988).
454. Plaintiff alleged that the defendant negligently prescribed medication
to plaintiff’s
mother while she was pregnant with the plaintiff. Plaintiff’s expert opined
that the defendant
deviated from generally accepted standards by failing to
take adequate steps to assure that plaintiff’s mother was not pregnant when
he
prescribed the drug or consider her possible pregnancy thereafter and
advise her
of the dangers of an adverse reaction from the drug.
Bellardini v. Krikorian, 222 N.J. Super. 457, 459 (App. Div. 1988).
455. Bellardini v. Krikorian, 222 N.J. Super. 457, 461-63 (App. Div. 1988).
Defendant had
moved in limine to bar the testimony of plaintiff’s expert, arguing it was a
net opinion. The
trial court barred the plaintiff’s expert from testifying since he did not
provide evidential
support for his opinion. Bellardini v. Krikorian, 222 N.J. Super. 457, 461
(App. Div. 1988).
In reversing, the Appellate Division explained:
Obviously, the support for such expert opinion can be based on what the
witness
has learned from personal experience or from persons with adequate
training and
experience. . . .
Expert testimony may be furnished by a person whose knowledge, training
or
experience are deemed qualified to express their opinions on medical
subjects. . . .
The requirements for expert qualifications are in the disjunctive. The
requisite
knowledge can be based on either knowledge, training or experience. . . .
Expert testimony is admissible where the witness has peculiar knowledge
or
experience not common to the world which renders his opinion an aid to
the court
or jury in determining the question in issue.
Bellardini v. Krikorian, 222 N.J. Super. 457, 462, 463 (App. Div. 1988) (citing
Carbone v.
Warburton, 11 N.J. 418 (1953) and Hudgins v. Serrano, 186 N.J. Super. 465
(App.
Div. 1982)).
456. Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002).
457. Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citing
Bellardini v.
Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)).
chemotherapy, ultimately resulting in her husband’s death. The
plaintiff’s expert testified at trial that the decedent had suffered an
extremely toxic reaction to the initial course of chemotherapy, and
that the defendant was negligent in failing to reduce the dosage
of the second course of chemotherapy. The plaintiff’s expert
further testified that the defendant’s failure to reduce the dosage
of the second course of chemotherapy had caused the death of the
patient.
The defendants moved for an involuntary dismissal, asserting
that the testimony of plaintiff’s expert was inadequate because:
(1) he offered only his net opinion on the
appropriate standard of care unsupported by
reference to any medical literature or case studies;
(2) he testified that there was no standard of care
regarding dose modification, or, that it ranged
from a 5 percent to 25 percent modification and,
therefore, his testimony was too imprecise and
lacking in parameters to assist the jury; and (3) his
testimony on proximate cause was lacking because
he did not supply ‘some percent . . . in reasonable
medical probabilities’ demonstrating that a dose
reduction would have influenced the outcome.458
In reversing the trial court’s dismissal of the case, the Appellate
Division rejected the assertion that there was an inadequate
foundation for the testimony of the plaintiff’s expert or that the
expert rendered a net opinion.459 The court explained that plaintiff’s
expert provided:
adequate, particularized testimony sufficient to
establish a standard of care, a deviation from that
standard, and a causal link between that deviation
and the injury. He had personally administered the
chemotherapy drugs in question numerous times
over a twenty-year period. He studied and trained
458. Rosenberg v. Tavorath, 352 N.J. Super. 385, 393-94 (App. Div. 2002).
459. Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002). The
trial court
dismissed the case, concluding that the plaintiff’s expert did not establish
the standard of
care or that the alleged deviation was the proximate cause of the death of
the plaintiff’s
decedent.
in oncology for nearly a decade before becoming
board certified, and he served as chief of oncology
at two hospitals. He was certainly familiar with the
subject of his testimony and he repeatedly stated
that the majority of oncologists would concur with
his opinion regarding dose modification.460
The Appellate Division acknowledged the fact that plaintiff’s
expert did not cite or rely upon any treatises, articles, or protocols
in support of his opinion. However, the appellate panel explained
that an expert opinion may be based not only on medical literature
but also the expert’s training or experience. Additionally, as to
causation, the court reiterated that “[a]n expert’s opinion need
not be predicated on medical certainty.”461 The court therefore
remanded the case for trial.
General education or knowledge is also sufficient and the jury is
charged with weighing the reliability and credibility of an expert.
As the Appellate Division explained in Kimmel v. Dayrit,462 an
expert may
testify based upon his general education, training, and
reading of the medical literature, without specifying
particular texts or articles. The factual and scientific
basis for an expert’s opinion are among the factors
a jury is instructed to consider when it weighs the
reliability and credibility of an expert witness.463
Use of Multiple Experts
The use of multiple experts was approved in McLean v. Liberty
Health System.481 In McClean, the plaintiff alleged that the
475. N.J. R. Evid. 104. Under the New Jersey Rules of Evidence, Rule 104
provides for
a court hearing to determine any preliminary questions about a witness’s
qualifications,
relevance of testimony and admissibility.
476. Kemp v. State, 174 N.J. 412 (2002).
477. Kemp v. State, 174 N.J. 412, 416 (2002). The package insert advised that
the vaccine
should not be given to pregnant women or women of childbearing age
unless there was no
possibility of a pregnancy within the three months following vaccination.
Id.
478. Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991).
479. Kemp v. State, 174 N.J. 412, 425 (2002).
480. Kemp v. State, 174 N.J. 412, 432 (2002).
481. McLean v. Liberty Health Sys., 430 N.J. Super. 156 (App. Div. 2013).
defendant emergency department doctor negligently failed to
diagnose her son’s infection, resulting in her son’s death.482
At trial, the plaintiff called expert witnesses in emergency
medicine, infectious diseases and radiology. The plaintiff had been
prepared to call two experts in emergency medicine and two in
radiology. Although it was unclear in the record, the trial court
had apparently ordered that the plaintiff could only call one expert
in each specialty.Counsel for the defendant then told the jury in
opening that:
[W]e will prove to you that no emergency room
physician with a possible exception of Dr. Bagnell,
plaintiff’s expert who is going to testify here, would
ever have thought for a scintilla of a moment that
this is a patient with an infection. None.483
As the Appellate Division observed, “This statement was
false.”484 The plaintiff ’s other emergency medicine expert was also
prepared to testify that the defendant deviated from the standard
of care.485
After opening statements, counsel for the plaintiff moved for
reconsideration of the order limiting the number of experts, but
the trial court refused to allow the second expert to testify. In
reversing, the appellate panel held that:
[T]he trial court erred in limiting expert witnesses to
only one per side for each relevant field of medicine,
in particular, on the crucial issue of deviation from
accepted standards of medical care. The court’s
pretrial ruling was a mistaken exercise of its
discretionary authority to control the presentation
of evidence at the trial. See N.J.R.E. 611(a) (“court
shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting
evidence”). Nothing in our rules of evidence, or
other laws or rules, gives a trial court authority to
balance the number of witnesses presented by each
482. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 159-62 (App. Div.
2013).
483. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 164 (App. Div.
2013).
484. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 164 (App. Div.
2013).
485. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 164 (App. Div.
2013).
side at the trial. Nor is the trial court authorized by
N.J.R.E. 403 or any other rule or law to bar crucial
evidence merely on the ground that it duplicates
another witness’s testimony.
….
We see no reason that expert testimony should be
treated wholly differently from factual testimony
with respect to vital opinions that go to the heart
of the disputed issues in the case. Especially in
a case such as this where the jury’s truth-finding
function required choosing between the opinions
of experts, the parties should have been permitted
to corroborate the testimony of their experts with
other experts who reached similar conclusions.486
The court explained that in a medical malpractice case, testimony
as to the standard of care
went to the heart of her case: whether defendant
deviated from accepted standards of care for an
emergency department physician. Although a
second expert would have taken more time at the
trial, it might have been time well-spent. In the
field of medicine, second opinions are often sought
to test the accuracy of a diagnosis or the benefits
and risks of proposed treatment. Surely it cannot
be said that additional expert testimony in a case
that involved complicated issues of emergency and
diagnostic medicine had such low probative value
as to be substantially outweighed by its partially
repetitive nature.487
The court added that New Jersey Rule of Evidence 403 does not
refer to “‘duplicative evidence’” but to “‘needless ... cumulative
evidence.’”488
We hold, however, that two expert witnesses on the
central issue of liability in a medical malpractice
486. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 165-66 (App. Div.
2013).
487. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 167-68 (App. Div.
2013).
488. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 168 (App. Div.
2013).
case do not per se reach the level of needless
cumulative evidence that substantially outweighs
its probative value. The trial court mistakenly
exercised its discretion in granting defendant’s
pretrial motion to limit expert witnesses to one on
each side on a central disputed issue in the case.
….
A trial judge must avoid infringing on the parties’
right to present their proofs through their chosen
witnesses, which is ‘an essential element in the
conduct of a trial.’ Cardell, Inc. v. Piscatelli, 277 N.J.
Super. 149, 155 (App. Div. 1994) (internal quotation
mark omitted); accord Peterson v. Peterson, 374
N.J. Super. 116, 125 (App. Div. 2005).489
The Requirements of the
Expert Report
The rules of discovery require the pretrial disclosure of all expert
opinions. An expert will generally be prohibited from testifying as
to opinions not contained in the expert’s report. Whether an expert
is testifying beyond the scope of the report has been the subject of
much discussion. A review of the cases reveals that the courts are
exceedingly reluctant to dismiss a case due to the inadequacy of an
expert’s report, or to restrict experts from explaining the opinions
stated in the report, even if the explanation exceeds the opinions
found within the “four corners” of the report.
Initially, it should be noted that there are no formal requirements
for the expert report, and certainly the report does not have to be
in the form of an affidavit.490 In Baldyga v. Oldman, the Appellate
489. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 168-69 (App. Div.
2013).
490. Baldyga v. Oldman, 261 N.J. Super. 259 (App. Div. 1993). In Baldyga v.
Oldman, 261
N.J. Super. 259 (App. Div. 1993), plaintiff alleged that the defendant
negligently prescribed
tetracycline, resulting in the discoloration of his permanent teeth. The
defendant moved
for summary judgment asserting that there was no proof that the defendant
had prescribed
tetracycline to the plaintiff. In response to the motion, plaintiff supplied
the report of an
expert which stated that, within a reasonable degree of dental probability,
plaintiff had been
prescribed tetracycline between the ages of three and six, which was during
the time period
that plaintiff was under defendant’s care. The trial court refused to consider
this expert
report because it was submitted after the deadline for discovery and was
not in “affidavit
or testimony form.” Baldyga v. Oldman, 261 N.J. Super. 259, 264 (App. Div.
1993). The
Division distinguished admissibility of an expert report that is not
in the form of a sworn affidavit from unsworn factual statements
from lay witnesses and unauthenticated documents.491 The court
noted that the expert report
did not contain lay witness factual statements, but
was instead expert opinion evidence submitted as
an addendum to the record. Discovery materials,
including answers to interrogatories, are not within
the parameters of R. 1:6-6, as is made clear by the
comment following the rule. Instead, R. 4:17-4
governs the form, service and time of answers
to a party’s interrogatory requests. R. 4:17-4(e)
specifically deals with expert or treating physician’s
reports, and provides that an exact copy of an
expert’s report must be annexed to the interrogatory.
There is no requirement under R. 4:17-4(e) that an
expert physician’s report must be submitted in the
form of affidavit or testimony.492
The court also held that it was an abuse of discretion to refuse
to consider the expert report, noting that a “trial is a search for the
truth” and that closing the doors of the courthouse to a litigant is
too heavy a price to pay for the submission of a late report.493
The reluctance to bar expert testimony due to deficiencies in
the report was again demonstrated in Hearon v. Burdette Tomlin
Memorial Hospital,494 in which the court ruled that failure to
specify a deviation from the medical standard to a degree of
medical probability was not fatal to the report’s admissibility. The
Appellate Division reversed a trial court ruling barring an expert’s
testimony and granting defendant summary judgment, noting
Appellate Division reversed, holding that there is no requirement that an
expert report must
be in the form of a sworn affidavit. Baldyga v. Oldman, 261 N.J. Super. 259,
265-66 (App.
Div. 1993).
491. Baldyga v. Oldman, 261 N.J. Super. 259, 265-66 (App. Div. 1993)
(distinguishing
Celino v. Gen. Accident Ins. Co., 211 N.J. Super. 538 (App. Div. 1986)).
492. Baldyga v. Oldman, 261 N.J. Super. 259, 265-66 (App. Div. 1993).
493. Baldyga v. Oldman, 261 N.J. Super. 259, 267 (App. Div. 1993) (quoting
Sholtis v. Am.
Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989), and citing Tyler v. N.J.
Auto. Full Ins., 228
N.J. Super. 463 (App. Div. 1988). But see Cornblatt v. Barow, 153 N.J. 218
(1998) (holding
that generally only an affidavit, and not a certification or report, satisfies
the Affidavit of
Merit Statute). See discussion of Affidavit of Merit in § 7-5, et seq.
494. Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98 (App. Div.
1986).
that the trial court had not reviewed the plaintiff’s expert’s report
and that a review of the report revealed that the expert did render
the opinion that there was a deviation from the standard of care.
Furthermore, the Appellate Division instructed:
[T]he report does not spell out a deviation of
any medical standard in legal terms to a degree
of medical probability. Nevertheless, this failure
to specify a deviation of medical standards in
the appropriate legal terms is not fatal to this
case. Legal standards are usually talismanic to a
practicing physician unfamiliar with legal nuances
and terminology. Undoubtedly, before his trial
testimony, plaintiff’s attorney would have apprised
[plaintiff’s expert] that the legal requirement of
causation must be established to a reasonable degree
of medical probability. So informed, [plaintiff’s
expert] could then respond more appropriately on
direct examination.495
The court instructed that where the language in an expert’s report
was subject to more than one interpretation, the trial court should
determine exactly what the expert means. Therefore,
the better procedure would have been first, for the
trial judge to examine the medical report and, if he
had any doubt as to the sufficiency of the proffered
proofs, he should then have questioned [plaintiff’s
expert] out of the presence of a jury before granting
a summary judgment.496
The court added in a final significant comment:
In complex cases such as a medical malpractice
action, reliance upon facts developed at discovery
as constituting all of the relevant facts may lead to
an inaccurate factual assessment. In depositions,
discovery may be limited to certain critical areas
which the deposing party may wish to develop and
establish. Where a party’s witness is being deposed,
495. Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98, 103 (App.
Div. 1986).
496. Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98, 103 (App.
Div. 1986).
the party is not required, and for strategic purposes
may not desire, to fill in any gaps submitted or
glossed over by the deposing party. Nor is a party
required to present all facts at the deposition.497
In Gaido v. Weiser,498 plaintiff contended that the defendant’s
expert was permitted to testify beyond the scope of his report.
The trial court allowed the attorney for the plaintiff to take the
deposition of the defendant’s expert, on the evening after he
testified at defendant’s expense, regarding the new issues. The
Appellate Division held that the trial court’s decision to adjourn
the trial and allow the defendant’s expert to be deposed was “a
sound and effective way to solve a problem of this nature.”499
The court reasoned that “the sins or faults of an errant attorney
should not be visited upon a client” and therefore courts hesitate
to “impose the sanction of testimonial exclusion where a litigant’s
attorney has failed to comply fully with the rules of discovery.”500
The court noted that since the doctor’s opinion was something
plaintiff’s counsel should have been prepared for, it was not an
abuse of discretion to allow the adjournment for the deposition
and expanded testimony.501 A similar holding is found in WhitleyWoodford v. Jones,502 where the court permitted an expert to testify
beyond the four corners of the expert’s report in “an explanatory
reaction to evidence.”503
When an expert report fails to specify the standard of care
violated or medical basis for a conclusion regarding causation,
the court may allow a party to supplement or amend the
report.504 The Appellate Division ruled summary judgment was
not appropriate in such circumstances in Kisselbach v. County
of Camden505 reversing the dismissal of a wrongful death claim
497. Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98, 104 (App.
Div. 1986).
498. Gaido v. Weiser, 227 N.J. Super. 175 (App. Div. 1988), aff’d, 115 N.J.
310 (1989).
499. Gaido v. Weiser, 227 N.J. Super. 175, 192 (App. Div. 1988), aff’d, 115
N.J. 310 (1989).
500. Gaido v. Weiser, 227 N.J. Super. 175, 192-93 (App. Div. 1988), aff’d, 115
N.J. 310
(1989) (citing Maurio v. Mereck Constr., 162 N.J. Super. 566, 570 (App. Div.
1978)).
501. Gaido v. Weiser, 227 N.J. Super. 175, 193 (App. Div. 1988), aff’d, 115
N.J. 310 (1989).
502. Whitley-Woodford v. Jones, 253 N.J. Super. 7 (App. Div. 1992).
503. Whitley-Woodford v. Jones, 253 N.J. Super. 7, 11 (App. Div. 1992).
504. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558 (App. Div. 1994).
505. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558 (App. Div. 1994).
based upon the trial court’s determination that plaintiff ’s expert
report constituted a net opinion. Plaintiff ’s expert, a former
hospital administrator, testified that the defendant’s deviations
from standards of nursing home care contributed to the
decedent’s deterioration and death. The trial court concluded
that the hospital administrator, not being a medical doctor, could
not establish causation. However, plaintiff had also supplied the
report of his father’s treating doctor, who stated that he concurred
with the conclusions of the hospital administrator that plaintiff ’s
father developed a medical condition as a result of mistreatment,
and that the condition led to the death of plaintiff ’s father. The
trial court concluded that the treating physician’s report was a
net opinion because it did not specify the standard of care which
was violated or the medical basis for the conclusion that the
mistreatment led to the death of plaintiff ’s father. The Appellate
Division reversed, concluding that:
Although the medical report is weak, the preferred
course is to deny summary judgment and permit
the matter to proceed, so that the expert’s opinion
can be fleshed out. Dismissal under R. 4:37-2(b)
may be granted at trial if necessary.506
Indeed, courts are reluctant to preclude expert testimony that goes
beyond a medical expert’s report if there is no attempt to mislead
and no surprise or prejudice will result if the testimony is admitted.507
In Congiusti v. Ingersoll-Rand Co, Inc.,508 the court showed extreme
reluctance to approve the preclusion of expert testimony when
plaintiffs contended that defendant’s experts testified far beyond the
content of the expert reports supplied before trial. The court noted
plaintiff’s claim was “only partially accurate because broad subject
areas were covered.”509 The court explained:
While the experts had not fully disclosed their
theories in their reports, had they been deposed
506. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558, 569 (App. Div. 1994)
(citing
Hearon v. Burdette Tomlin Mem’l Hosp., 213 N.J. Super. 98, 104 (App. Div.
1986)).
507. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-33 (App. Div.
1997).
508. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126 (App. Div. 1997).
509. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 131 (App. Div. 1997).
by plaintiffs, their depositions might have fully
revealed the bases for their eventual testimony.
….
In this case, we have read the testimony of
defendant’s experts, and we have examined their
reports. It does not appear that plaintiff’s attorneys
should have been surprised, except as they had
failed to depose the experts, and thus were unaware
of the details of the experts’ opinions.
.…
The deviation from these reports at trial
was sufficiently minimal that we see a lack of
prejudice to plaintiffs, especially as plaintiffs
chose not to depose the witnesses to flesh out
any questions they may have had concerning the
bases for or the scope of the opinions expressed
in the reports. We see no design to mislead, no
significant surprise to plaintiffs, and therefore
no prejudice as a result of this testimony. The
testimony is logically related to the information
contained in the reports.510
Therefore, any claim that a case should be dismissed prior to
trial due to deficiencies in the expert opinions should initially be
rejected by a trial court. Any questions regarding the sufficiency of
an expert’s report should be raised and resolved by pretrial motion,
so that the party has the chance to cure any deficiency in the report.
The courts have cautioned that pretrial motions or motions in limine
should not be used to attack the efficacy of an expert report.511
An expert may also be permitted to answer a hypothetical
question based upon a fact not contained in the expert’s report
when the fact is a “logical predicate” of the expert opinion.512
510. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-33 (App. Div.
1997).
511. Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988).
512. Velazquez v. Jiminez, 336 N.J. Super. 10, 46 (App. Div. 2000), aff’d, 172
N.J. 240 (2002)
(permitting an expert to answer a hypothetical question based upon a fact
not contained
in the expert’s report; the court reasoned that the additional fact was
merely a “‘logical
predicate’ of the expert’s opinion which is not foreclosed”). See also New
Jersey Court Rule
4:10-2(d)(1) and New Jersey Court Rule 4:17-4(e) regarding expert reports.
The Net Opinion Rule
An expert must explain all opinions on both liability and
causation issues. An inadequately explained or conclusory opinion
is a “net opinion” and is subject to be stricken by the court. One
of the first discussions of the net opinion rule is found in Parker v.
Goldstein,513 in which the court affirmed the dismissal of a case
because the plaintiff’s expert failed to explain how a delay in
performing a cesarean section on a pregnant woman caused or
contributed to a pulmonary embolism.514
Plaintiff’s expert testified that the defendant deviated in failing
to perform the cesarean section at the time of plaintiff’s admission
or soon thereafter and that this deviation led to the patient’s death
from the pulmonary embolism. However, the Appellate Division
noted that the expert had not explained how the delay contributed
to the formation of the embolism:
The patient died as a result of a pulmonary
embolism—generically, a blood clot in the blood
stream. What caused this condition to come into
being? Was it the so-called delay? If so, where is
the proof in this case of such connection? If it be
found at all, it must be in [plaintiff’s expert’s] naked
assertion that in the entire complex of the facts
as given to him, the course of medical conduct
pursued by the defendant ‘led eventually to her
death with pulmonary embolism.’ There was no
word of testimony from the witness to explain the
physiological reactions of the decedent to the alleged
delay, or of the anatomical effect of the delay on the
pulmonary structure of decedent. The opinion, thus,
was what is commonly described as a ‘net opinion.’515
513. Parker v. Goldstein, 78 N.J. Super. 472 (App. Div. 1963).
514. Parker v. Goldstein, 78 N.J. Super. 472 (App. Div. 1963). Plaintiff
alleged that his
wife died as a result of the defendant’s delay in performance of a cesarean
section. The
patient was admitted to the hospital at 6:30 p.m. The defendant examined
her at 7:30 p.m.
and recommended a cesarean section. The Appellate Division observed
that “the patient
withheld permission to perform the operation until 11:35 p.m. or
thereabouts, contrary to
the doctor’s advice.” Parker v. Goldstein, 78 N.J. Super. 472, 479 (App. Div.
1963). Shortly
before performance of the cesarean section, plaintiff’s wife suffered a
pulmonary embolism
and she died at 1:13 a.m. Parker v. Goldstein, 78 N.J. Super. 472, 479 (App.
Div. 1963).
515. Parker v. Goldstein, 78 N.J. Super. 472, 483 (App. Div. 1963).
The court concluded that the failure of plaintiff’s expert to
explain how the delay caused or contributed to the embolism
left “an irreparable void in plaintiff’s proof. Acceptable medical
opinion of causation supported by expert explanation was an
integral and indispensable part of plaintiff’s case.”516 Therefore, the
court affirmed the dismissal of the case.
Another example of an inadmissible net opinion is found in
Anderson v. Somberg.517 This case involved the trial after remand.518
In Anderson, the plaintiff’s expert attributed the decedent’s
premature death to the stress of a second operation to remove
a broken surgical instrument. However, the Appellate Division
concluded that the opinion that the patient’s death was proximately
caused by the surgeries was rendered by the expert “without any
proof thereof in the record or fact relating thereto within his
knowledge.”519 The court stated that it was “sheer conjecture” that
the breaking of a surgical instrument during an operation caused
the death of plaintiff’s decedent years later.
To have permitted a jury to determine on these
proofs, whether Anderson’s death from the
claimed myocardial infarction was causally
related to the surgeries performed a substantial
time prior thereto, would have improperly
authorized “the jury to reach an answer through
guess or speculation.” Germann v. Matriss, 55
N.J. 193, 209 (1970). The judge’s dismissal of the
wrongful death claim under these circumstances is
unassailable.520
The Supreme Court defined a net opinion in Buckelew v.
Grossbard,521 as one consisting merely of the expert’s “bare
conclusions, unsupported by factual evidence.”522 However, the
Court noted that such testimony could form the foundation for the
516. Parker v. Goldstein, 78 N.J. Super. 472, 484 (App. Div. 1963).
517. Anderson v. Somberg, 158 N.J. Super. 384 (App. Div. 1978).
518. Anderson v. Somberg, 67 N.J. 291 (1975), cert. denied, 423 U.S. 929 (1975).
See
discussion of Anderson v. Somberg in § 7-13.
519. Anderson v. Somberg, 158 N.J. Super. 384, 399 (App. Div. 1978).
520. Anderson v. Somberg, 158 N.J. Super. 384, 400 (App. Div. 1978).
521. Buckelew v. Grossbard, 87 N.J. 512 (1981).
522. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
application of the doctrine of res ipsa loquitur.523 Nevertheless, the
Court noted that the plaintiff’s expert cannot simply state that the
relationship between the injury and the deviation is a matter of
common knowledge in the medical community, but rather must
offer “evidential support, experiential or the like,” to prove that
the mishap would not have occurred but for the physician’s
negligence.524
The other cases that have discussed the net opinion rule generally
reach the same conclusions. For example, in Pelose v. Green,525 the
court found a net opinion because it concluded a plaintiff’s expert
merely assumed that since an assistant surgeon lacked sufficient
expertise with the procedure at issue, he must have caused the
injury. The court ruled that such reasoning was “no more than
speculation—speculation surrounded by expertise but, nonetheless,
speculation.”526
523. Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). (See discussion in § 712 regarding
res ipsa loquitur).
524. Buckelew v. Grossbard, 87 N.J. 512, 529 (1981). In Buckelew, plaintiff
alleged that
the defendant negligently lacerated her bladder during performance of a
laparotomy. The
defendant testified that he believed he was incising the peritoneum when in
fact he was
incising the bladder. Plaintiff’s expert testified that the defendant deviated
from medical
standards when “he failed to exercise the necessary care to avoid cutting
into the urinary
bladder.” Buckelew v. Grossbard, 87 N.J. 512, 520 (1981). Defendant’s expert
testified that
the defendant exercised meticulous care and testified that any surgeon who
has done these
operations has had such an experience. After the jury rendered a verdict for
plaintiff, the
trial court granted a judgment n.o.v., holding that plaintiff’s expert’s
opinion was net
opinion. The Appellate Division affirmed, but the Supreme Court reversed.
Buckelew v.
Grossbard, 87 N.J. 512, 521-23 (1981).
525. Pelose v. Green, 222 N.J. Super. 545 (App. Div. 1988).
526. Pelose v. Green, 222 N.J. Super. 545, 550 (App. Div. 1988). In Pelose,
plaintiff
alleged that the defendants negligently performed a cervical laminectomy.
Plaintiff was
left with quadriparesis, or weakness of the limbs, and plaintiff ’s expert
testified that the
quadriparesis resulted from trauma to the spinal cord during the operation.
Plaintiff ’s
expert testified that one of the two surgeons who performed the surgery
lacked “sufficient
expertise to perform a cervical laminectomy and deviated from acceptable
medical
standards by actively engaging in crucial aspects of the laminectomy.” Pelose
v. Green,
222 N.J. Super. 545, 548 (App. Div. 1988). Plai-ntiff ’s expert therefore
concluded that the
inexperienced surgeon’s negligence was a proximate cause of the plaintiff ’s
injury. The
trial court dismissed the complaint due to lack of evidence of causation.
The Appellate
Division affirmed, stating that there was no evidence that the damage was
caused by
the inexperienced assistant surgeon as opposed to the principal surgeon.
The court
also noted that the opinion of plaintiff ’s expert as to damages was
predicated on the
opinion that the trauma was caused by the inexperienced assistant surgeon.
The court
supported its holding with the concession by plaintiff ’s expert that the
damage could
have happened in the hands of an experienced neurosurgeon and could
have happened
when the principal surgeon was operating. Pelose v. Green, 222 N.J. Super.
545, 548-50
(App. Div. 1988).
However, in Bellardini v. Krikorian,527 the court held that where
the basis of an expert’s conclusion is explained and supported by
education or experience, the opinion is not a net opinion.528 In
Bellardini, plaintiff was prescribed medication which allegedly led
to birth defects in a subsequently born child and plaintiff’s medical
expert could not cite any specific medical literature establishing the
standard of care for providing women of child-bearing age with
prescription medications. The Appellate Division ruled the trial
court should not have barred the expert’s testimony for lack of
evidential support.
The court explained that expert testimony
is admissible where the witness has peculiar
knowledge or experience not common to the world
which renders his opinion an aid to the court or
jury in determining the question in issue.529
The court concluded that a doctor may express an opinion as to
accepted standards of medical care and furthermore, “the expert is
not required to produce a treatise to support his opinion.”530
When one portion of testimony may be considered net opinion,
the expert will not be completely barred if part of the testimony
is properly supported. In Pearson v. St. Paul,531 plaintiff’s child died
527. Bellardini v. Krikorian, 222 N.J. Super. 457 (App. Div. 1988).
528. Bellardini v. Krikorian, 222 N.J. Super. 457 (App. Div. 1988). In
Bellardini, plaintiff
alleged that he was born with numerous birth defects due to the
defendant’s negligent
failure to perform a pregnancy test prior to prescribing various prescription
medications to
his mother. Plaintiff’s expert stated in a report that the defendant deviated
from generally
accepted standards by failing to
take adequate steps to assure that plaintiff’s mother was not pregnant when
he
prescribed the drug or consider her possible pregnancy thereafter and
advise her
of the dangers of an adverse reaction from the drug.
Bellardini v. Krikorian, 222 N.J. Super. 457, 459 (App. Div. 1988).
529. Bellardini v. Krikorian, 222 N.J. Super. 457, 462-63 (App. Div. 1988).
530. Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988). In
reversing, the
Appellate Division instructed:
Obviously, the support for such expert opinion can be based on what the
witness
has learned from personal experience or from persons with adequate
training and
experience. . . .
Expert testimony may be furnished by a person whose knowledge, training
or
experience are deemed qualified to express their opinions on medical
subjects. . . .
The requirements for expert qualifications are in the disjunctive. The
requisite
knowledge can be based on either knowledge, training or experience.
Bellardini v. Krikorian, 222 N.J. Super. 457, 462-63 (App. Div. 1988).
531. Pearson v. St. Paul, 220 N.J. Super. 110 (App. Div. 1987).
after undergoing arthroscopic knee surgery. The procedure was
done under general anesthesia administered by a nurse anesthetist.
After the procedure, the child was brought to the recovery room,
where she went into cardiac arrest. She suffered severe brain
damage and died after being in a coma for five days. Plaintiff ’s
expert was an anesthesiologist who had been chairman of the
department of anesthesiology at Mt. Sinai Hospital and was chief
of anesthesiology at Upstate Medical Center. The court noted
that “his qualifications and credentials were impeccable.”532 When
asked whether he had an opinion as to what caused the death of the
child, the expert stated that the child was administered dosages that
were “large beyond normal standards.”533 The expert also rendered
the opinion that, given the dosage, inadequate precautions were
taken to avoid serious respiratory depression. The expert stated
that either the antidote to reverse the anesthesia should have been
given in the operative room instead of the recovery room or the
endotracheal tube should have been maintained until it was clear
that respiration was adequate. Finally, the expert also criticized
the failure to maintain the endotracheal tube since the anesthetic
may cause paralysis of the jaw muscles and the tongue may fall
backward, obstructing the airway.
On cross-examination, the expert confirmed that the dosages and
their timing were within acceptable medical standards. The trial
court therefore struck the testimony as a net opinion. However,
the Appellate Division reversed, holding that despite the issue
regarding the dosage, the expert testified that the defendant was
negligent regarding withdrawal of the oral tube and administration
of the drug to reverse the narcotic. The court explained:
We note that a net opinion has been defined as
the bare conclusions of an expert unsupported by
factual evidence. … In our view, it is patent that
[plaintiff’s expert’s] opinion in respect of [nurse]
St. Paul whether or not it would have ultimately
been accepted by the jury was not a ‘net opinion’,
but was rather a conclusion adequately based on
532. Pearson v. St. Paul, 220 N.J. Super. 110, 113 (App. Div. 1987).
533. Pearson v. St. Paul, 220 N.J. Super. 110, 114 (App. Div. 1987).
facts and expert assumptions permissibly and
reasonably drawn therefrom.534
An expert’s testimony is not a net opinion if based on observation
and examination of a patient or medical and other records. In
Baldyga v. Oldman,535 plaintiff brought a claim alleging that
the defendant negligently prescribed tetracycline resulting in
discoloration of his permanent teeth. Defendant moved for summary
judgment asserting that there was no proof that the defendant had
prescribed tetracycline to the plaintiff. In response to the motion,
plaintiff supplied the report of an expert which stated that within a
reasonable degree of dental certainty plaintiff had been prescribed
tetracycline between the ages of three and six, which was during
the time period that he was under defendant’s care. The Appellate
Division noted that the expert’s report was not net opinion because
it was based upon the expert’s “own observation and examination
of plaintiff” which revealed that plaintiff’s teeth exhibited
“characteristic banding” associated with tetracycline.536
Similarly, in Nguyen v. Tama,537 Appellate Division then rejected
arguments that an expert issued a net opinion because it found that
expert’s opinion was supported by the defendant’s office records,
the hospital records, the expert’s own experience, and by reference
to a well-known textbook.538
In Vitrano by Vitrano v. Schiffman,539 the Appellate Division ruled
an expert’s opinion was not a net opinion because it was based
upon the surgical report of the subsequent treating physician.540
The court explained:
534. Pearson v. St. Paul, 220 N.J. Super. 110, 116 (App. Div. 1987).
535. Baldyga v. Oldman, 261 N.J. Super. 259 (App. Div. 1993).
536. Baldyga v. Oldman, 261 N.J. Super. 259, 266 (App. Div. 1993).
537. Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997).
538. Nguyen v. Tama, 298 N.J. Super. 41, 42, 49 (App. Div. 1997). In Nguyen,
plaintiff
alleged that the defendant, an obstetrician, improperly managed her labor
and delivery and
specifically failed to treat preeclampsia. The jury rendered a verdict for the
plaintiff, and
the defendant appealed asserting that the opinion of one of plaintiff’s
experts was a net
opinion. The Appellate Division rejected the defendant’s arguments, noting
that the expert’s
opinion was supported by the defendant’s office records, the hospital
records, the expert’s
own experience, and by reference to a well-known textbook, Williams
Obstetrics. Nguyen v.
Tama, 298 N.J. Super. 41, 49 (App. Div. 1997).
539. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572 (App. Div. 1997).
540. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div.
1997). In
Vitrano, plaintiff alleged that several defendants failed to diagnose bilateral
undescended
testes. The plaintiff ’s examining doctor noted at birth that both of the
testes had
[Plaintiff’s expert’s] is not a net opinion because it
is based upon the facts contained in the surgical
report of [another doctor]. Further, the fact
that [plaintiff’s expert’s] opinion is contrary to
defendants’ medical records and to some extent the
testimony of plaintiff and his mother, who both
say plaintiff’s testes were examined during visits
to defendants, does not make it a net opinion.
A medical expert has the ability to opine that
the records he examined were incorrect provided
that the opinion is grounded in medical evidence
present in the record. Here, that is what occurred
and [plaintiff’s expert] should have been permitted
to testify.541
The court therefore reversed the summary judgment, stating that
since the expert would now be permitted to testify, the evidence
was not “so one-sided” that the defendants “must prevail as a
matter of law.”542
An expert can rely on his or her own experience and need not rely
upon a treatise to support the opinion. In Rosenberg v. Tavorath.543
the trial court dismissed plaintiff’s case, agreeing with defendant
that plaintiff’s expert failed to support his opinion regarding
the standard of care with a reference to medical literature or
case studies and failed to provide precise testimony regarding
appropriate chemotherapy dosage.544
descended. Plaintiff was later examined by a second doctor who also noted
that his testes
had descended. Nevertheless, plaintiff ’s expert testified that the defendants
were negligent
in failing to diagnose undescended testes. Vitrano by Vitrano v. Schiffman, 305
N.J. Super.
572, 576 (App. Div. 1997). The expert concluded that the defendants had
either failed
to examine the child or failed to note the abnormal condition. The trial
court granted
summary judgment, ruling that the opinion of plaintiff ’s expert was a net
opinion. The
Appellate Division reversed, holding that the expert’s opinion was not a
net opinion
because it was based upon the surgical report of the subsequent treating
physician which
had disclosed undescended testes. Vitrano by Vitrano v. Schiffman, 305 N.J.
Super. 572,
577 (App. Div. 1997).
541. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div.
1997).
542. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 578 (App. Div.
1997).
543. Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002).
544. Rosenberg v. Tavorath, 352 N.J. Super. 385, 393-94 (App. Div. 2002).
Plaintiff alleged
that the defendant, an oncologist, failed to properly monitor her husband’s
response to
chemotherapy, ultimately resulting in her husband’s death. The plaintiff’s
expert testified
at trial that the decedent had suffered an extremely toxic reaction to the
initial course of
chemotherapy, and that the defendant was negligent in failing to reduce the
dosage of the
In reversing, the Appellate Division acknowledged the fact that
plaintiff ’s expert did not cite or rely upon any treatises, articles, or
protocols in support of his opinion. However, the appellate panel
explained that an expert opinion may be based not only on medical
literature but also the expert’s training or experience: “Evidential
support for an expert opinion is not limited to treatises or any type
of documentary support, but may include what the witness has
learned from personal experience.”545 Finally, as to causation, the
court reiterated that “[a]n expert’s opinion need not be predicated
on medical certainty.”546 The court therefore remanded the case
for trial.
The Appellate Division deemed an expert to have rendered a net
opinion in C.W. v. Cooper Health System,547 In C.W., the plaintiffs
sued the Cooper Health System and numerous physicians,
alleging that defendants failed to inform C.W. that an HIV test
second course of chemotherapy. The plaintiff’s expert further testified that
the defendant’s
failure to reduce the dosage of the second course of chemotherapy had
caused the death of
the patient. The defendants moved for an involuntary dismissal, asserting
that the testimony
of plaintiff’s expert was inadequate because:
(1) he offered only his net opinion on the appropriate standard of care
unsupported
by reference to any medical literature or case studies; (2) he testified that
there was
no standard of care regarding dose modification, or, that it ranged from a 5
percent
to 25 percent modification and, therefore, his testimony was too imprecise
and
lacking in parameters to assist the jury; and (3) his testimony on proximate
cause
was lacking because he did not supply ‘some percent . . . in reasonable
medical
probabilities’ demonstrating that a dose reduction would have influenced
the
outcome.
Rosenberg v. Tavorath, 352 N.J. Super. 385, 393-94 (App. Div. 2002). The trial
court
dismissed the case, concluding that the plaintiff ’s expert did not establish
the standard of
care or that the alleged deviation was the proximate cause of the death of
the plaintiff ’s
decedent.
545. Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citing
Bellardini v.
Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)).
546. Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citing
Greene v.
Mem’l Hosp. of Burlington Cnty., 304 N.J. Super. 416, 420 (App. Div. 1997)).
The Appellate
Division rejected the assertion that the expert rendered a net opinion. The
court explained
that plaintiff’s expert provided
adequate, particularized testimony sufficient to establish a standard of care,
a
deviation from that standard, and a causal link between that deviation and
the
injury. He had personally administered the chemotherapy drugs in question
numerous times over a twenty-year period. He studied and trained in
oncology for
nearly a decade before becoming board certified, and he served as chief of
oncology
at two hospitals. He was certainly familiar with the subject of his testimony
and he
repeatedly stated that the majority of oncologists would concur with his
opinion
regarding dose modification.
Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002).
547. C.W. v. Cooper Health Sys., 388 N.J. Super. 42 (App. Div. 2006).
ordered while in the hospital was positive. The plaintiffs asserted
that C.W. was not informed of the need to seek treatment, and
to take measures to prevent transmission of the virus to his wife
and child.
In August 1994, C.W. was admitted into Cooper Hospital.
Shortly after C.W.’s admission to the hospital, a resident ordered
an HIV test. Three days after the administration of the HIV test,
C.W. was discharged from the hospital with a diagnosis of “toxic
encephalopathy from marijuana use.”548 During the period in
question, Cooper Hospital did not perform HIV tests for admitted
patients, but rather “the pathology department’s central receiving
laboratory (“CRL”) sent test samples to outside laboratories and
thereafter was responsible for receiving the test result reports.”
Dr. Catalano, the supervisor of the pathology department, testified
that all test results from outside laboratories would be sent to his
attention, and the patient’s treating physician would contact the
CRL for the test results. The court noted:
in order to maintain the confidentiality of HIV test
results, CRL staff did not send doctors ordering
the test copies of HIV reports, nor log the results
into any of Cooper Hospital’s computer systems.
The established procedure required CRL staff
to record the HIV test results in a notebook
maintained exclusively for this purpose.549
C.W.’s HIV test was performed by SmithKline Beecham clinical
laboratories which reported, in a report marked to Dr. Catalano’s
attention, that C.W. had tested positive for HIV. However, neither
of C.W.’s doctors, Dr. Sherman nor Dr. Gerber, was notified
that C.W.’s HIV test was positive. Dr. Catalano asserted that
the attending physicians, Dr. Sherman and Dr. Gerber, were
responsible for informing the patient of the results of the HIV test.
Dr. Sherman testified that if he had been advised of the positive
HIV test he would have contacted the patient or the patient’s
personal physician.
In the fall 1994, E.Y. and C.W. entered into a sexual relationship
and on July 18, 1995, their daughter J.W. was born. In July 2000,
548. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 52 (App. Div. 2006).
549. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 52-53 (App. Div. 2006).
C.W. was diagnosed with AIDS. Shortly thereafter, E.Y. also tested
positive for HIV.
One of the plaintiff’s experts opined that Dr. Catalano was
negligent because the
‘standard practice of laboratory medicine’
requires a medical lab to ‘insure that all significant
laboratory results reach the eyes of the attending
physicians and that patients with significant disease
processes diagnosed definitively by laboratory
modalities are promptly identified and brought to
treatment.’550
This expert also concluded that
Dr. Catalano and the CRL staff, all shared
responsibility to have in place reporting modalities
that will deliver laboratory testing results to
the attending physicians after the patient is
discharged.551
This expert based his opinions upon
the regulations of the Department of Health; the
laws of the state of NJ; the regulations of the Joint
Commission on Accreditation Hospitals [sic];
and the regulations of the College of American
Pathologists.552
Finally, this expert testified that since
‘[t]he physician is the captain of the ship in terms
of the treatment of that patient,’ he or she remains
responsible, as ‘the ultimate caregiver,’ for the
proper performance of any delegated task.553
Nevertheless, the trial court dismissed all claims against
Dr. Catalano, holding that the plaintiff ’s expert had rendered a
net opinion as to this doctor. The Appellate Division affirmed the
trial court’s conclusion that the plaintiff ’s expert had rendered
a net opinion as to Dr. Catalano. The court accepted the fact
550. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 56 (App. Div. 2006).
551. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 56 (App. Div. 2006).
552. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 56 (App. Div. 2006).
553. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57 (App. Div. 2006).
that Dr. Catalano could not demonstrate that C.W.’s treating
physicians were advised of the positive HIV test results. The
court first held that the reporting provisions of N.J.A.C. 8:57-2.2,
which mandates reporting the diagnosis of HIV directly to the
Department of Health and Senior Services on forms supplied by
the department, were “not relevant to determining Dr. Catalano’s
duty of care as a director of Cooper Hospital’s pathology
department [because] Dr. Catalano was not one of C.W.’s
‘attending’ physicians.”554 The court also held that the opinions of
the plaintiff ’s experts as to Dr. Catalano were inadmissible net
opinions. The court stated:
Experts may opine on the basis of their ‘knowledge,
skill, experience, training, or education,’ N.J.R.E.
702, but they may not give a ‘net opinion,’ which is
an opinion that is unsupported by factual evidence
and is thus inadmissible. In Re Yaccarino, 117 N.J.
175, 196 (1989); Buckelew v. Grossbard, 87 N.J. 512,
524 (1981).
An expert must give ‘the why and wherefore of
his expert opinion, not just a mere conclusion.’
Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540
(App. Div.), certif. denied, 145 N.J. 374 (1996).
Experts in negligence cases must establish the
actual existence of a standard of care, and may
not simply declare their personal preferences or
the conduct they wish to encourage as being the
standard. Fernandez v. Baruch, 52 N.J. 127, 131
(1968); Taylor v. Delosso, 319 N.J. Super. 174,
179-80 (App. Div. 1999); Crespo v. McCartin, 244
N.J. Super. 413, 422-23 (App. Div. 1990).
Here, the trial court correctly found that
Dr. Shane’s report amounted to nothing more than
a net opinion …
Dr. Shane declared the practices of the two
laboratories where he had worked to represent
‘[T]he standard practice of laboratory medicine,’
554. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 63 (App. Div. 2006).
with no indication of how and why those
laboratories developed their practices. See Taylor,
supra, 319 N.J. Super. at 179-80 (unexplained
statement that ‘accepted practice’ required
particular actions was merely expert’s ‘personal’
standard and thus ‘equivalent to a net opinion’);
accord Kaplan v. Skoloff, 339 N.J. Super. 97, 103
(App. Div. 2001). He also failed to give a basis for
making a hospital’s pathology department or its
supervisor separately liable from the hospital for
the same negligent acts.555
The Supreme Court explained why an expert’s opinion was not
a net opinion in Creanga v. Jardal,556 where the plaintiff claimed
that she sustained injuries in an automobile accident, causing
premature labor and the death of one of her twins. The plaintiff’s
treating obstetrician opined that the automobile accident was the
proximate cause of the miscarriage. The opinion was based upon
the expert’s treatment of the plaintiff before, during, and after the
delivery, the plaintiff’s medical records and the elimination of other
causes of the miscarriage. The trial court dismissed the complaint,
concluding that the plaintiff’s expert offered a net opinion, and the
Appellate Division affirmed. The Supreme Court reversed, saying
that “an expert opinion derived from a differential diagnosis is
admissible under the New Jersey rules of evidence.”557 The Court
explained:
[B]ecause of the widespread acceptance of
differential diagnosis in the medical community,
the recognition of the technique in state and federal
courts, and its compatibility with our rules of
evidence in prior case law, we conclude that a trial
court may admit an expert’s differential diagnosis
into evidence.558
The Court observed that the plaintiff’s expert had in fact specified
the basis for his conclusion. The expert stated the trauma of the
555. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 56 (App. Div. 2006).
556. Creanga v. Jardal, 185 N.J. 345 (2005).
557. Creanga v. Jardal, 185 N.J. 345, 349 (2005).
558. Creanga v. Jardal, 185 N.J. 345, 357 (2005).
accident initiated the events leading to the miscarriage. The expert
had considered and rejected alternative causes of the miscarriage.
The expert considered the temporal relationship between the
accident and the miscarriage and supported his conclusion with
reference to his pre-accident treatment records, the hospital
records, and his post treatment records.
Accordingly, Dr. Zarghami not only provided his
conclusion that the plaintiff’s premature labor was
caused by the automobile accident, but he also gave
the ‘why and wherefore’ for that conclusion.559
The Court therefore reversed and remanded for trial.
The consequences of having an expert’s opinion stricken as a net
opinion may be the dismissal of a complaint or the direction of a
verdict. This point was made in a product liability case, Johnson v.
Salem Corp.,560 where the Court stated:
There are, however, limits to the permissible
inferences that may be extracted from experts’
testimony. ‘The weight to which an expert opinion
is entitled can rise no higher than the facts and
reasoning upon which that opinion is predicated.’ . . .
Here, the testimony of defendants’ expert was
infirm in both its factual foundation and inherent
reasoning. His express belief that the scrap baling
machine was reasonably safe was not adequately
supported by sufficient underlying facts. It
amounted to no more than an inadmissible ‘net
opinion,’ constituting the ‘expert’s bare conclusions,
unsupported by factual evidence.’561
After the Court held that the defendants’ expert’s testimony
was a net opinion and should be stricken, the Court observed
that the expert testimony submitted by the plaintiff was then
uncontradicted. The Supreme Court instructed that in such cases a
trial judge should not hesitate to enter summary judgment or grant
559. Creanga v. Jardal, 185 N.J. 345, 362 (2005).
560. Johnson v. Salem Corp., 97 N.J. 78 (1984).
561. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).
a directed verdict in favor of the party offering the uncontradicted
and reliable expert opinion.
‘[W]here the uncontradicted testimony of a
witness, interested or otherwise, is unaffected by
any conflicting inferences to be drawn from it and
is not improbable, extraordinary or surprising in its
nature, or there is no other ground for hesitating to
accept as the truth, there is no reason for denying
the verdict dictated by such evidence.’562
In Hemmen v. Atlantic City Medical Center,563 plaintiff was
given an intramuscular injection in the buttock, and experienced
sciatic nerve damage shortly after the injection. Plaintiff’s expert,
a neurologist, rendered the opinion that the drug was administered
too close to the sciatic nerve.564 The defendant moved to bar the
opinion as a net opinion. In rejecting the expert’s opinion and
dismissing the case, the trial court stated:
I recognized that the expert may have been reporting
that the medical community understands that of
the cases of drug induced sciatic nerve damage,
negligence is the most frequent cause. Such a report,
however, must rest upon the expert’s experience or
upon textual support. … In the absence of such
a basis, the opinion of the relative frequency of
negligent and non-negligent caused damage would
be an inadmissible net opinion, bereft of any
factual underpinning. … Accordingly, I permitted
the expert to amend his report to indicate the basis
for his contention that the medical profession
recognizes the greater frequency of negligence as
a cause of sciatic nerve injury. He has been unable
to do so and I conclude that no such evidence is
available.565
562. Johnson v. Salem Corp., 97 N.J. 78, 93 (1984).
563. Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 274 (Law Div. 1999), aff’d
o.b., 334
N.J. Super. 160 (App. Div. 2000).
564. Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 274, 277 (Law Div.
1999), aff’d o.b.,
334 N.J. Super. 160 (App. Div. 2000).
565. Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 274, 280-81 (Law Div.
1999), aff’d o.b.,
334 N.J. Super. 160 (App. Div. 2000) (citations omitted).
The trial court therefore dismissed the case and the Appellate
Division affirmed.566
The Common Knowledge Doctrine
Doctrine Established in Cases of Foreign
Objects Left Behind in Surgery
The common knowledge doctrine allows a jury to establish the
standard of care without expert testimony. The earliest cases to
recognize the common knowledge doctrine, although sometimes
under the rubric of the res ipsa doctrine, involve foreign objects
inadvertently left in the body after surgery. In Becker v. Eisenstodt,567
the court blended the common knowledge doctrine with the res ipsa
doctrine when it spoke of situations “which speak for themselves
without the need for any expert testimony,” i.e.,
a sponge left inside a patient’s abdomen, the
removal of or injury to an inappropriate part of
the anatomy, dropping a tube down the windpipe,
inflicting a serious burn or removing a wrong
tooth.568
Similarly, in Martin v. Perth Amboy General Hospital,569 a
laparotomy pad was left in plaintiff’s body during an operation.
At trial, a jury determined that the surgeon and two of three
nurses were negligent. The physician argued that the trial court
erroneously applied the doctrine of res ipsa loquitur. The Appellate
Division disagreed, stating:
Foreign object malpractice cases form a unique
class, presenting considerations different from those
566. Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 160 (App. Div. 2000); see
also Kaplan v.
Skoloff & Wolfe, 339 N.J. Super. 97 (App. Div. 2001) (a legal malpractice
case where the trial
court granted the defendant’s motion for summary judgment, concluding
that the plaintiff’s
expert had rendered a net opinion, relying on Buckelew v. Grossbard, 87 N.J.
512 (1981),
and Taylor v. DeLosso, 319 N.J. Super. 174 (App. Div. 1999)). The Kaplan
court explained:
“Plaintiff’s expert offered no evidential support establishing the existence
of a standard of
care, other than standards that were apparently personal to himself.” Kaplan
v. Skoloff &
Wolfe, 339 N.J. Super. 97, 103 (App. Div. 2001).
567. Becker v. Eisenstodt, 60 N.J. Super. 240 (App. Div. 1960).
568. Becker v. Eisenstodt, 60 N.J. Super. 240, 246 (App. Div. 1960).
569. Martin v. Perth Amboy Gen. Hosp., 104 N.J. Super. 335 (App. Div. 1969).
involved in other kinds of medical malpractice
actions.
….
It cannot be gainsaid that among the duties
owed by an operating surgeon to his patient is the
‘duty of removing all foreign substances from the
surgical wound before closing it’ and that ‘a surgeon
undertaking to perform an operation requiring
the placement of sponges in the incision does not
complete his undertaking until the sponges are
properly removed.’570
The same conclusion is found in Tramutola v. Bortone,571 where
plaintiff discovered that a needle had been left in her chest during
surgery. The Court noted with minimal discussion that the surgeon
was liable as a matter of law.572 However, in Wagner v. Deborah
Heart and Lung Center,573 a piece of a needle broke in plaintiff’s
sternum during cardiac bypass surgery. The surgeon decided to
leave the tip of the needle in the sternum as it was inert and would
cause plaintiff no harm. Plaintiff did not supply an expert report
and relied upon the doctrine of res ipsa loquitur. The defendant’s
expert testified that the defendant did not deviate from the accepted
standard of care by deciding to leave the tip of the needle in the
sternum. Defendant’s expert explained that the risks of attempting
to find and remove the needle tip at the time of the initial surgery
outweighed the benefits associated with the removal because the
needle was made of stainless steel like other items implanted inside
bone. Based on this evidence, the court held that the doctrine of res
ipsa loquitur does not apply and that plaintiff’s reliance on cases
where a sponge or foreign object was inadvertently left in a patient
was misplaced. The court explained:
But here, we are not dealing with a case where
the surgeon inadvertently left a foreign object
in the patient. To the contrary, Dr. Fernandez
570. Martin v. Perth Amboy Gen. Hosp., 104 N.J. Super. 335, 340-41 (App.
Div. 1969).
571. Tramutola v. Bortone, 63 N.J. 9 (1973).
572. Tramutola v. Bortone, 63 N.J. 9, 15 (1973).
573. Wagner v. Deborah Heart & Lung Ctr., 247 N.J. Super. 72 (App. Div.
1991).
intentionally left the awl needle tip imbedded in the
sternum because it was his medical judgment that
the risks were too high to remove it at that time.574
Cases in Which Common Knowledge Found
Generally
An early application of the common knowledge doctrine in a
case not involving a foreign object is found in Steinke v. Bell.575 In
Steinke, plaintiff sued a dentist who, while removing plaintiff’s left
second molar, also extracted plaintiff’s upper right lateral incisor.
The defendant appealed a judgment against him and argued that
plaintiff could not prevail without expert testimony. The Appellate
Division held that ordinarily the applicable medical standard and
deviation therefrom must be established by expert testimony, but
that this was an appropriate case for the application of the common
knowledge doctrine since:
We think laymen, looking at this case in the light of
their common knowledge and experience, can say
that a dentist engaged to remove a lower left molar
is not acting with the care and skill normal to the
average member of the profession if, in so doing,
he extracts or causes to come out an upper right
lateral incisor. Expert testimony therefore was not
necessary under the circumstances of this case.576
Similarly, the use of a caustic instead of an anesthetic is
something that is within the common knowledge of the jury. In
574. Wagner v. Deborah Heart & Lung Ctr., 247 N.J. Super. 72, 78 (App. Div.
1991). The
facts of Wagner are to be distinguished from Anderson v. Somberg, discussed
in § 7-13.
575. Steinke v. Bell, 32 N.J. Super. 67 (App. Div. 1954).
576. Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954). The National
Quality Forum has
promulgated a list of 29 serious reportable events. Some of these items are
relevant to the
common knowledge doctrine and others may be relevant to res ipsa
loquitor. See National
Quality Forum, Serious Reportable Events (Oct. 2008); see
http://www.qualityforum.org/
Publications/2008/10/Serious_Reportable_Events.aspx
The National Quality Forum is a not-for-profit membership organization
created in
1999 to develop and implement a national strategy for health care quality
measurement
and reporting. The NQF has created the Consensus Standards
Maintenance Committee
on Serious Reportable Events to review the list and recommend additions
or changes for
Members to consider so that the set remains current and appropriate. See,
http://www
.qualityforum.org/Topics/SREs/Serious_Reportable_Events.aspx
Becker v. Eisenstodt,577 plaintiff alleged that the defendant inserted
a pledget that was supposed to contain a ten percent solution of
cocaine in her nostril as part of a post-plastic surgery regimen.
When plaintiff complained that the solution was causing pain, the
physician allegedly said “Don’t be a baby; I have other people to
take care of.”578 Plaintiff sustained a severe burn and was left with
a scar that was described as appearing to be a harelip. Counsel for
plaintiff called a subsequent treating physician, who had examined
the plaintiff two days after the incident, and who testified that the
plaintiff had sustained a burn injury due to a caustic substance.
Plaintiff’s subsequent treating physician and the defendant’s expert
both testified that a ten percent solution of cocaine could not have
caused this burn. Counsel for plaintiff even had the subsequent
treating physician insert a pledget
‘well saturated with ten percent solution of cocaine,
into Arlene’s nose in the presence of the jury. …
The pledget was allowed to remain in her nose for
at least ten minutes. Arlene testified that the only
sensation she experienced was a soothing one.’579
Plaintiff’s subsequent treating doctor concluded that plaintiff
sustained a burn from an undetermined source but that the ten
percent solution could not have caused the burn injury. Nevertheless,
the trial court granted a motion to dismiss, concluding that since
the defendant’s uncontradicted testimony was that he used a ten
percent cocaine solution and since it was demonstrated that this
solution was harmless, plaintiff had failed to sustain her burden
of proof. In reversing, the Appellate Division concluded that
although plaintiff’s medical experts did not establish the standard
of care, such testimony was not necessary because the use of a
caustic, instead of an anesthetic, “is the type of negligence which
lay jurors can appreciate without the testimony of medical experts
to describe the applicable standard of care.”580 The court held that
the evidence created an issue of fact as to whether the anesthetic
or caustic was used, and if in fact the jury concluded a caustic was
577. Becker v. Eisenstodt, 60 N.J. Super. 240 (App. Div. 1960).
578. Becker v. Eisenstodt, 60 N.J. Super. 240, 243 (App. Div. 1960).
579. Becker v. Eisenstodt, 60 N.J. Super. 240, 244 (App. Div. 1960).
580. Becker v. Eisenstodt, 60 N.J. Super. 240, 246 (App. Div. 1960).
used, plaintiff did not need to provide medical expert testimony
that use of the caustic constituted negligence.581
Similarly, in Terhune v. Margaret Hague Maternity Hospital,582
plaintiff alleged that she was burned as a result of the improper
administration of an anesthetic during childbirth. Plaintiff’s
counsel stated during his opening that the plaintiff was unconscious
during the delivery and when she awoke she had been burned in
the face. Counsel for plaintiff further stated in his opening that he
could not prove what had happened but that obviously something
improper had happened. The trial court dismissed the case at the
conclusion of the plaintiff’s opening. In reversing, the Appellate
Division stated:
If the apparently abnormal effect of the anesthesia
on Mrs. Terhune’s face was, in fact, a species of
burning, as the hospital’s medical director is
purported to have admitted to her, it is possible
(whether or not likely) that when all the plaintiff’s
proofs are in it will appear that a determination
could be made that this was so obviously an
untoward consequence of careful anesthesia that
a lay jury should be allowed to infer negligence by
the anesthetist without expert testimony.583
Although the court spoke in terms of the doctrine of res ipsa,
the absence of the need for expert testimony reveals that it is really
the common knowledge doctrine that was applied.
The common knowledge doctrine was explored by the Supreme
Court in Sanzari v. Rosenfeld,584 In Sanzari, plaintiff alleged that
the defendant dentist had administered an anesthetic solution
which contained Xylocaine with Epinephrine to his wife without
taking a proper medical history and therefore not learning that
his wife suffered from high blood pressure. The patient suffered
a cerebral hemorrhage as a result of the anesthetic, causing her
death three days later. Significantly, the defendant conceded that
581. Becker v. Eisenstodt, 60 N.J. Super. 240, 246-47 (App. Div. 1960).
582. Terhune v. Margaret Hague Maternity Hosp., 63 N.J. Super. 106 (App. Div.
1960).
583. Terhune v. Margaret Hague Maternity Hosp., 63 N.J. Super. 106, 115 (App.
Div.
1960).
584. Sanzari v. Rosenfeld, 34 N.J. 128 (1961).
he was unaware the patient had high blood pressure and that if he
had known she had high blood pressure he would have consulted
with her physician before administering the Epinephrine. The
Supreme Court noted that the brochure which accompanied the
anesthetic stated that the Epinephrine was a vasoconstricting drug,
or one which compresses the blood vessels in order to enhance the
effect of the anesthetic. The Court also noted that the effect of
the administration of Epinephrine is to increase blood pressure
and that Epinephrine is contraindicated in cases where the patient
suffers from high blood pressure. Plaintiff argued that the doctrine
of res ipsa loquitur was applicable because in the absence of
negligence the routine filling of a tooth does not result in death.
The Court rejected this argument, stating:
It would make every untoward result of a dental
or medical operation or treatment a res ipsa case.
There are a variety of reasons why a patient may
die while being operated on by a dentist—none
of which may be related to the dentist’s failure to
exercise proper skill and care.585
Nevertheless, despite the fact that the doctrine of res ipsa loquitur
was deemed not applicable, the Court explained that the ordinary
jury could, after considering the package insert and the defendant’s
admission, reach the conclusion that the defendant was negligent,
and thus the doctrine of common knowledge eliminated the need
for expert testimony to establish the standard of care:
Ordinarily, the common knowledge doctrine is
applied in a malpractice case after the plaintiff
proves his injury and a causally related act or
omission by the defendant. The effect of applying
this doctrine is to allow the jury to supply the
applicable standard of care and thus to obviate
the necessity for expert testimony relative thereto.
In other words, application of the doctrine
transforms the case into an ordinary negligence
case where, as mentioned above, the jury, from its
fund of common knowledge, assays the feasibility
585. Sanzari v. Rosenfeld, 34 N.J. 128, 141 (1961).
of possible precautions which the defendant might
have taken to avoid injury to the plaintiff. The basic
postulate for application of the doctrine therefore
is that the issue of negligence is not related to
technical matters peculiarly within the knowledge
of medical or dental practitioners.586
The Court then explained why the common knowledge doctrine
should have been applied in Sanzari:
We believe that the doctrine of common
knowledge combined with the manufacturer’s
brochure admitted in evidence was sufficient
to avoid a dismissal, especially in the light of
defendant’s testimony that he was unaware
that the drug was contraindicated for patients
suffering from hypertension. The brochure stated
that Epinephrine is administered with Xylocaine
to prolong the anesthetic effect of the latter
drug; that to achieve greater constriction of the
blood vessels (haemostasis) the concentration
of Epinephrine should be increased; and that
in cases where vasopressor drugs (Epinephrine)
are contraindicated (dangerous) Xylocaine can
be used alone. From this evidence the jury could
reasonably conclude that defendant knew or should
have known that it was dangerous to administer
Epinephrine to a hypertensive patient. We believe
that it is within the common knowledge of laymen
that a reasonable man, including a dentist, who
knows a drug is potentially harmful to a certain
type of patient should take adequate precaution
before administering the drug or deciding whether
to administer it.587
The common knowledge doctrine was applied to a surgical
mishap in Jones v. Stess,588 where plaintiff, a diabetic, alleged that
586. Sanzari v. Rosenfeld, 34 N.J. 128, 141 (1961).
587. Sanzari v. Rosenfeld, 34 N.J. 128, 143 (1961). See also the discussion in §
7-17,
regarding the admissibility of the package insert.)
588. Jones v. Stess, 111 N.J. Super. 283 (App. Div. 1970).
the defendant, a podiatrist, negligently cut her toe while clipping
toenails. The cut became infected and the infection spread to
her bones, resulting in four operations and an above the knee
amputation. Plaintiff’s personal physician testified: “Great care
must be used in taking care of these areas because any type of
trauma can precipitate an infection in the toe.”589 At the end of
plaintiff’s proofs, the court granted the defendant’s motion for an
involuntary dismissal because plaintiff had not provided expert
testimony as to the standard of care and deviation.590 The Appellate
Division found the testimony of plaintiff’s physician sufficient
to trigger application of the common knowledge doctrine, and
reversed, stating:
The medical testimony was adequate to sustain
the finding that plaintiff suffered the amputation
of a substantial portion of her left leg by reason
of an infection which she sustained through the
breaking of her skin by defendant on the day in
question. Defendant knew plaintiff was diabetic
and acknowledged the need for extra care in
working on the feet of diabetics. The issue of his
responsibility in tort for her condition did not
depend on whether the method utilized by him was
correct or scientific, but whether his unintentional
wounding of her was occasioned by the lack of
reasonable care on his part.591
The common knowledge doctrine was applied to the failure to
monitor a woman who was in labor in Friel v. Vineland Obstetrical
and Gynecological Professional Association.592 In Friel, plaintiff,
while in her thirty-first week of gestation, noticed some vaginal
bleeding and called the defendant doctors who had treated her
throughout the course of her pregnancy. The defendants advised
the plaintiff to take some aspirin and “a shot of whiskey.”593 The
589. Jones v. Stess, 111 N.J. Super. 283, 286 (App. Div. 1970).
590. Jones v. Stess, 111 N.J. Super. 283, 286 (App. Div. 1970).
591. Jones v. Stess, 111 N.J. Super. 283, 289-90 (App. Div. 1970).
592. Friel v. Vineland Obstetrical & Gynecological Prof’l Ass’n, 166 N.J. Super.
579 (Law
Div. 1979).
593. Friel v. Vineland Obstetrical & Gynecological Prof’l Ass’n, 166 N.J. Super.
579, 582
(Law Div. 1979).
plaintiff continued to be followed by the defendants who finally
admitted the plaintiff to the hospital after ten days of continuous
bleeding. While in the hospital, the plaintiff was left unattended
and the infant plaintiff was born weighing three pounds, six
ounces. The court denied the motion by the defendant hospital for
summary judgment, because:
However, insofar as plaintiffs allege an utter lack
of attendance, particularly at the time the baby was
delivered, the question of malpractice in that regard
would appear to be within the provence of the jury
of laymen, depending on the proofs submitted.
‘There are basic aspects of child birth procedure
within the common knowledge of the laity.’ Lewis v.
Read, 80 N.J. Super. 148, 170 (App. Div. 1963),
certif. granted 41 N.J. 121 (1963). Attendance of
a patient in labor at or near the moment of giving
birth would seem to be an aspect particularly
within that knowledge.594
Another example of the application of the common knowledge
doctrine is found in Tierney v. St. Michael’s Medical Center.595 In
Tierney, plaintiff’s infant crawled out of a crib while hospitalized
at the defendant hospital. The child sustained a fractured skull as a
result of falling from the crib. The court instructed the jury that
they could infer that the accident was caused by
the defendant’s negligence if they find that the
accident took place under circumstances which
would suggest that in the ordinary course of events
it would not have happened without the lack of
due care and that the infant was under the exclusive
control and care of the defendants.596
The Appellate Division affirmed a verdict for the plaintiff, noting
that the doctrine creates a presumption that the accident would
not have occurred in the absence of negligence and is “available
to a plaintiff if it is more probable than not that the defendant’s
594. Friel v. Vineland Obstetrical & Gynecological Prof’l Ass’n, 166 N.J. Super.
579, 584
(Law Div. 1979).
595. Tierney v. St. Michael’s Med. Ctr., 214 N.J. Super. 27 (App. Div. 1986).
596. Tierney v. St. Michael’s Med. Ctr., 214 N.J. Super. 27, 30 (App. Div.
1986).
negligence was a proximate cause of the mishap.”597 The court held
that the doctrine should be applied here since the case involved a
small infant placed in a crib and under the care of the defendants.
This logic would apply not only to infants, but also to the aged
and those otherwise unable to care for themselves.598 The common
knowledge doctrine was applied to a fall in a hospital in Nowacki v.
Community Medical Center,599 where plaintiff alleged that she
fell while attempting to lift herself onto a treatment table. The
defendants appealed a verdict for the plaintiff, arguing that plaintiff
presented no testimony as to the standard of care. In rejecting this
argument, the court noted that the evidence revealed the hospital
knew that plaintiff was suffering from bone cancer, needed a cane
with which to walk, and came for treatment in a wheelchair. The
Appellate Division ruled that expert testimony was not necessary
in such a scenario:
Plaintiff sought damages because of a fall in the
hospital attributable to the hospital’s negligence.
The complaint alleged negligence because the
hospital employees failed to secure the stool
or table with a handle bar or grip bar, failed to
assist plaintiff ‘in climbing on the table,’ failed to
maintain the radiation room in a reasonably safe
condition, and failed to attend to ‘plaintiff’s special
needs.’ We agree with the trial judge that this was
not a medical malpractice action requiring expert
testimony on the standard of care. See Tierney
by Tierney v. St. Michael’s Medical Center, 214
N.J. Super. 27, 31, 518 A.2d 242 (App. Div.1986),
certif. denied, 107 N.J. 114, 526 A.2d 184 (1987),
(applying res ipsa loquitur in a case involving a fall
from a hospital crib). The majority view is that
jurors are competent to assess simple negligence
occurring in a hospital without expert testimony
597. Tierney v. St. Michael’s Med. Ctr., 214 N.J. Super. 27, 30 (App. Div.
1986).
598. See, e.g., Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335 (1994)
(discussing the
relationship between the doctrine of comparative fault and patients who
are unable to protect
themselves from injury because of “age, substance abuse, or mental
derangement.”).
599. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995).
to establish the standard of ordinary care, as in any
other negligence case.600
Similarly, in Winters v. Jersey City Medical Center,601 the court
held that one does not need an expert witness to testify that the bed
rails should have been in the up position for an elderly person who
fell out of bed.602 However, the court noted that despite the fact
that plaintiff was not required to call an expert witness, a nurse
had in fact testified that the side rails should have been up for a
person in the plaintiff’s condition.
The Jacober Rule/Learned Treatises
In Jacober v. St. Peter’s Medical Center,822 the Supreme Court
provided lawyers handling medical malpractice cases with a
powerful tool which can be utilized to establish the standard of care.
The Court, in urging the increased use of learned treatises, quoted
Wigmore, who wrote “those who write with no view to litigation
are at least as trustworthy, though unsworn and unexamined, as
perhaps the greater portion of those who take the stand for a fee
from one of the litigants.”823 The Jacober Court noted that greater
use of reliable learned treatises will enhance “the ability of juries to
evaluate expert testimony,”824 and distinguish meritorious claims
and defenses from those supported by “hired guns.”825
The trial court prohibited the plaintiff’s expert in Jacober from
using medical literature to support his opinion that defendant
negligently used too large a catheter on a neonate, causing blood
clots which led to gangrene, toe amputation and deformity of the
leg, because defense counsel refused to stipulate that the treatises
were “authoritative.”826 Plaintiff’s counsel also attempted to
822. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475 (1992).
823. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495 (1992) (quoting 6
Wigmore on
Evidence, § 1692, at 7 (Chadbourn rev. 1976)).
824. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 494 (1992).
825. See, e.g., Rubanik v. Witco Chem. Corp., 125 N.J. 421, 453 (1991).
826. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 481 (1992). In Jacober,
plaintiff’s
child was born after 25 to 28 weeks of gestation, and weighed just 730
grams, or 1 pound
10 ounces. The neonate’s physicians wanted to insert a catheter into the
infant’s aorta
through an umbilical artery to monitor the infant’s blood pressure and
gases. The nurse
prepared two surgical trays, one with a 3.5 catheter and one with 5.0
catheter. The doctors
attempted several times to insert the larger catheter and on each occasion
the infant’s right
leg became discolored, indicating circulatory dysfunction. Plaintiffs alleged
that as a result
of the attempts to insert the larger size catheter, the infant’s toes “autoamputated from dry
gangrene” and that thereafter the right leg grew unevenly. At the age of ten,
the child’s right
leg was misshapen and six inches shorter than the left leg, and one of his
doctors projected
a twelve inch difference in leg length by the time he became an adult.
Plaintiff’s expert
opined that the defendants were negligent in attempting to use the larger
5.0 catheter given
the infant’s low birth weight, and that the larger catheter caused vasospasm
or blood clots
which blocked the blood flow to the leg. Defendants’ expert testified that
the defendants
should use the largest possible catheter since smaller catheters are prone to
clot. At trial,
plaintiff’s counsel attempted to use two texts, Klaus & Fanaroff, Care of
the High Risk
impeach the defendant and the defense experts with the medical
literature. Although the defendant and defense experts conceded
that the literature plaintiff wished to utilize were “standard texts,”
the defendant and defense experts testified that the books were not
authoritative. Indeed, one defense expert testified that nothing in
medical literature was “authoritative”; another of the defendant’s
experts refused to recognize even his own articles as authoritative
for anyone other than himself, and refused to acknowledge that a
chapter in a book which he wrote was an authoritative source.827
Therefore, the court sustained objections to plaintiff’s attempted
cross-examination of the defendant’s experts with these textbooks.
Plaintiff also attempted to read a portion of the defendant’s
deposition wherein she admitted that the hospital’s standard
procedure of using the smaller catheter on infants weighing less
than 1500 grams was based on the one of the texts. The court
allowed the plaintiff to read the defendant’s deposition but refused
to allow plaintiff to refer to the text. The trial court also held that no
party could refer to the medical literature during summations. The
jury returned a verdict in favor of all defendants and specifically
found that the defendants did not deviate from generally accepted
medical standards in using the larger catheter.
In reversing, the Jacober Court started its analysis by noting
that, in Ruth v. Fenchel,828 it held that learned treatises may be
utilized on cross-examination only if the expert acknowledges the
text as “authoritative.”829 The Jacober Court held that even under
the Ruth standard, the texts were admissible since the defense
experts admitted that one text was “a standard text” and that the
other text came from “an eminent neonatologist” who authored
“a standard text book.”830 The Court explained that Ruth merely
requires an expert to recognize a text as a standard authority.831
The Court observed that a treatise generally has a high degree of
Neonate (2d. Ed. 1979) and James, Emergencies in the Delivery Room, in
Neonatal-Perinatal
Medicine (2d Ed. 1977), to support the argument that the smaller catheter
should have been
used and to impeach the defendants’ experts. Jacober v. St. Peter’s Med. Ctr.,
128 N.J. 475,
481 (1992).
827. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 483 (1992).
828. Ruth v. Fenchel, 21 N.J. 171 (1956).
829. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 487 (1992).
830. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 487 (1992).
831. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 488 (1992).
trustworthiness and reliability due to the scrutiny, criticism, and
revision required to “find its way into publication.”832 The Court
concluded:
It certainly is illogical, if not actually unfair, to
permit witnesses to give expert opinions based
on book knowledge, and then deprive the party
challenging such evidence of all opportunity
to interrogate them about divergent opinions
expressed in other reputable books.833
These reasons led the Court to conclude that an expert need
only recognize a text as “the type of material reasonably relied
on by experts in the field,”834 in order for a party to utilize it as
“substantive evidence on both direct and cross-examination.”835
The Jacober Court further held that if an expert testifies that a
treatise or periodical is regarded by professionals in the field as
trustworthy, then articles in the publication satisfy the requirements
of the rule. The Court adopted New Jersey Rules of Evidence
803(c)(18), which permits statements contained in learned treatises
to be utilized as evidence. The Court noted that the policy behind
the rule is to help equalize resources by “permitting a party with
less access to expert witnesses to advance an argument before a jury
based on opinions set forth in learned treatises.”836 Significantly,
the Court did not limit the use of text books to cross-examination.
The new rule:
allows texts to be established as reliable authority
by experts other than the cross-examined expert, as
well as by judicial notice. Secondly, expert witnesses
may refer to statements from learned treatises on
direct examination, to the extent that they relied
on those statements in forming their own opinion.
Finally, the contents of learned treatises may be
832. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495 (1992).
833. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 494-95 (1992).
834. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495 (1992).
835. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 491 (1992).
836. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495 (1992).
The Jacober Rule/Learned Treatises 7-16
introduced as substantive evidence on both direct
and cross- examination.837
The Court cautioned that allowing the text to be used as
substantive evidence on direct examination requires an expert to
explain and assist in the application of the treatise.838 When the
reliability of a proper text is in doubt, the issue shall be resolved by
a Rule 8 (now Rule 104) hearing and “the focus should be on what
the experts in fact rely on, not on whether the Court thinks they
should so rely.”839
The Jacober rationale applies not only to medical texts but
also safety codes and other manuals which may now be utilized
as evidence. Indeed, experts should ordinarily be permitted to
introduce the information contained in such publications on direct
examination if they rely on them in forming their opinion. These
publications can be used offensively to support a witness offered
by that party, or defensively to counter expert witnesses who offer
opinions which are contrary to the prevailing opinion in the field,
as found in the relevant professional literature.
Jacober was followed and expanded in Adamski v. Moss.840 In
Adamski, plaintiff alleged that she suffered damage to a nerve
in her right arm during an operation to remove a benign tumor in
her neck. Plaintiff claimed that the doctor failed to disclose that
the surgery could result in nerve damage and thus failed to obtain
her informed consent to the procedure. The defendant moved
for summary judgment based upon plaintiff’s failure to provide
an expert report. The pro se plaintiff’s responding certification
indicated that she was unable to secure the services of an expert
witness but informed the court that she intended to prove the medical
aspects of her case through “learned treatises.” Nevertheless, the
trial court granted defendant’s motion. In affirming the dismissal,
the Appellate Division noted that previously “learned treatises
were inadmissible substantively in New Jersey, except for their use
for impeachment of a witness, and then only when the witness
837. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 489-90 (1992).
838. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 491 (1992).
839. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 495-96 (1992).
840. Adamski v. Moss, 271 N.J. Super. 513 (App. Div. 1994).
recognized the treatise as authoritative.”841 After commenting
that learned treatises became conditionally admissible as a result
of the Supreme Court’s decision in Jacober, and the adoption
of New Jersey Rules of Evidence 803(c)(18), the Adamski court
summarized the two prerequisites for the use of learned treatises to
establish the standard of care in malpractice cases, stating:
First, the learned treatise must either be ‘called
to the attention of an expert witness upon crossexamination’
or be ‘relied upon by the expert in
direct examination.’ … The rule thus requires that
there must be an expert on the stand either as the
party’s witness or as an adverse witness being crossexamined.
… Second, the particular treatise must
be ‘established as a reliable authority by testimony
or by judicial notice.’842
On first reading, the Adamski opinion would seem to still
require the use of an expert, if not to establish the standard
of care, then at least to establish the reliability of the learned
treatise. However, the Adamski court observed that the plaintiff
could compel the defendant doctor to provide the opinion which
is the foundational prerequisite to use of the learned treatise. The
court explained:
Defendant, on the other hand, could be asked
concerning the fact of his expert opinion in the
past, rather than being required to make an expert
evaluation in the present. Rogotzki v. Schept, 91
N.J. Super. 135, 147-149, 219 A. 2d 426 (App. Div.
1966). Cf., Stigliano v. Connaught Laboratories,
Inc., 270 N.J. Super. 373, 378, 637 A. 2d 223 (App.
Div. 1994) (applying this principle to a defendant
compelling a plaintiff’s treating physician to
testify). The treatises might have been qualified
during a deposition.843
841. Adamski v. Moss, 271 N.J. Super. 513, 517 (App. Div. 1994) (citing
Ruth v. Fenchel,
21 N.J. 171, 176 (1956)).
842. Adamski v. Moss, 271 N.J. Super. 513, 519-20 (App. Div. 1994).
843. Adamski v. Moss, 271 N.J. Super. 513, 520 (App. Div. 1994).
The Adamski opinion also foresaw the possibility of “cases in
which learned treatises, qualified by judicial notice or by a witness,
could satisfy a requirement for expert proof.”844
Nevertheless, the Appellate Division affirmed the dismissal,
concluding “we seriously doubt, however, that since discovery had
been completed and any opportunity to secure the qualification of
the treatises during deposition, has now passed,” plaintiff can call
defendant at trial and establish that the treatises were, as suggested
by plaintiff, “reliable authority through defendant’s testimony.”845
The court suggested that even if plaintiff called
defendant as her witness and was given leave to
cross examine him, there is virtually no possibility
that defendant would establish the text as reliable
authority so that they could be presented against
him.846
However, this conclusion is flawed. The plaintiff could have
probably, if not certainly, compelled the defendant to acknowledge
that certain basic textbooks on surgery, such as Principles of
Surgery, were reliable. The plaintiff could have simply asked the
defendant what books or journals the defendant would rely upon
when doing research, and relied on those texts. Nevertheless,
Adamski is particularly significant in informed consent cases since
it allows a plaintiff to establish the knowledge of the risk that
occurred in the medical community.
The Jacober doctrine was followed in DaGraca v. Bell,847 where
plaintiff alleged that the defendant’s sudden stopping of antianxiety
medications lead to the development of neuroleptic
malignant syndrome. The jury rendered a verdict in favor of
the defendants and the plaintiff appealed, arguing that the trial
court precluded plaintiff from utilizing a learned treatise to crossexamine
the defendant’s experts. Plaintiff attempted to utilize the
report of a task force of the American Psychiatric Association and
plaintiff’s expert testified that the task force report was considered
reliable by the medical profession. The defense expert testified that
844. Adamski v. Moss, 271 N.J. Super. 513, 522 (App. Div. 1994).
845. Adamski v. Moss, 271 N.J. Super. 513, 520 (App. Div. 1994).
846. Adamski v. Moss, 271 N.J. Super. 513, 521 (App. Div. 1994).
847. DaGraca v. Bell, 288 N.J. Super. 292 (App. Div. 1996).
the task force report was not a reliable authority and the trial court
sustained an objection and precluded plaintiff from utilizing the
report. The Appellate Division reversed, observing:
The trial court’s ruling in this regard is plainly
incorrect and violates the learned-treatise rule
announced by our Supreme Court in Jacober v. St.
Peter’s Medical Center, 128 N.J. 475, 498 (1992).848
The Appellate Division specifically noted that a text may be
determined to be reliable by an expert other than the one being
crossexamined,
and may also be determined to be reliable by judicial
notice, and that the reason for this is to avoid “the possibility that
the expert may at the outset block cross-examination by refusing to
concede reliance.”849 The court reiterated that a reliable authority is
one which is representative of the type of research material relied
upon by experts in the field. The purpose of the rule was to prevent
a witness from avoiding interrogation “about divergent opinions
expressed in other reputable books.”850 The court reiterated that the
focus is not what the court thinks experts should rely on but rather
what experts actually rely on. If the reliability of the proffered
text is in doubt, the court should decide same by conducting a
Rule 104 (formerly Rule 8) hearing.851 The Appellate Division also
noted that pursuant to New Jersey Rules of Evidence 803(c)(18),
statements called to the attention of an expert witness on either
direct or cross-examination may be read into evidence if they
are established to be a reliable authority by testimony or judicial
notice. Significantly, the court held that the statements from the
learned treatise may not be received as exhibits but may be read
into evidence or displayed on charts.
The Jacober rule was revisited in Morlino v. Medical Center of
Ocean County,852 where the Court noted that a treatise may not
be substituted for expert testimony.853 The Court explained that
848. DaGraca v. Bell, 288 N.J. Super. 292, 299 (App. Div. 1996).
849. DaGraca v. Bell, 288 N.J. Super. 292, 299 (App. Div. 1996).
850. DaGraca v. Bell, 288 N.J. Super. 292, 300 (App. Div. 1996) (citing
Jacober v. St. Peter’s
Med. Ctr., 128 N.J. 475, 494-95 (1992)).
851. DaGraca v. Bell, 288 N.J. Super. 292, 300 (App. Div. 1996).
852. Morlino v. Med. Ctr. of Ocean Cnty., 152 N.J. 563 (1998).
853. Morlino v. Med. Ctr. of Ocean Cnty., 152 N.J. 563, 580 (1998) (citing
Adamski v. Moss,
271 N.J. Super. 513, 519-22 (App. Div. 1994)).
Jacober limited the use of learned treatises to situations where
an expert is on the stand and available to explain and assist in
comprehension of the treatise.854
The need for expert testimony to accompany medical literature
was re-emphasized in Tyndall v. Zaboski,855 where plaintiff alleged
that the defendant failed to inform her of the risk of pancreatitis
associated with the performance of a surgical procedure known as
endoscopic retrograde cholangio-pancreatography (ERCP). The
plaintiff relied on an excerpt of Harrison’s Principles of Internal
Medicine which reported that pancreatitis is a known risk of an
ERCP. Nevertheless, the trial court dismissed plaintiff’s complaint
for failure to provide expert testimony that pancreatitis was a known
risk of an ERCP. In affirming, the Appellate Division held:
The case law is clear. A plaintiff alleging lack of
informed consent has the burden of producing
expert testimony to establish that the risk cited was
one that the defendant should have been aware of
because it was known to the medical community
at the time. …
We addressed virtually the same issue in Febus v.
Barot, 260 N.J. Super. 322, 616 A.2d 933 (App. Div.
1992). There we affirmed summary judgment for
the defendant physician on an informed consent
claim because plaintiff failed to produce expert
testimony that the surgical complication that she
suffered was a ‘risk . . . of which the physician
should have been aware, and that it was recognized
within the medical community.’856
The court reiterated that New Jersey Rules of Evidence 803(c)(18)
requires that the learned treatise must be relied on by an expert
in direct examination or called to his or her attention on crossexamination
in order to be utilized. The court cited its holding in
854. Morlino v. Med. Ctr. of Ocean Cnty., 152 N.J. 563, 581 (1998) (citing
Jacober v. St.
Peter’s Med. Ctr., 128 N.J. 475, 491 (1992)).
855. Tyndall v. Zaboski, 306 N.J. Super. 423 (App. Div. 1997).
856. Tyndall v. Zaboski, 306 N.J. Super. 423, 426 (App. Div. 1997) (citing
Febus v. Barot,
260 N.J. Super. 322, 327 (App. Div. 1992)).
Canesi v. Wilson,857 that “a party cannot generally introduce a
treatise into evidence as a substitute for expert testimony.”858
Therefore, the Tyndall court concluded that even if the trial court
took judicial notice that Harrison’s was a reliable authority, the
treatise still must be utilized in connection with the testimony of
an expert.859 Since plaintiff had no expert, it was appropriate to
grant summary judgment.
Fictitious Defendant Rule
However, it is not always possible to identify all potential
defendants prior to expiration of the statute of limitations. In such
a case, the plaintiff must utilize the fictitious defendant procedures
provided by New Jersey Court Rule 4:26-4. This rule provides that
when the plaintiff does not know, and cannot with reasonable
effort learn, the true identity of a potential defendant, the plaintiff
8. Mitchell v. Procini, 315 N.J. Super. 557, 564-65 (App. Div. 1998).
9. Mitchell v. Procini, 315 N.J. Super. 557, 566 (App. Div. 1998); see also
Cogdell v. Hosp.
Ctr. at Orange, 116 N.J. 7 (1989); Stegmeier v. St. Elizabeth’s Hosp., 239 N.J.
Super. 475
(App. Div. 1981); Cafferata v. Payser, 251 N.J. Super. 256 (App. Div. 1991);
N.J. Ct. R. 4:51(a)(2), “Notice of Other Actions and Potentially Liable Persons.”
can plead a fictitiously named defendant, commonly named as a
“John Doe,” and amend the complaint to substitute the real name
of the defendant after the defendant’s identity is discovered. The
complaint against the new defendants is deemed to relate back to
the date of the filing of the initial complaint.
However, this rule has its pitfalls for the unwary. An example of
the application of this rule is found in Stegmeier v. St. Elizabeth’s
Hospital.10 In Stegmeier, plaintiff obtained a $50,000 verdict
against a hospital. Pursuant to N.J.S.A. 2A:53A-8, the hospital’s
liability at that time was limited to $10,000. Plaintiff therefore
moved after entry of the judgment to amend the complaint to name
an individual nurse as one of the fictitious defendants. The court
noted that use of New Jersey Court Rule 4:26-4 permits one to file
suit against a fictitious defendant and then amend the complaint
when the name of the defendant is discovered, and provides
that the amendment relates back to the filing of the original
complaint.11 However, the court warned that “plaintiff is required
to proceed diligently to amend the complaint without prejudice
to the defendant to be joined.”12 The court also noted that New
Jersey Court Rule 4:26-4 requires plaintiff to amend the complaint
“prior to judgment” and therefore plaintiff’s attempt to amend the
complaint post-judgment to name an individual defendant was
improper.13 Therefore, the court denied the application to amend
the complaint.14
An unusual exception to the entire controversy rule is found in
Cafferata v. Payser,15 where the physician had sued a patient in the
Special Civil Part to collect a bill of $1,275. The case was settled
with the insurance company paying the bulk of the bill and the
patient paying $160.80 to settle the case. Thereafter, the patient
brought a malpractice suit and the physician moved to dismiss
based upon the entire controversy doctrine embodied in New
Jersey Court Rule 4:30A. The trial court dismissed plaintiff’s claim,
but the Appellate Division reversed. Initially, the court noted that
10. Stegmeier v. St. Elizabeth’s Hosp., 239 N.J. Super. 475 (App. Div. 1981).
11. Stegmeier v. St. Elizabeth’s Hosp., 239 N.J. Super. 475, 484 (App. Div.
1981).
12. Stegmeier v. St. Elizabeth’s Hosp., 239 N.J. Super. 475, 484 (App. Div.
1981).
13. Stegmeier v. St. Elizabeth’s Hosp., 239 N.J. Super. 475, 485 (App. Div.
1981).
14. See also § 8-6:2 discussing the discovery rule.
15. Cafferata v. Payser, 251 N.J. Super. 256 (App. Div. 1991).
NJ MedMal_FullBook.indb 767 5/27/14 5:41:19 PM
the entire controversy doctrine is based upon knowledge of the
existence of a cause of action:
The knowledge of the existence of a cause of action
which will invoke the entire controversy doctrine is
the same as the knowledge which will trigger the
running of the statute of limitations in those cases
to which the discovery rule of deferred accrual is
applicable.16
Nevertheless, the court held that even if plaintiff had knowledge
of the potential malpractice claim, the settlement of the collection
case against plaintiff did not bar the plaintiff from later bringing the
malpractice claim. The court expressly stated that the purpose of
the entire controversy doctrine is “to achieve economy in litigation
by avoiding the waste, inefficiency, delay and expense of piecemeal
and fragmented litigation.”17 However, the court also noted that
the doctrine is “equitable in nature and is fundamentally predicated
upon ‘judicial fairness and will be invoked in that spirit.’ ”18 The
court therefore held that a patient, appearing pro se as a defendant
in a Special Civil Part matter, and who paid $160.80 to settle a
claim based on mediation with a law clerk, should not be barred as
a matter of equity from bringing a malpractice claim thereafter.
The compulsion to join all potential defendants in one action
prior to expiration of the statute of limitations lends itself to the
possibility that plaintiff will not initially be able to support the claim
against certain defendants with the requisite expert testimony. In
such cases a dismissal without prejudice is the proper procedure, as
was suggested by Lawler v. Isaac.19 In Lawler, plaintiff alleged that
a radiologist negligently transposed an X-ray and reported that a
polyp was in the right transverse colon of plaintiff when in fact,
the polyp was in the left transverse colon. Plaintiff also alleged that
other doctors who performed numerous resections of the colon
were negligent. During the course of pretrial discovery, plaintiff’s
counsel executed stipulations of dismissal without prejudice as
16. Cafferata v. Payser, 251 N.J. Super. 256, 260 (App. Div. 1991).
17. Cafferata v. Payser, 251 N.J. Super. 256, 261 (App. Div. 1991) (citing
Cogdell v. Hosp.
Ctr. at Orange, 116 N.J. 7, 26 (1989)).
18. Cafferata v. Payser, 251 N.J. Super. 256, 261 (App. Div. 1991) (citing
Cogdell v. Hosp.
Ctr. at Orange, 116 N.J. 7, 26 (1989)).
19. Lawler v. Isaac, 249 N.J. Super. 11 (App. Div. 1991).
to two individual defendants and a stipulation of dismissal with
prejudice as to the hospital.
Thereafter, plaintiff’s new counsel received a report asserting
that the two defendants who had been dismissed were negligent.
Counsel for plaintiff made a motion to reinstate the complaint and
the trial court denied the motion, holding that New Jersey Court
Rule 4:50-1 applied to voluntary dismissals and plaintiff’s claim
for relief due to the new expert report was time barred by the oneyear
limitation in New Jersey Court Rule 4:50-2. The Appellate
Division reversed, noting that New Jersey Court Rule 4:50 applies
only to final judgments as to all parties. Since not all parties had
been dismissed from the case, the stipulation of dismissal without
prejudice was not a final judgment.20 The court held:
We conclude that the interest of justice requires
reinstatement of plaintiff’s complaint against
[defendant] and [co-defendant]. They will not
be prejudiced by their reentry into this lawsuit.
Discovery can be reopened to permit them to take
supplemental depositions and permit participation
by all parties and such additional discovery as the
trial court considers proper.21
Affidavit of NonInvolvement
The New Jersey Medical Care Access and Responsibility and Patients
First Act,63 created a procedure for a defendant to file an “Affidavit
of Noninvolvement.”64 This statute provides that a defendant in a
malpractice case “may cause the action against that provider to be
dismissed upon the filing of an affidavit of noninvolvement with the
court.” The affidavit of noninvolvement must state
with particularity, the facts that demonstrate that the
provider was misidentified or otherwise not involved,
individually or through its servants or employees, in
the care and treatment of the claimant, and was not
56. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335 (1994).
57. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 338 (1994).
58. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 339 (1994).
59. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 338 (1994).
60. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 338 (1994).
61. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 341 (1994) (citing
Cowan v.
Doering, 111 N.J. 451 (1988)).
62. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 341 (1994) (citing
Green v. Sterling
Extruder, 95 N.J. 263 (1984) and Suter v. San Angelo Foundry & Mach. Co., 81
N.J. 150
(1979)).
63. N.J.S.A. 2A:53A-37, et seq.
64. See N.J.S.A. 2A:53A-40.
obligated, either individually or through its servants
or employees, to provide for the care and treatment
of the claimant, and could not have caused the
alleged malpractice, either individually or through
its servants or employees, in any way.65
The plaintiff and any co-defendant
shall have the right to challenge an affidavit of
noninvolvement by filing a motion and submitting
an affidavit that contradicts the assertions of
noninvolvement made by the health care provider
in the affidavit of noninvolvement.66
The court shall reinstate any claim dismissed due to “false or
inaccurate statements in an affidavit of noninvolvement” and
reinstatement of a party pursuant to this subsection
shall not be barred by any statute of limitations
defense that was not valid at the time the original
action was filed.67
The statute imposes penalties upon anyone who “knowingly filed
a false or inaccurate affidavit of noninvolvement,” including
the reasonable expenses incurred as a result of the
filing of the false or inaccurate affidavit, including
a reasonable attorney fee. The court shall also
refer the matter to the Attorney General and
the appropriate professional licensing board for
further review.68
The statute imposes similar sanctions on any plaintiff or
plaintiff’s counsel who “falsely objected to a health care provider’s
affidavit of noninvolvement, or knowingly provided an inaccurate
statement regarding a health care provider’s affidavit,” including
the reasonable expenses incurred as a result of the
submission of the false objection or inaccurate
statement, including a reasonable attorney fee. The
court shall also refer the matter to the Attorney
65. N.J.S.A. 2A:53A-40(a).
66. N.J.S.A. 2A:53A-40(b).
67. N.J.S.A. 2A:53A-40(c).
68. N.J.S.A. 2A:53A-40(c).
General and the appropriate professional licensing
board for further review.69
As such, this section is narrowly drawn to include only those who
have not only been “misidentified or otherwise not involved,” but
also “not obligated” to have provided care and treatment of the
patient and who “could not have caused the alleged malpractice,
either individually or through its servants or employees, in any
way.” In fact, such persons could always have moved for summary
judgment.
Statute of Limitations
The statute of limitations70 requires that a personal injury case
“be commenced within 2 years next after the cause of any such
action shall have accrued.” The application of the statute of
limitations in malpractice cases is often difficult since, unlike many
other personal injury claims, there is often no single traumatic
event which starts the limitations period. In some cases, such as
the failure to remove a sponge from the body of a surgical patient,
the negligent act may not even be discovered for more than two
years from the day of the operation.
The use of the word “accrued” has resulted in a substantial
amount of discussion in the caselaw. An early interpretation
of the accrual language in the statute of limitations is found in
Tortorello v. Reinfeld,71 where plaintiff alleged that a surgeon
negligently performed plastic surgery. The defendant operated
on plaintiff in August and September 1946. Plaintiff had another
operation in October 1946 by another surgeon and saw a third
doctor in December 1946. She continued to be examined by
the defendant until June or July 1947. Plaintiff claimed she was
discharged from the defendant’s care in November 1947. The
complaint was filed in January 1949. The court noted that any
negligence of the defendant must have occurred before December
1946 when the plaintiff saw her third doctor. The court therefore
69. N.J.S.A. 2A:53A-40(d).
70. N.J.S.A. 2A:14-2.
71. Tortorello v. Reinfeld, 6 N.J. 58 (1950).
dismissed the case because the suit was not filed until two years
and one month after the defendant’s last negligent act could have
been performed. The Court rejected the argument that the statute
of limitations in malpractice cases commences when the plaintiff
discovers that malpractice was committed:
Any wrongful act or omission resulting in any
injury to the person, though slight, for which
the law provides a remedy gives rise to the right
to institute an action therefore and the cause of
action is said to accrue at that time. The statute of
limitations attaches at once and commences to run
from that time irrespective of the time when the
injury is discovered or the consequential damages
result.72
The Court noted that the plaintiff consulted with a lawyer in
June 1948, several months prior to expiration of the statute of
limitations, and therefore “her failure to bring the action in due
time is not attributable to any fault but her own.”73
However, subsequent cases recognized the injustice imposed upon
a patient whose claim is time-barred before the patient even knew
of the injury. The New Jersey Supreme Court ultimately concluded
that because the statute of limitations is equitable in nature, the
defendant should be required to demonstrate prejudice due to
the lack of notice in order to have a case dismissed on limitation
grounds. This point was made in Zaccardi v. Becker,74 where the
issue was whether the statute of limitations bars the re-institution
of a case dismissed for procedural reasons. In discussing the statute
of limitations, the Court noted:
At the outset, we note that statutes of limitations
are not self-executing. Such statutes are based
on the goals of achieving security and stability
in human affairs and insuring that cases are not
tried on the basis of stale evidence. … Because
they are based on these specific policies, they
must be raised as affirmative defenses, subject to
72. Tortorello v. Reinfeld, 6 N.J. 58, 65 (1950).
73. Tortorello v. Reinfeld, 6 N.J. 58, 67 (1950).
74. Zaccardi v. Becker, 88 N.J. 245 (1982).
judicial modification in appropriate circumstances.
Mechanistic application of such statutes could
unnecessarily sacrifice individual justice in
particular circumstances.75
It was the equitable nature of the statute of limitations that led
to development of the discovery rule, which is discussed in the next
section.
In 2004, the New Jersey Legislature enacted the New Jersey
Medical Care Access and Responsibility and Patients First Act.76
The statute created a number of changes in existing law. The statute
of limitations77 was amended to read as follows:
Every action at law for an injury to the person
caused by the wrongful act, neglect or default of
any person within this State shall be commenced
within two years next after the cause of any such
action shall have accrued; except that an action
by or on behalf of a minor that has accrued for
medical malpractice for injuries sustained at birth
shall be commenced prior to the minor’s 13th
birthday.78
As stated, this statute only applies to injuries sustained “at
birth,” presumably as the result of birth trauma, and would not
apply to cases involving the failure to diagnose birth defects or
similar claims where the malpractice occurred not at birth but
rather during the pregnancy. The statute continues:
In the event that an action by or on behalf of a
minor that has accrued for medical malpractice
for injuries sustained at birth is not commenced by
the minor’s parent or guardian prior to the minor’s
12th birthday, the minor or a person 18 years of
age or older designated by the minor to act on the
minor’s behalf may commence such an action.
For this purpose, the minor or designated person
75. Zaccardi v. Becker, 88 N.J. 245, 256 (1982).
76. See N.J.S.A. 2A:53A-38, et seq.
77. N.J.S.A. 2A:14-2.
78. See N.J.S.A. 2A:14-2(a).
may petition the court for the appointment of a
guardian ad litem to act on the minor’s behalf.79
Similarly, N.J.S.A. 2A:14-21 was amended to provide that any
action by or on behalf of a minor that has accrued
for medical malpractice for injuries sustained at
birth shall be commenced prior to the minor’s 13th
birthday, as provided in N.J.S.A. 2A:14-2.
Although a discussion of the constitutionality of this provision
is beyond the scope of this text, significant constitutional issues are
created by a statute which seeks to bar the claim of a child before
that child reaches the age of majority.
The Discovery Rule
Although most attorneys associate the creation of the discovery
rule with Lopez v. Swyer,80 the genesis of the discovery rule is
found in Fernandi v. Strully,81 which involved a foreign object, a
wing nut, which was inadvertently left inside the plaintiff ’s body
during surgery. In Fernandi, plaintiff had the operation in April
1955. Plaintiff continued to see the surgeon through 1958 and
complained of pain in her back. In August 1958, she had an X-ray
that disclosed the presence of a foreign body that had been left
during the surgery. Plaintiff filed suit in August 1959. The trial
court granted summary judgment due to the fact that more than
two years had elapsed between the date of the operation and
the institution of the lawsuit. In reversing, the Supreme Court
noted that statutes of limitations are designed to stimulate
prompt assertion of claims and provide repose when such claims
are not asserted. However, the Fernandi Court held that these
considerations do not come into play in a case involving a foreign
object:
[F]oreign object malpractice cases, with which
we are particularly concerned, present special
79. See N.J.S.A. 2A:14-2(b).
80. Lopez v. Swyer, 62 N.J. 267 (1973).
81. Fernandi v. Strully, 35 N.J. 434 (1961).
considerations which may fairly be said to set them
apart. They involve a confidential doctor-patient
relationship, the negligent failure to remove a foreign
object during the course of the doctor’s operation
on his patient, the patient’s total ignorance during
the customary period of limitations of that fact or
of circumstances suggesting it, the later discovery
of the foreign object and the material harm it
had done and the patient’s expeditious institution
of legal action thereafter. These circumstances
eliminate the danger of a belated false or frivolous
claim. Departing from the ordinary rule in this
special type of situation so as to permit the patient
to maintain his legal action after he knows or has
reason to know of the existence of his claim would
avoid flagrant injustice to him without unduly
impairing repose or promoting litigation of the
character referred to in Tortorello as ‘too uncertain
and too speculative to be encouraged.’82
Thus the Court held that foreign object cases fall
within a special grouping or ‘class of cases’ …
where the period of limitations may and should
fairly and justly be said to begin to run when the
plaintiff knows or has any reason to know about
the foreign object and the existence of the cause of
action based upon its presence.83
The Court concluded:
Here the lapse of time does not entail the danger
of a false or frivolous claim nor the danger of a
speculative or uncertain claim. The circumstances
do not permit the suggestion that Mrs. Fernandi
may have knowingly slept on her rights but, on
the contrary, establish that cause of action was
unknown and unknowable to her until shortly
before she instituted suit. Justice cries out that she
82. Fernandi v. Strully, 35 N.J. 434, 441-42 (1961).
83. Fernandi v. Strully, 35 N.J. 434, 450 (1961).
fairly be afforded a day in court and it appears
evident to us that this may be done, at least in this
highly confined type of case, without any undue
impairment of the two-year limitation or the
considerations of repose which underlie it. If, as is
to be hoped, the resulting jeopardy to defendants
produces a greater measure of care in connection
with surgical operations, so much the better.84
The discovery rule was later extended to other types of
malpractice cases, and it became well settled that the statute of
limitations required plaintiff to file suit within two years after
plaintiff knew or had reason to know of the basis for a claim
against the defendant.
In Yerzy v. Levine,85 plaintiff alleged that the defendant negligently
performed gall bladder surgery in January 1964. Plaintiff continued
to have problems after the operation and she underwent a second
operation in February 1964, which revealed that the common
bile duct had been completely severed. The first operation did
not involve the common bile duct and although the defendant
denied severing it, he conceded that it must have happened during
the first operation. Plaintiff alleged that she first found out about
the severed common bile duct sometime during the first half of
1966, and she filed suit in October 1966. The defendant moved
to dismiss based upon the statute of limitations, and the trial
court dismissed the malpractice claims but permitted plaintiff to
proceed on a claim of fraudulent concealment. At trial, the court
instructed the jury first to determine whether the defendant had
been guilty of negligence and then to determine whether there had
been a fraudulent concealment of the malpractice. The jury found
malpractice but no fraudulent concealment. In reversing, the
Appellate Division relied on Fernandi, to support the conclusion
that the discovery rule applied to this surgical mishap.
The severing of the common duct and the closing
of the operative site without repairing it, like the
leaving of the wing nut in Fernandi, are actions
which themselves bespoke negligence. … We
84. Fernandi v. Strully, 35 N.J. 434, 450-51 (1961).
85. Yerzy v. Levine, 108 N.J. Super. 222 (App. Div. 1970), aff’d o.b., 57 N.J.
234 (1970).
conclude that to give plaintiffs their day in court
will work no undue impairment of the two-year
limitation or the reasons which underlie it.86
The court therefore concluded that the jury must determine
whether the plaintiff discovered the malpractice within two years
of the filing of the suit.87 (The Supreme Court later held in Lopez,
that this was not a jury question but rather a determination to
be made by the trial court, see discussion below.) Nevertheless,
in affirming based upon the opinion below, the Supreme Court
clearly defined the issue:
[T]he question with respect to the statute of
limitations is whether plaintiff brought this action
within two years after plaintiff knew or had reason
to know that plaintiff might have a basis for a claim
against the defendant.88
The discovery rule was refined in Lopez v. Swyer.89 In Lopez,
plaintiff had a radical mastectomy and thereafter was treated
with radiation therapy by Dr. Swyer, a radiologist, during
January and February 1962. The court described in detail the
unfortunate residuals of the radiation, which included fibrosis
of the lung, spontaneous rib fractures, necrotic ulcers of the
skin, and other injuries. Plaintiff ’s treatment with Dr. Swyer
terminated in April 1962. Plaintiff claimed that she became
aware of the possibility of malpractice in March 1967, while
in a hospital for reconstructive surgery, when she heard her
treating doctor state, “and there you see, gentlemen, what
happens when the radiologist puts a patient on a table and goes
out and has a cup of coffee.”90 The plaintiff filed suit against
the radiologist and others in September 1967. The defendants
moved for summary judgment, contending that the plaintiff
knew or should have known of the malpractice no later than
86. Yerzy v. Levine, 108 N.J. Super. 222, 229-30 (App. Div. 1970), aff’d. o.b.,
57 N.J.
234 (1970).
87. Yerzy v. Levine, 108 N.J. Super. 222, 230 (App. Div. 1970), aff’d. o.b., 57
N.J.
234 (1970).
88. Yerzy v. Levine, 57 N.J. 234, 235 (1970).
89. Lopez v. Swyer, 115 N.J. Super. 237 (App. Div. 1971), aff’d, 62 N.J. 267
(1973).
90. Lopez v. Swyer, 115 N.J. Super. 237, 245 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
1962, and the trial court dismissed the complaint. In reversing
the dismissal, the Appellate Division first noted:
Under the so-called ‘discovery rule’ of Fernandi v.
Strully, 35 N.J. 434 (1961), for defendant to
prevail on a statute of limitations defense it is
not enough that a plaintiff knows of the injury
for which the claim is made as a residual of the
purported offensive treatment, but he must know
or have reason to know that such treatment was
negligently administered. … [W]e believe that
plaintiffs’ knowledge of the causal relationship of
these physical injuries to negligent treatment by
Swyer remains a fact question concerning which,
under the circumstances of this case, the minds of
reasonable men could differ.91
The Appellate Division added:
Where plaintiff has acted promptly after
gaining knowledge of his injuries and their
causal connection with negligent treatment, and
the passage of time neither lends inspiration
to fraudulent claims nor puts defendants at a
disadvantage from a standpoint of proofs, we
do not believe that the policy considerations
concerning repose are paramount to those
suggesting justice by a trial on the merits.92
The court based its decision in part upon the fact that the
defendant notified his malpractice carrier in October 1962, and
therefore there was no prejudice to Dr. Swyer as a result of the
delay in filing suit.93
The Supreme Court affirmed, Lopez v. Swyer,94 and created a
procedure which has become known as a “Lopez hearing” for
the resolution of limitations defenses. Initially, the Supreme
Court amended Yerzy, and held that the determination as to the
91. Lopez v. Swyer, 115 N.J. Super. 237, 245-46 (App. Div. 1971), aff’d, 62
N.J. 267 (1973).
92. Lopez v. Swyer, 115 N.J. Super. 237, 248 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
93. Lopez v. Swyer, 115 N.J. Super. 237, 243 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
94. Lopez v. Swyer, 62 N.J. 267 (1973).
expiration of the statute of limitations is a question of law for the
trial court:
[W]henever a plaintiff claims a right to relief from
the bar of the statute of limitations by virtue of the
so called ‘discovery’ rule, the question as to whether
such relief is properly available shall be deemed to
be an issue for determination by the court rather
than by the jury.95
The Supreme Court explained that even though the time
of discovery may be a question of fact, it is “[t]he interplay of
the conflicting interests of the competing parties” that must be
considered and therefore must be made “by a judge conscious of
the equitable nature of the issue before him.”96 The Court also held
that the determination of the applicability of the discovery rule by
the trial court:
should ordinarily be made at a preliminary
hearing, and outside of the presence of the jury.
Generally the issue will not be resolved on affidavits
or depositions since the demeanor may be an
important factor where credibility is significant.
Where credibility is not involved, affidavits, with
or without depositions, may suffice; it is for the
trial judge to decide. The issue will be whether or
not a party, either plaintiff or counter-claimant, is
equitably entitled to the benefit of the discovery
rule. All relevant facts and circumstances should be
considered. The determinative factors may include
but need not be limited to: the nature of the alleged
injury, the availability of witnesses and written
evidence, the length of time that has elapsed since
the alleged wrongdoing, whether the delay has been
to any extent deliberate or intentional, whether the
delay may be said to have peculiarly or unusually
prejudiced the defendant. The burden of proof
95. Lopez v. Swyer, 62 N.J. 267, 272 (1973).
96. Lopez v. Swyer, 62 N.J. 267, 275 (1973).
will rest upon the party claiming the indulgence of
the rule.97
In a footnote, the Supreme Court noted that where the same
evidence to be presented at trial is relevant to the statute of
limitations issue, the judge may elect to go forward and rule at the
end of the plaintiff’s case or after all proofs are in, as is appropriate.98
The Court cautioned that when this procedure is followed, the
trial court should excuse the jury during the introduction of any
evidence which is relevant only to the limitations issue.
Filing within Two Years from the Date of Discovery
The caselaw provides much guidance regarding the proper
application of the discovery rule. The issue of whether a plaintiff
has a full two years from the date of discovery, or must file
suit within a reasonable amount of time after discovery of the
malpractice, was addressed in Fox v. Passaic General Hospital.99
In Fox, plaintiff had surgery in October 1970. Plaintiff had a
post-surgical intra-abdominal abscess drained in November
1970. In February 1971, she went to the emergency room because
of continued pain, and an X-ray taken at that time demonstrated
that a drain from the original surgery had not been removed.
The drain was removed in March 1971 and plaintiff filed suit
against the doctor in the same month. Plaintiff settled the case
against the doctor shortly thereafter and then filed suit against
the hospital and a nurse in December 1972, more than two
years after the malpractice occurred but less than two years
after plaintiff discovered the presence of the foreign object.
The defendants moved for summary judgment, arguing that
plaintiff had sufficient time to file suit prior to the expiration of
the statute of limitations, and the trial court dismissed the case.
The Appellate Division reversed, holding that since plaintiff
did not know about the existence of the drain in her abdomen
until the X-ray was taken in February 1971, the suit against the
hospital was filed within the two years provided by the statute
97. Lopez v. Swyer, 62 N.J. 267, 275-76 (1973) (citations omitted).
98. Lopez v. Swyer, 62 N.J. 267, 275 n.3 (1973).
99. Fox v. Passaic Gen. Hosp., 135 N.J. Super. 108 (App. Div. 1975), aff’d, 71
N.J. 122 (1976).
of limitations. The court based its decision on the equitable
considerations:
The lapse between the time that the drain was first
missed on October 30, 1970 and the institution of
this action on December 1, 1972, (approximately
25 months) did not create the danger of a false,
frivolous, speculative or uncertain claim. The claim
does not raise questions as to plaintiff’s credibility,
nor does it rest on matters of professional
diagnosis, judgment or discretion. Plaintiff’s claim
rests on the presence of a foreign object within
her abdomen following the post-operative care by
… [the defendant] and defendant hospital and its
employee nurses. … Moreover, the witnesses and
all written evidence, including all hospital records,
are available. There is no suggestion that the delay
had prejudiced defendants in any way.100
The Supreme Court affirmed.101 The Court decided that for
practical reasons plaintiff must be entitled to file suit for two years
from the date the plaintiff discovered the cause of action. The
Court stated that there was
no utility in a rule which would add to the difficulties
already faced by a trial judge in determining, under
Lopez, the date of ‘discovery’ of the cause of action
by the plaintiffs, the task of resolving in every case
the ‘reasonableness’ vel non of the time left for the
commencement of an action between the date of
discovery and the expiration of the two years from
the actionable occurrence.102
The Court concluded that it is “convenient as well as logical”
simply to allow plaintiff to pursue the cause of action within two
years of the date of discovery of the cause of action. However, the
Court cautioned that there may be exceptions to this general rule:
100. Fox v. Passaic Gen. Hosp., 135 N.J. Super. 108, 112 (App. Div. 1975),
aff’d, 71 N.J.
122 (1976).
101. Fox v. Passaic Gen. Hosp., 71 N.J. 122 (1976).
102. Fox v. Passaic Gen. Hosp., 71 N.J. 122, 126 (1976).
As already intimated, however, the general rule we
here declare must be administered in such manner
as not unduly to affect the defendant’s right to
equitable treatment. The discovery rule possesses
the inherent capacity for prejudice to a defendant
since the principle of repose inherent in the statute
of limitations is necessarily diluted when an action
is instituted beyond a statutory period after the
defendant’s actionable conduct. See Lopez v.
Swyer, supra, 62 N.J. at 274. We therefore are of
the view, and hold, that if a defendant can establish
(a) that the lapse of time between the expiration of
two years after the actionable event and the date of
the institution of the suit ‘peculiarly or unusually
prejudiced the defendant’, Id. at 276; and (b) that
there was a reasonable time for plaintiff to institute
his action between discovery of the cause of action
and expiration of said two years after the actionable
event, the cause of action may be dismissed on
limitations grounds.103
The Supreme Court also instructed that it remains the plaintiff’s
burden of proof as to the date of discovery and that this rule only
applies to cases where the cause of action is discovered within two
years. The Court expressly withheld decision as to cases where the
cause of action is not discovered within two years of the date of
the malpractice.104
The Supreme Court reached a similar conclusion in Moran v.
Napolitano,105 where plaintiff had been treated by the defendants
through October 1971. In March 1972, plaintiff consulted a lawyer
to investigate the possibility of a malpractice case. In June 1972
plaintiff’s subsequent treating physician stated to plaintiff’s counsel
that although he did not believe that the plaintiff received proper
treatment, he could not state that the defendants were guilty of
malpractice. In December 1972, counsel for plaintiff obtained an
103. Fox v. Passaic Gen. Hosp., 71 N.J. 122, 127-28 (1976).
104. Fox v. Passaic Gen. Hosp., 71 N.J. 122, 128 (1976).
105. Moran v. Napolitano, 71 N.J. 133 (1976).
opinion from a physician stating that the defendants committed
malpractice. Plaintiff did not file suit until January 1974.
The Supreme Court held that discovery of the cause of action
occurred in June 1972, when the subsequent treating doctor advised
counsel for the plaintiff that the treatment provided to plaintiff was
improper. Therefore, the plaintiff’s action was timely, “having been
filed within two years of her discovery of [the] cause of action.”106
Justice Clifford dissented, arguing that a plaintiff who discovers a
cause of action after the statute of limitations has expired should
be required to file his suit “expeditiously,” and that a plaintiff who
discovers the cause of action before the expiration of the statute
of limitations should be required to file suit within a reasonable
time. Justice Clifford noted that the plaintiff was “sufficiently
suspicious” to trigger the statute of limitations by March 1972
when she consulted a lawyer, and would have held that the statute
of limitations barred the suit of plaintiff because
more than reasonable time remained for them
expeditiously—even casually, languidly, desultorily,
at their leisure—to institute suit. Ordinarily in the
context of statute of limitations, we speak in terms
of sleeping on one’s rights; but this case comes
closer to outright hibernation.107
Nevertheless, Moran is significant for the holding that the statute
of limitations is not necessarily triggered by the mere consultation
with an attorney.
Discovery Rule Triggered by Knowledge of Fault
The discovery rule is triggered by knowledge of fault, but is not
delayed until the plaintiff is advised of the possibility of a cause of
action by an attorney. This point was emphasized in Burd v. New
Jersey Telephone Company,108 where plaintiff had a heart attack
while using a glue with a particular substance, THF, and claimed
that the glue caused the heart attack. The heart attack occurred in
September 1971, and the suit was not filed until May 1974. After
judgment was entered for the plaintiff, the Appellate Division
106. Moran v. Napolitano, 71 N.J. 133, 137 (1976).
107. Moran v. Napolitano, 71 N.J. 133, 144 (1976) (Clifford, J. dissenting).
108. Burd v. N.J. Tel. Co., 76 N.J. 284 (1978).
reversed and held that the case should have been dismissed due to
the statute of limitations. The Supreme Court affirmed and held:
It was not our intent, in the language from Lopez
quoted at the head of this opinion, to hold that
a claimant’s time to sue, for limitations purposes,
does not begin to run until he knows or is advised
by a lawyer that facts of which he does, or should,
reasonably have knowledge, give rise to a legal
cause of action against a particular defendant.109
The Court held that this rule applies to any personal injury claim,
including malpractice actions, and that the cause of action accrues
when “plaintiff learns, or reasonably should learn, the existence of
that state of facts which may equate in law with a cause of action.”110
Since it was clear that plaintiff knew of the causal relationship
between the glue and the heart attack at or about the time the
heart attack occurred, the Supreme Court concluded that his claim
was time barred. Justice Handler dissented, arguing that plaintiff
could not have discovered the cause of action until advised by his
attorney that he had expert reports linking the glue and the heart
attacks. Justice Handler would have held that a lawsuit is timely
unless defendant could show unusual prejudice and there was a
reasonable time for plaintiff to institute the suit prior to expiration
of the statute of limitations.111
The same conclusion was reached in Rankin v. Sowinski,112
where plaintiff alleged that the defendant negligently extracted
an impacted wisdom tooth in February 1964. Within days of the
extraction of the tooth, plaintiff consulted with two other dentists
because of problems she had been having with her jaw after the
extraction. Plaintiff saw no other dentist until August 1968, when
she conferred with her attorney, who had her see a dentist in New
York City. Plaintiff did not file suit until January 1969. The trial
court denied the defendant’s motion for summary judgment,
concluding that although plaintiff had sustained an injury to the jaw
during the extraction, the statute of limitations did not begin to run
109. Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978).
110. Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978).
111. Burd v. N.J. Tel. Co., 76 N.J. 284, 299-304 (1978).
112. Rankin v. Sowinski, 119 N.J. Super. 393 (App. Div. 1972).
until plaintiff realized the nature and extent of her injuries. The
defendants appealed, arguing that plaintiff knew her jaw was injured
as early as March 1964. The Appellate Division reversed, stating,
Plaintiff knew her jaw had been injured by Dr.
Sowinski in March 1964 within two or three days
after the extraction. The fact that she had been
injured had been confirmed during her subsequent
examinations by Dr. Ruff and Dr. Donner. There
was no evidence to support her contention that she
did not discover the nature of her injury until she
was examined by Dr. Berlove after conferring with
her attorney in September 1968.113
The court rejected the argument that the statute does not begin
to run until the plaintiff not only knew she had been injured, but
also knew that the defendant was negligent.114
To say that she had to know or be informed that
she had a cause of action before the statute would
begin to run would be unreasonable. … To accept
the premise that the statute did not begin to run
until she was advised by her attorney or Dr.
Berlove in September 1968 that she had a cause of
action for malpractice (which, incidentally, is not
supported by the record) would be to disregard
the policy of repose, which underlies the statute of
limitations, thus extending the threat of litigation
indefinitely.115
The Supreme Court has held, however, that the plaintiff must
have reason to know of the fault of another before the statute
of limitations begins to accrue. This point is demonstrated in
Savage v. Old Bridge-Sayreville Medical Group.116 In Savage,
plaintiff brought suit when she was 27 years old, alleging that she
suffered tooth discoloration due to the use of tetracycline as a
child. The plaintiff testified that when she was nine or ten years
113. Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. Div. 1972).
114. Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. Div. 1972).
115. Rankin v. Sowinski, 119 N.J. Super. 393, 401 (App. Div. 1972).
116. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417 (App. Div.
1992), aff’d,
134 N.J. 241 (1993).
old, her mother told her that the discolored teeth may have
been caused by taking antibiotics as a child. Plaintiff’s mother
testified that she was informed by one of the plaintiff’s childhood
dentists that the discoloration was most likely due to antibiotics
her daughter received as a child. Plaintiff conceded that in her
teens and twenties she understood the correlation between the
administration of the antibiotics and her discolored teeth but that
she was not aware of the potential claim for such damages until
she saw a 1988 advertisement by a lawyer regarding legal actions
for such claims.
The trial court dismissed the case due to plaintiff’s failure to file suit
within two years of the reaching of the age of majority, concluding
that plaintiff was aware that the medication given to her may have
caused the discoloration. In reversing, the Appellate Division first
noted that prior discovery rule cases fell into one of three categories:
(1) foreign objects left in a patient’s body; (2) cases where plaintiff is
aware of the damage, but not aware of the cause of the damage; and
(3) cases where plaintiff knows of the damage and has been advised
that there was no one at fault. The Appellate Division concluded
that Savage presented a fourth case, where plaintiff:
knew the fact and extent of her injury (the
tooth discoloration) and the causative agent (a
medication administered during childhood). There
apparently were no active efforts on the part of
the potential tortfeasors to mislead plaintiff or
her mother. What may differentiate this case from
the others, however, is that without being misled,
plaintiff may simply have had no reasonable basis
to equate the administration of the tetracycline to
the fault or wrongdoing of another. …
….
… In the case before us, plaintiff was aware of
causation in fact, but she was allegedly unaware
that there had been fault.117
117. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417, 421-22
(App.
Div. 1992), aff’d, 134 N.J. 241 (1993).
The Appellate Division therefore reversed, holding that the
accrual of the cause of action does not occur where the plaintiff
reasonably is unaware either that he had been injured, or that the
injury is due to the fault or neglect of an identifiable individual or
entity.118
In noting that the issue was whether plaintiff was “equitably
entitled to the benefit of the discovery rule,”119 the Appellate
Division remanded the case for a “balancing of plaintiff’s rights
against those of a potential defendant.” The court instructed:
The Lopez motion is not a motion for summary
judgment. The court thus cannot expect the
plaintiff to be prepared before discovery has been
concluded, to meet all defenses. A defendant,
however, may still come forward and show the
court that there is such little likelihood of plaintiff’s
success that equity should not permit defendant
to be put through the time and expense of a trial.
While such proofs may be unusual at a Lopez
hearing, the court should not cast a blind eye to the
realities of the situation before it. The trial judge
must apply an objective standard and determine
whether a reasonable person in plaintiff’s position
should have known that the drugs given to her as a
young child may have injured her through the fault
of another, and that thus she should have sought
appropriate professional assistance.120
The Supreme Court affirmed.121 Initially, the Supreme Court
noted that the “core meaning” of the discovery rule is the injured
party’s knowledge that the injuries were related to another person’s
conduct.122 The Court recalled that in Lopez, it held that the statute
of limitations was deemed to commence when the plaintiff knew
118. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417, 424 (App.
Div. 1992),
aff’d, 134 N.J. 241 (1993).
119. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417, 425 (App.
Div. 1992),
aff’d, 134 N.J. 241 (1993).
120. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417, 425-26
(App. Div.
1992), aff’d, 134 N.J. 241 (1993).
121. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241 (1993).
122. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 246 (1993).
not only of the illness but also its causal relationship with the
alleged negligence.123
‘Fault’ in the context of the discovery rule is simply
that it is possible—not provable or even probable—
that a third person’s conduct that caused the injury
was itself unreasonable or lacking in due care. In
other words, knowledge of fault does not mean
knowledge of a basis for legal liability or a provable
cause of action; knowledge of fault denotes only
facts suggesting the possibility of wrong doing.
Thus, knowledge of fault for purposes of the
discovery rule has a circumscribed meaning: it
requires only the awareness of facts that would
alert a reasonable person exercising ordinary
diligence that a third party’s conduct may have
caused or contributed to the cause of the injury
and that conduct itself might possibly have been
unreasonable or lacking in due care.124
The Court explained that “knowledge of injury plus knowledge of
cause” does not equal “knowledge of fault” and therefore the case
must be remanded to determine whether the plaintiff was negligent
in not becoming earlier aware of fault in the administration of the
medicine.125
Justice Clifford, in a strong dissent joined by Justices Pollock
and Garibaldi, recalled that in Burd v. New Jersey Telephone Co.,126
and Agar v. Lederle Laboratories,127 the statute of limitations was
triggered by knowledge of:
‘[T]hat state of facts which may equate in law with
a cause of action. There is no suggestion in any of
the leading cases in this area that accrual of the
cause of action is postponed until plaintiff learns
or should learn the state of law positing a right
123. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 246-47 (1993).
124. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 248 (1993).
125. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 249 (1993).
126. Burd v. N.J. Tel. Co., 76 N.J. 284 (1978).
127. Agar v. Lederle Labs., 123 N.J. 450 (1991).
of recovery upon the facts already known to or
reasonably knowable by the plaintiff.’128
A plaintiff must exercise diligence to investigate a potential
cause of action. This point was emphasized in Drazin v. Ortho
Pharmaceutical Corp.129 In Drazin, plaintiff experienced numbness
and burning in her hand in December 1973, and she attributed
these symptoms to the use of certain contraceptives. Plaintiff
sued two drug manufacturers in January 1975, alleging that the
contraceptives necessitated that she undergo two arterial bypass
operations. In August 1976, the plaintiff’s treating physician was
deposed and he testified that he was aware of certain side effects
of the drugs in April 1973, when he prescribed the contraceptives
to plaintiff. Plaintiff moved to amend her complaint to name the
physician, asserting that she was not aware of any possible cause of
action against the physician until the deposition.130 Plaintiff argued,
inter alia, that she was entitled to the benefit of the discovery rule,
citing Fernandi and Lopez.131 The court acknowledged that
plaintiff’s position is that she did not know nor
should she have known of any causal relationship
between her injury in December 1973 and the failure
of her physicians to advise her of the possible
dangerous side effect of the contraceptives.132
However, the court also noted that the plaintiff knew of her
injury in December 1973 and knew by April 1974 that there was
a possible relationship between the injury and the contraceptives.
The court also noted that the plaintiff always knew that the
doctors had not warned her of the possible side effects. The
court therefore concluded that the plaintiff was barred from
amending the complaint to name the physician by virtue of the
statute of limitations, because if the plaintiff had made even a
128. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 251 (1993)
(Clifford, J.
dissenting) (citing Burd v. N.J. Tel. Co., 76 N.J. 284, 291-92 (1978))
(emphasis removed).
129. Drazin v. Ortho Pharm. Corp., 148 N.J. Super. 56 (Law Div. 1977), aff’d
sub. nom.
Drazin v. Shanik, 171 N.J. Super. 76 (App. Div. 1979).
130. Drazin v. Ortho Pharm. Corp., 148 N.J. Super. 56, 58 (Law Div. 1977),
aff’d sub. nom.
Drazin v. Shanik, 171 N.J. Super. 76 (App. Div. 1979).
131. Drazin v. Ortho Pharm. Corp., 148 N.J. Super. 56, 58 (Law Div. 1977),
aff’d sub. nom.
Drazin v. Shanik, 171 N.J. Super. 76 (App. Div. 1979).
132. Drazin v. Ortho Pharm. Corp., 148 N.J. Super. 56, 61 (Law Div. 1977),
aff’d sub. nom.
Drazin v. Shanik, 171 N.J. Super. 76 (App. Div. 1979).
“perfunctory investigation” as to the nature of the contraceptives
in April 1974, she would have discovered the drug’s potentially
dangerous propensities. The court noted that the medications were
distributed with warnings and that the warnings were available
in the Physicians’ Desk Reference and pamphlets which are
distributed to physicians and made available to patients. The trial
court therefore concluded that the plaintiff knew or should have
known of the proposed claim in April 1974, and therefore, the
proposed amendment more than two years later was untimely and
must be denied with prejudice.133
However, there is authority for the proposition that the statute
of limitations should generally not be the grounds to deny plaintiff
the right to amend a complaint to add new parties. In Bernstein v.
Cheslock,134 plaintiff alleged that his wife died in February 1977
as a result of the negligence of the defendants in treatment of her
ovarian cancer. In July 1979, during the course of pretrial discovery,
plaintiff was advised that another physician, not named as a
defendant, was the doctor who actually prescribed the medications
which led to the death of his wife. Plaintiff immediately moved
to amend the complaint, but at the motion, the trial court raised
the issue of the statute of limitations and determined that, since
the name of this physician was discoverable more than two years
prior to the date of the motion to file the amended complaint, the
claim was barred by the statute of limitations. The motion court
therefore denied the plaintiff’s motion to amend the complaint. The
Appellate Division reversed, stating that in medical malpractice
cases, the determination required by the trial court pursuant to
Lopez, cannot be made on a motion to amend the complaint.135
It is our view that where a proposed amended
complaint, such as in the malpractice action here
involved, or the affidavit submitted in support of
the motion for leave to amend, sets forth at least
prima facie that the factual basis for the cause of
action sought to be asserted was not discovered or
133. Drazin v. Ortho Pharm. Corp., 148 N.J. Super. 56, 61-63 (Law Div.
1977), aff’d sub.
nom. Drazin v. Shanik, 171 N.J. Super. 76 (App. Div. 1979).
134. Bernstein v. Cheslock, 171 N.J. Super. 566 (App. Div. 1979).
135. Bernstein v. Cheslock, 171 N.J. Super. 566, 569-70 (App. Div. 1979).
reasonably discoverable prior to the expiration of
the statute of limitations, the fact-finding process
required of the trial judge would preclude the denial
of the motion to amend, since the determination at
that stage of the proceedings that plaintiff is not
entitled to invoke the discovery rule would clearly
be premature, bearing in mind the factors to be
considered as enumerated in Lopez v. Swyer, supra,
among which, it should be noted, is a showing by
defendant that he would be ‘peculiarly or unusually
prejudiced.’ See Fox v. Passaic General Hospital, 71
N.J. 122, 128 (1976).136
Thus, ordinarily plaintiff should be permitted to amend the
complaint and obtain discovery, and any attempt by the newly
added defendants to dismiss the case must be pursuant to a Lopez
hearing.
Fact of Injury, Not Injury’s Extent, Triggers
Statute of Limitations
It should be emphasized that it is the fact of injury, not the extent
of injury, which triggers the running of the statute of limitations.
This point was made clear in Silverman v. Lathrop,137 where plaintiff
alleged that the defendant failed to diagnose a tumor which
metastasized and caused the death of plaintiff’s decedent. The patient
first noticed a small dark spot on his leg in April 1972. He consulted
the defendant in July 1972 at which time defendant removed the
lesion but did not perform a biopsy. In October 1972, plaintiff’s
decedent returned to the defendant, who then became suspicious
of a malignant melanoma. A biopsy was taken and it confirmed the
diagnosis. Plaintiff’s decedent began treatment in November 1972.
In April 1975, a liver scan suggested that the plaintiff had metastatic
liver cancer. Plaintiff’s decedent immediately consulted with an
attorney who filed suit in October 1975. The plaintiff’s decedent died
in December 1975. The defendant moved for summary judgment as
to the survival claims pursuant to N.J.S.A. 2A:15-3 and -4. Plaintiff
contended that the statute of limitations did not begin to run until
136. Bernstein v. Cheslock, 171 N.J. Super. 566, 570 (App. Div. 1979).
137. Silverman v. Lathrop, 168 N.J. Super. 333 (App. Div. 1979).
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1975 when plaintiff’s decedent first consulted with counsel. In
rejecting the argument, the court relied on Burd v. N.J. Telephone
Co.138 The Appellate Division affirmed the trial court’s grant of
summary judgment:
[A]ll relevant facts were known to Silverman as
of December 1972 and therefore the action filed
on October 31, 1975 was out of time. … The
testimony clearly supports the trial judge’s finding
that by December 1972 [plaintiff] was well aware
of all the implications of his condition and of
defendant’s possible medical dereliction in not
obtaining a biopsy following the first excision
in July 1972. By December 1972, following his
radical surgery, defendant knew of his confirmed
diagnosis of malignant melanoma with a Stage II,
or regional, metastasis. The fact that the terminal
metastasis to the liver was not medically confirmed
until June 1975 did not defer the ripening of
the cause of action until that time. This fact of
terminal metastasis to the liver goes to the extent
of damages, not to the accrual of the cause of
action for personal injury.139
Similarly, in Troum v. Newark Beth Israel Medical Center,140 the
plaintiff’s husband was given a blood transfusion in 1984. In April
1987, the plaintiffs were advised that the blood transfusion was
contaminated with the HIV virus, and the plaintiff’s husband tested
positive for the HIV virus at that time. The plaintiff testified that it
was not until 1989 that she and her husband realized someone may
be at fault for administering the tainted transfusion. The plaintiffs
brought suit in March 1990. However, shortly after bringing
suit, the plaintiffs decided to dismiss the case primarily because
Mr. Troum was suffering from depression “and did not want to
spend his remaining days fighting a contentious lawsuit.”141 The
case was dismissed in September 1990. In October 1990, the
138. Burd v. N.J. Tel. Co., 76 N.J. 284 (1978).
139. Silverman v. Lathrop, 168 N.J. Super. 333, 339-40 (App. Div. 1979).
140. Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1 (App. Div.
2000).
141. Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 11 (App. Div.
2000).
plaintiff’s husband was diagnosed with “full-blown AIDS.”142
The plaintiff’s husband died in June 1993 and she filed her suit in
September 1994, 15 months after her husband’s death.
After a verdict in favor of the plaintiff, the defendants appealed,
arguing that the statute of limitations began to run on the survival
claim when the decedent tested positive for HIV, not when the
decedent was diagnosed with AIDS. In reversing the verdict for the
survival claim in favor of plaintiff, the Appellate Division stated:
Because the medical evidence establishes that HIV
and AIDS occur as a seamless progression of a
single pathology, we reject plaintiff’s argument
that each condition is a separate and distinct illness
triggering a new statute of limitations. We hold that
the survival action accrued when plaintiff tested
positive for HIV and knew that his infection was
caused by another’s negligence.143
Increased Risk of Harm, Latent Disease, Cancer
Recurrence: Statute of Limitations Begins to Run
Only After Harm Occurs
While uncertainty regarding the extent of harm does not toll the
statute, uncertainty about whether a particular harm will arise at
all does toll the statute of limitations. Cases involving the delay
in the diagnosis and treatment of cancer or other diseases, for
example, often raise a common statute of limitations issue, since
the patient may not know that permanent damage has been caused
until the metastasis or other delayed manifestation of the disease
is discovered.
This issue was addressed in the context of a toxic tort case in
Ayers v. Jackson Township,144 where plaintiffs sought damages for
the contamination of their well water by toxic chemicals leeching
from a landfill operated by defendant. The Supreme Court noted
that the discovery rule tolls the statute of limitations until a victim
142. Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 10 (App. Div.
2000).
143. Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 6 (App. Div.
2000).
144. Ayers v. Jackson Twp., 106 N.J. 557 (1987).
discovers both the injury and the facts suggesting that a third party
may be responsible.145 The Court held:
[I]t is appropriate that all of the parties in interest
understand that neither the single controversy
doctrine nor the statute of limitations, N.J.S.A.
2A:14-2, will preclude a timely-filed cause of action
for damages prompted by the future ‘discovery’ of
a disease or injury related to the tortious conduct
at issue in this litigation. The bar of the statute of
limitations is avoided because, under New Jersey’s
discovery rule, the cause of action does not accrue
until the victim is aware of the injury or disease
and of the facts indicating that a third party is or
may be responsible.146
The Court further held that the entire controversy doctrine does
not apply since the cause of action “does not accrue until the
disease is manifested; hence, it could not have been joined with
earlier claims.”147
The courts have reached a similar conclusion in the medical
malpractice setting. Where the negligence has only increased the
risk of some harm in the future, such as a recurrence of cancer, but
the harm has not yet occurred, the cause of action does not begin
to accrue, and the statute of limitations does not begin to expire,
until the harm occurs. In Karol v. Berkow,148 plaintiff alleged that
the defendant failed to diagnose and treat a malignant melanoma.
The plaintiff saw the defendant in August 1983, complaining
about a mole, but the diagnosis of a malignant melanoma was
not made until August 1984. Plaintiff filed suit within two years
of the date of discovery of the melanoma, and plaintiff’s expert
testified that the one year delay in diagnosis increased plaintiff’s
chance of dying from 3 percent to 23 percent. Since plaintiff had
no clinical evidence of recurrence, the complaint was dismissed
without prejudice. In 1989, plaintiff was diagnosed with metastatic
malignant melanoma. In February 1991, plaintiff filed a new
145. Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987).
146. Ayers v. Jackson Twp., 106 N.J. 557, 583 (1987).
147. Ayers v. Jackson Twp., 106 N.J. 557, 583 (1987).
148. Karol v. Berkow, 254 N.J. Super. 359 (App. Div. 1992).
complaint against the defendant alleging negligence in the diagnosis
of a melanoma. The defendant moved to dismiss based upon the
statute of limitations. The trial court dismissed, concluding that
the cause of action accrued in 1984, although plaintiff did not
know the full extent of his injury. The Appellate Division reversed,
noting that increased risk of harm cases permit plaintiff to recover
damages if the negligence increased the risk of a recurrence and
the increased risk was a substantial factor in bringing about the
condition from which plaintiff suffers.149 In concluding that the
cause of action does not accrue until the risk “becomes a reality,”150
the appellate court noted that the Supreme Court has refused to
recognize a cause of action for increased risk of
harm where the harm has not occurred and plaintiff
cannot quantify or otherwise show the likelihood
of future harm as a matter of probability.151
The Karol court therefore concluded, “the increased-risk-of-harm
cause of action did not accrue until the apprehended harm—the
metastasis—became a reality in 1989.”152
In Campo v. Tama,153 plaintiff alleged that the defendant
negligently failed to diagnose breast cancer. The plaintiff was
examined by the defendant in March 1985 and the defendant
diagnosed fibrocystic breast disease. She was sent for a mammogram
that disclosed microcalcifications, and plaintiff was again examined
by the defendant in October 1985 and in March 1986. At the last
examination plaintiff advised the defendant that her breast was
so tender she could not lie on her stomach. The plaintiff was sent
for another mammogram and a follow-up biopsy that disclosed
a malignant tumor. She thereafter underwent a modified radical
mastectomy, involving removal of the breast, underlying muscle
and lymph nodes. The tumor had metastasized to one lymph node
and plaintiff underwent six months of chemotherapy. The Court
noted that there was no recurrence of the cancer in the intervening
149. Karol v. Berkow, 254 N.J. Super. 359, 362-63 (App. Div. 1992) (citing
Evers v. Dollinger,
95 N.J. 399 (1984)).
150. Karol v. Berkow, 254 N.J. Super. 359, 363 (App. Div. 1992).
151. Karol v. Berkow, 254 N.J. Super. 359, 367 (App. Div. 1992).
152. Karol v. Berkow, 254 N.J. Super. 359, 367-68 (App. Div. 1992).
153. Campo v. Tama, 133 N.J. 123 (1993).
NJ MedMal_FullBook.indb 803 5/27/14 5:41:22 PM
seven years. Although the jury found the defendant physician not
negligent, the Court addressed the viability of a claim for recurrence
of cancer. The Court advised that if the cancer recurred, “the
claim could be asserted if and when the disease occurred. Neither
the statute-of-limitations or the single-controversy doctrine would
preclude the claim.”154
Discovery of Proper Defendant
Amended Complaint Relates Back
An amended complaint filed soon after discovery of the
identity of the defendant will relate back to the filing of the initial
complaint. In Brown v. Kennedy Memorial Hospital,155 the court
affirmed the denial of a motion to dismiss based upon the statute
of limitations. The court concluded that the plaintiff first learned
of the new defendant’s identity during the deposition of a codefendant
and immediately filed a motion to substitute the moving
defendant for a previously fictitiously named defendant. The court
noted that the hospital records were mostly illegible.156 Although
the new defendant’s name did appear in a typewritten discharge
summary and in another instance the name was fairly clear in the
medical record, the Appellate Division cited the fact that
a named defendant has misled and deceived
plaintiff. See Viviano v. CBS, Inc., 101 N.J. 538, 544
(1986). Here, named defendants failed to specifically
answer interrogatories when asked the names of all
treating physicians but referred plaintiff to hospital
records. Additionally, Abraham, who practiced
medicine with Cohen, a named defendant, could
point to no prejudice arising from late service of
process. Clearly, Abraham knew that plaintiff
had instituted suit against his medical associate
Cohen. The doctrine of relation back is applicable
154. Campo v. Tama, 133 N.J. 123, 130 (1993) (citing Ayers v. Jackson Twp.,
106 N.J. 557,
583 (1987)).
155. Brown v. Kennedy Mem’l Hosp., 312 N.J. Super. 579 (App. Div. 1998).
156. Brown v. Kennedy Mem’l Hosp., 312 N.J. Super. 579, 587 (App. Div.
1998).
particularly where there is no prejudice to the late
identified defendant.157
The court then noted that a fourth amended complaint dated
back to the filing of the initial complaint, because: “only distinctly
new or different claims are barred, not those pertaining to the
same subject matter.”158 The Appellate Division concluded that
the allegations in the fourth amended complaint, dealing with
the failure to obtain consultations, arose out of the same conduct
referred to in the original complaint.
An interesting analysis of the relation back doctrine is found
in Lombardi v. Simon,159 where plaintiff brought suit alleging that
the negligence of an anesthesiologist caused the death of his son.
In the initial complaint, plaintiff named Dr. Wen-Hong Chen,
the anesthesiologist plaintiff thought was responsible. Plaintiff
amended the complaint to name Dr. Te-Hong Chen, the actual
anesthesiologist, as a defendant, but the amended complaint was
not filed within two years of the date of his son’s death. The new
defendant, Dr. Te-Hong Chen, moved for summary judgment
based upon the two year statute of limitations in the Wrongful
Death Act.
The court held that the amended complaint related back to the
date of the initial complaint which was timely filed. The court noted
that in order for a complaint to relate back, three factors must be
satisfied: (1) the claim in the amended complaint must have arisen
out of the conduct complained about in the initial complaint;
(2) the new defendant has sufficient notice so as not to be prejudiced;
and (3) the new defendant knew or should have known but for the
misidentification that suit would have been brought against the new
defendant. The court noted that the first element was obviously
satisfied. The court also held that the second and third elements
were satisfied since it was
reasonably foreseeable that all the doctors present
when Mr. Lombardi died on the operating
table would expect a wrongful death suit to be
forthcoming. Thus, defendant, Te-Hong Chen
157. Brown v. Kennedy Mem’l Hosp., 312 N.J. Super. 579, 588 (App. Div.
1998).
158. Brown v. Kennedy Mem’l Hosp., 312 N.J. Super. 579, 589 (App. Div.
1998).
159. Lombardi v. Simon, 266 N.J. Super. 708 (Law Div. 1993).
received sufficient notice of the wrongful death
claim.160
The court also concluded that there would be no prejudice to the
defendant since both of the anesthesiologists practiced out of the
same office and had the same insurance carrier. The court therefore
concluded that the claim was timely.
In Walker v. Choudhary,161 the Appellate Division examined the
interaction between the statute of limitations and the “relationback”
doctrine as provided by New Jersey Court Rule 4:9-3.
The plaintiff alleged that the negligence of the defendants during
decedent’s treatment at the hospital November 30, 2005 resulted in
her decedent’s death on December 5, 2005.The plaintiff filed suit
on November 20, 2007, against a hospital, three doctors employed
in the emergency department of the hospital, and the medical
practice group that employed the physicians. After learning that
Dr. Kiger was actually the ER doctor treating defendant, on
February 28, 2008, the plaintiff’s attorney filed a motion to amend
the complaint to add Dr. Kiger as a defendant, and on April 10,
2008, the plaintiff filed an amended complaint naming Dr. Kiger
as a defendant.162
Dr. Kiger moved to dismiss based upon the statute of limitations,
which was granted on August 1, 2008. The medical group that
employed Dr. Kiger then successfully moved for summary
judgment dismissing claims of vicarious liability for Dr. Kiger’s
negligence.163
On appeal, the plaintiff asserted that the claims plaintiff sought
to assert against Dr. Kiger should have been deemed to relate back
to the filing date of the original complaint pursuant to New Jersey
Court Rule 4:9-3. In reversing, the appellate panel observed that
this rule
requires a determination of whether, during the
limitations period, the party to be joined ‘received
such notice of the institution of the action that
the party will not be prejudiced in maintaining
160. Lombardi v. Simon, 266 N.J. Super. 708, 714 (Law Div. 1993).
161. Walker v. Choudhary, 425 N.J. Super 135 (App. Div. 2012).
162. Walker v. Choudhary, 425 N.J. Super 135, 140-41 (App. Div. 2012).
163. Walker v. Choudhary, 425 N.J. Super 135, 141 (App. Div. 2012).
a defense on the merits[.]’ Ibid. The rule’s scope
allows for a plaintiff to add a defendant to an action
for a claim that has since become time-barred so
long as the new defendant ‘had such notice, albeit
informal, of the action prior to the running of the
statute of limitations that he [or she] would not be
prejudiced in maintaining his [or her] defense on
the merits.’ Pressler & Verniero, Current N.J. Court
Rules, comment 4 on R. 4:9-3 (2012). Additionally,
the remaining aspect of Rule 4:9-3 to be considered
is whether a defendant must have known or should
have known within the statute of limitations period
that but for the plaintiff’s mistake in not naming
her as a defendant, the action would have been
brought against her personally. See ibid.164
The Appellate Division, noting that Dr. Kiger was employed by
the same medical group as the original individual defendants, cited
Dr. Kiger’s deposition testimony
which revealed that she may have had knowledge of
the lawsuit prior to the expiration of the statute of
limitations. When asked whether she had spoken to
Choudhary about the case, Kiger replied that she
had, ‘[a]pproximately two years ago to a year ago
at the time the papers were served.’ Again, when
Kiger was asked whether she had spoken with
Diorio about the case, she replied that she had,
‘[w]hen he was first served.’ This testimony, while
not conclusive as to whether Kiger had knowledge
of the lawsuit prior to the expiration of the statutory
period, clearly contradicts her certification in
support of her motion for summary judgment.
… Because Kiger’s deposition testimony
contradicted her certification, the motion judge
should have conducted an evidentiary hearing,
of the type prescribed by Lopez v. Swyer, 62 N.J.
267 (1973), to determine when Kiger first learned
164. Walker v. Choudhary, 425 N.J. Super 135, 143 (App. Div. 2012).
about the pending litigation and whether the late
filing prejudiced her defense.165
The Appellate Division explained that in Lopez, the
Supreme Court has stated that while ‘[i]t is true
that the time of discovery is a question of fact,’ it
should be determined by ‘a judge conscious of the
equitable nature of the issue before him.’166
The Appellate Division also rejected the notion that dismissal of
Dr. Kiger on limitations grounds was justified because
she was mentioned as decedent’s physician in the
medical records ‘prominently in two other places,’
and that ‘this is not a case where there were scores of
pages of medical records and somewhere obscurely
in the middle of that ... Kiger was mentioned.’167
The court added:
Here, there appears little doubt that decedent’s
records disclosed Kiger’s identity as decedent’s
treating physician before plaintiff ultimately sought
to join her after the passage of the limitations
period set forth in N.J.S.A. 2A:31-3 and N.J.S.A.
2A:14-2. Although Diorio was listed as decedent’s
admitting and attending physician on a single
page of Healthcare’s records, Kiger’s identity as
decedent’s treating physician was indeed displayed
in decedent’s medical records in several places.
Plaintiff’s knowledge of the identity of Kiger
suggests that she was not joined because of the
error or omission of plaintiff or plaintiff’s attorney.
The motion judge’s decision did not discuss these
circumstances or whether the failure to timely join
Kiger constituted the type of mistake encompassed
by Rule 4:9-3. On remand, the judge should
165. Walker v. Choudhary, 425 N.J. Super 135, 144 (App. Div. 2012).
166. Walker v. Choudhary, 425 N.J. Super 135, 144 (App. Div. 2012) (quoting
Lopez v.
Swyer, 62 N.J. 267, 274-75 (1973)).
167. Walker v. Choudhary, 425 N.J. Super 135, 145 (App. Div. 2012).
consider and determine the reasons for plaintiff’s
failure to timely join Kiger.168
The Appellate Division reiterated:
[T]he trial judge must be mindful of our Supreme
Court’s instruction that Rule 4:9-3 ‘should be
liberally construed.’ Kernan v. One Washington
Park Urban Renewal Assocs., 154 N.J. 437, 458
(1998) (quoting Harr v. Allstate Ins. Co., 54
N.J. 287, 299 (1969)). As such, the rule’s goal of
permitting a party to correct ‘pleading errors’ or
to respond to the ‘acquisition of new information’
should be served so long as a defendant’s ‘right
to rely on the repose afforded by the statute of
limitations’ is not unduly offended. Ibid. (quoting
Wimmer v. Coombs, 198 N.J. Super. 184, 188 (App.
Div. 1985)). The rule guides the accommodation
of these competing interests by recognizing that a
person who has timely notice of a pending action
cannot reasonably object to the late assertion
against him ... provided he is reasonably
chargeable with the knowledge that those other
claims would have been timely asserted against
him but for plaintiff’s error ... and provided
further that the late assertion does not prejudice
him in maintaining his defense.169
The appellate panel therefore remanded to the motion judge to
analyze the factual questions that emanate from
plaintiff’s attempt to have the proposed amended
complaint relate back to the original filing date….
On remand, if the judge finds that Kiger, within
the statutory period (on or before December 5,
2007), had received such notice of the institution
of the action that she will not be prejudiced in
maintaining a defense on the merits and knew or
should have known but for the mistake concerning
168. Walker v. Choudhary, 425 N.J. Super 135, 145-46 (App. Div. 2012).
169. Walker v. Choudhary, 425 N.J. Super 135, 146 (App. Div. 2012).
NJ MedMal_FullBook.indb 809 5/27/14 5:41:23 PM
her identity the action would have been brought
against her, the motion to amend the complaint
should be granted. R. 4:9-3. If the judge does not
so determine, but concludes that the complaint filed
against the practice group and Kiger’s colleagues
should have included her but for plaintiff’s
good faith mistake or omission and Kiger is not
prejudiced, he should consider relaxing the rule’s
application in the interest of justice and granting the
motion to amend. See Aruta, supra, 134 N.J. Super.
at 529 (finding Rule 4:9-3 unduly confining and
‘relax[ing]’ its application in circumstances where a
plaintiff would be otherwise barred by the statute
of limitations even though he/she ‘presumably in
good faith and with some justification served parties
believed to be the correct parties’); R. 1:1-2. See also
Viviano v. CBS, Inc., 101 N.J. 538, 551-52 (1986)
(acknowledging the ‘liberal construction’ of Rule
4:9-3 to permit joinder of additional parties after
the expiration of the period of limitations).170
In concluding the court instructed:
Given the contradictory assertions as to when Kiger
learned about the litigation, it appears that this
issue cannot be resolved on affidavits or depositions
since demeanor may be an important factor in the
judge making his credibility findings. On remand,
the judge should consider the totality of the
circumstances in arriving at the decision whether
the ‘relation-back’ doctrine saves plaintiff’s claim
against Kiger. R. 4:9-3. The motion judge should
conduct a Lopez hearing as was, for example, found
appropriate in Aruta, supra, 134 N.J. Super. at 530.
As part of the process, the judge should consider
determining the reasons for plaintiff’s failure to
timely join Kiger and any assertions by Kiger
that the delay prejudiced her defense. However,
170. Walker v. Choudhary, 425 N.J. Super 135, 147 (App. Div. 2012).
prejudice is unlikely, in this context, because the
practice group and other doctors within the group
were also sued within the statutory period.171
Due Diligence Required
The discovery rule requires the exercise of due diligence in
discovering the proper defendants. The Appellate Division
explained this obligation in Johnston v. Muhlenberg Regional
Medical Center,172 where plaintiff’s decedent died on December 7,
1993. The complaint was filed on August 16, 1995 and a number
of fictitious defendants were named pursuant to New Jersey Court
Rule 4:26-4. The hospital records revealed that the physician who
performed a lumbar puncture was Dr. Guha, although the name
was illegible. The initial complaint alleged that fictional defendants
including “unidentified medical personnel … of the defendant
Muhlenberg Regional Medical Center” were negligent.173 None
of the named defendants, including the hospital and “a physician
associated with Dr. Guha in a medical practice” identified
Dr. Guha by name as a person who participated in treating
plaintiff’s decedent until April 1996, when Dr. Guha’s name was
provided by Dr. Fishberg’s answers to interrogatories.
In August 1996 plaintiff moved for leave to file an amended
complaint to name Dr. Guha as a defendant. The motion was
granted in September 1996 and an amended complaint was filed
in November 1996. The summons was issued in March 1997, but
by that time, all of the other defendants had been dismissed from
the case. Dr. Guha’s answer was filed in August 1997. The trial
court granted Dr. Guha summary judgment, holding that the
plaintiff failed to use due diligence to discover this defendant’s
involvement in the case and then bring this defendant into the
case. The trial court noted that the entire case “centered around
this lumbar puncture procedure” and that plaintiff could have
ascertained the identity of the surgeon who performed the
procedure much sooner than three years after the operation. The
Appellate Division agreed with the trial court and emphasized
171. Walker v. Choudhary, 425 N.J. Super 135, 147-48 (App. Div. 2012).
172. Johnston v. Muhlenberg Reg’l Med. Ctr., 326 N.J. Super. 203 (App. Div.
1999).
173. Johnston v. Muhlenberg Reg’l Med. Ctr., 326 N.J. Super. 203, 205 (App.
Div. 1999).
that a party must use due diligence “in perfecting her claim against
Dr. Guha after learning her identity.”174 The court noted:
[E]ven if we were to give substantial weight to
plaintiff’s contention that other defendants,
including the hospital and Dr. Guha’s associate
in practice were ‘stonewalling’ on the question of
her identity, we can discern no excuse for plaintiff’s
inattention to her suit obligations following her
discovery of Dr. Guha’s identity. We have been
given no explanation for the expiration of almost
four months from that date before plaintiff moved
for leave to amend the complaint, two and half
months more after the motion was granted until
the complaint was filed, four additional months
after filing until the issuance of the summons, and
some undisclosed further period before service was
effected.175
The court therefore affirmed the dismissal.
The Supreme Court has also emphasized that a plaintiff must
exercise due diligence to identify the proper defendants to a lawsuit.
In Matynska v. Fried,176 the plaintiff filed suit against several
doctors and the Robert Wood Johnson University Hospital. The
plaintiff named several fictitious defendants but did not name
Dr. Mark Feierstein, who performed hospital rounds for three
days after the plaintiff’s surgery. The plaintiff asserted she had
not met Dr. Feierstein and did not know of his role in her care.
The plaintiff did not file a motion to name Dr. Feierstein as a
direct defendant until more than four years after the surgery and
more than two years after she initially filed suit. The trial court
denied the motion and the Appellate Division and Supreme Court
affirmed. The Supreme Court based its decision on the conclusion
that the plaintiff did not make adequate efforts to discover the role
of Dr. Feierstein. The Court observed that Dr. Feierstein’s name
appeared twice in the chart as someone who had participated in
174. Johnston v. Muhlenberg Reg’l Med. Ctr., 326 N.J. Super. 203, 207 (App.
Div. 1999).
175. Johnston v. Muhlenberg Reg’l Med. Ctr., 326 N.J. Super. 203, 207-08 (App.
Div. 1999).
176. Matynska v. Fried, 175 N.J. 51 (2002).
the care of the plaintiff. “In short, Matynska failed to cross the due
diligence threshold, and thus the lower courts properly denied her
right to amend the complaint.”177
However, the Supreme Court criticized the “tactics” of
defense counsel. “Sharp practice came into play in the answers
to interrogatories and in Dr. Fried’s dissembling responses to
the questions propounded during depositions.”178 The Court
concluded that certain defendants provided answers calculated
to mislead the plaintiff, “thus paving the way for the so-called
‘empty chair defense.’ ”179 The Court admonished: “We abhor such
tactics, which, in an appropriate case, could well be considered
lulling, if not deliberate concealment.”180 Nevertheless, the Court
concluded that because the plaintiff failed to properly investigate
Dr. Feierstein’s involvement “in a diligent and timely fashion,
the defense’s later tactics are not material to our disposition. We
nevertheless caution attorneys to avoid such conduct or risk the
potential consequences.”181
Application of Discovery Rule to Cases
The application of the discovery rule has been the focus of many
cases. In Parete v. Mully,182 plaintiff went to the defendant for
dental treatment in January 1988. In June 1989 plaintiff consulted
another dentist because she suspected the defendant “might
have made a mistake.”183 The second dentist did not want to get
involved and told plaintiff to go back to the defendant. Plaintiff
subsequently saw two other dentists because she “still felt that
[the defendant] did something wrong.”184 These dentists did not
advise plaintiff that the defendant had committed malpractice. In
July 1990 plaintiff visited another dentist because she continued
to believe the defendant “had done something wrong.”185 Plaintiff
177. Matynska v. Fried, 175 N.J. 51, 53 (2002).
178. Matynska v. Fried, 175 N.J. 51, 53 (2002).
179. Matynska v. Fried, 175 N.J. 51, 53 (2002).
180. Matynska v. Fried, 175 N.J. 51, 53 (2002).
181. Matynska v. Fried, 175 N.J. 51, 54 (2002).
182. Parete v. Mully, 316 N.J. Super. 100 (App. Div. 1998).
183. Parete v. Mully, 316 N.J. Super. 100, 104 (App. Div. 1998).
184. Parete v. Mully, 316 N.J. Super. 100, 104 (App. Div. 1998).
185. Parete v. Mully, 316 N.J. Super. 100, 104 (App. Div. 1998).
claimed that she was advised at this time that the defendant had
committed malpractice. Plaintiff contended that in March 1992 an
expert retained for litigation advised her of additional malpractice.
The plaintiff filed suit in April 1992. The trial court dismissed the
case, concluding that the statute began to run in June 1989 when
plaintiff believed the defendant had made a mistake.186
The Parete court began the analysis by noting that the Supreme
Court stated in Baird v. American Medical Optics,187 that the
statute of limitations begins to run when the plaintiff is aware
that she has sustained injuries as the result of the fault of an
identifiable person.188 The Appellate Division observed that
none of the doctors that plaintiff consulted prior to March 1992
advised her that the defendant had committed malpractice. The
court also observed that the defendant advised the plaintiff that
“God would take care” of her pain and that the teeth would “settle
in.”189 The Parete court relied on Abboud v. Viscomi190 and Lynch v.
Rubacky,191 where the doctors had reassured the plaintiff that she
was recovering.
The court then observed that the discovery rule is a rule of equity
and the decision as to when a claim accrues requires more than
simple factual determinations.192 The court added that the
merits of the statute of limitations defense in a case
such as this, involving the discovery rule, depend
upon the unique facts of the case regarding when
the cause of action ‘accrued.’ The factual issue
can generally be resolved only after discovery is
completed.193
The Appellate Division concluded that the case must be
remanded so that the trial court could “consider the impact of
186. Parete v. Mully, 316 N.J. Super. 100, 105 (App. Div. 1998).
187. Baird v. Am. Med. Optics, 155 N.J. 54 (1998).
188. Parete v. Mully, 316 N.J. Super. 100, 106 (App. Div. 1998) (citing Baird
v. Am. Med.
Optics, 155 N.J. 54, 69 (1998)).
189. Parete v. Mully, 316 N.J. Super. 100, 107 (App. Div. 1998).
190. Abboud v. Viscomi, 111 N.J. 56 (1988).
191. Lynch v. Rubacky, 85 N.J. 65 (1981).
192. Parete v. Mully, 316 N.J. Super. 100, 107 (App. Div. 1998).
193. Parete v. Mully, 316 N.J. Super. 100, 107 (App. Div. 1998).
plaintiff’s continued treatment with the defendant in determining
when the cause of action accrued.”194
The Appellate Division and Supreme Court re-examined the
application of the discovery rule in Gallagher v. Burdette-Tomlin
Memorial Hospital.195 In Gallagher, plaintiff had surgery in May
1994 and suffered post-operative complications. In May 1995,
plaintiff filed suit against some of her doctors. Plaintiff added
additional defendants in October 1995 and April 1996. Plaintiff
supported the claims against the then-named defendants with
the reports of various experts who opined that the then-named
defendants had deviated from the generally accepted standards of
care. One of the defendant’s experts was deposed in October 1997,
and as the Appellate Division noted:
During her testimony, Dr. Jacobs suggested, for
the first time, malpractice (untreated osteomyelitis)
on the part of Drs. Goldstein and Phillips, the
physicians who had been treating Mrs. Gallagher
for the complications of her surgery. No expert
up to that point had expressed any criticism or
concern or raised any issue of malpractice against
Drs. Goldstein and Phillips or their group.196
Plaintiff thereafter amended the complaint again to name Drs.
Goldstein and Phillips, who moved to dismiss the complaint based
on the statute of limitations. The trial court denied the motion and
the Appellate Division granted leave to appeal and affirmed.
The Gallagher court first reviewed the discovery rule, noting that
in Lopez the Supreme Court sought to avoid the “‘harsh results
that would otherwise flow from the mechanical application’ of
the statute of limitations.”197 The Appellate Division also noted
the Supreme Court’s statement in Baird v. American Medical
Optics:198
194. Parete v. Mully, 316 N.J. Super. 100, 109 (App. Div. 1998).
195. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485 (App. Div.
1999),
aff’d, 163 N.J. 38 (2000).
196. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 492 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
197. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 492 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
198. Baird v. Am. Med. Optics, 155 N.J. 54 (1998).
Critical to the running of the statute is the injured
party’s awareness of the injury and the fault of
another. The discovery rule prevents the statute
of limitations from running when injured parties
reasonably are unaware that they have been
injured, or, although aware of an injury, do not
know that the injury is attributable to the fault of
another.199
The Gallagher court specifically rejected the defendant’s
argument that because the plaintiff had all of the facts, the statute
of limitations against the last named defendants had expired.
The Gallagher court distinguished Burd v. New Jersey Telephone
Company,200 Savage v. Old Bridge-Sayreville Medical Group,201 and
Silverman v. Lathrop,202 upon which the defendants relied.
[T]he cases turn not wholly upon what records
or documents are in a plaintiff ’s possession, but
upon what a reasonable person would make of
that material. Burd had every reason to connect
his inhalation of glue to his heart attack given his
symptoms upon each inhalation. Silverman knew
several months after his physician had failed to send
an excised mole for biopsy that it was a malignant
melanoma. Savage knew the manufacturer of
the tetracycline drug could be liable, but had no
reason to think her doctors administered the drug
wrongly, despite having all her medical records. In
each case, the applicability of the discovery rule
turned upon whether a reasonable person would
have known, based on what occurred and on the
records, that his or her injury was due to the fault
of another.203
199. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 493 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
200. Burd v. N.J. Tel. Co., 76 N.J. 284 (1978).
201. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241 (1993).
202. Silverman v. Lathrop, 168 N.J. Super. 133 (App. Div. 1979).
203. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 495-96
(App. Div.
1999), aff’d, 163 N.J. 38 (2000).
The Gallagher court acknowledged that the statute of limitations
does not begin to run until an expert renders an opinion that a
defendant was negligent.204
This is a far cry, however, from suggesting that
where the relationship between a plaintiff’s injury
and a defendant’s fault is not self-evident and
there is nothing else in the record warranting the
conclusion that plaintiff should have made that
linkage, that belated receipt of an expert’s report
cannot trigger operation of the discovery rule.205
Thus where “a plaintiff knows she has been injured but fault is
not self-evident or implicit in the injury itself, it must be shown
that a reasonable plaintiff would have been aware of such fault in
order to bar her from invoking the discovery rule.”206
The Gallagher court explained that a contrary result would
conflict with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27,
and place “lawyers and litigants in an untenable position with
respect to that statute which requires an affidavit of merit by a
plaintiff in a professional malpractice case.”207
The Supreme Court affirmed the Appellate Division’s
decision.208 The Court explained that invocation of the discovery
rule will depend on the “type of case.”209 “This ‘type of case’
involving medical causation demands special attention due to the
intrinsic hardship facing a potential medical malpractice claim in
determining fault.”210 The Gallagher Court rejected the defendants’
reliance on Baird v. American Medical Optics,211 stating that Baird
did not create
204. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 496 (App.
Div. 1999)
(citing Graves v. Church & Dwight Co., 115 N.J. 256 (1989)), aff’d, 163 N.J. 38
(2000).
205. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 496 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
206. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 496 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
207. Gallagher v. Burdette-Tomlin Mem’l Hosp., 318 N.J. Super. 485, 499 (App.
Div. 1999),
aff’d, 163 N.J. 38 (2000).
208. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38 (2000).
209. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43 (2000).
210. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43 (2000).
211. Baird v. Am. Med. Optics, 155 N.J. 54 (1998).
a new bright-line discovery rule for medical
malpractice cases that starts the statute of
limitations running for all potentially responsible
parties when a patient knows that she has been
injured and knows or has reason to know that
someone has probably been at fault. Defendant
relies on the language in Baird: ‘The discovery rule
prevents the statute of limitations from running
when injured parties reasonably are unaware that
they have been injured, or, although aware of the
injury, do not know that the injury is attributable
to the fault of another.’ … We disagree that that
generic statement was ever intended to mean that
statutes of limitations could not run at different
times for different defendants.212
The Gallagher Court held that the statute of limitations could
run at different times for different defendants.213 The Court gave
the example of a patient who sues a doctor for malpractice arising
out of surgery.
Assume that more than two years after the initial
surgery, the patient undergoes corrective surgery at
which time it is discovered that an object was left in
her knee by one other than the surgeon whom she
had sued. Would such a claim be precluded by the
language in Baird? We think not.214
The Gallagher Court concluded that when the patient is unaware
that “the injury was due to the fault or neglect of an identifiable
individual or entity,”215 the patient is entitled to rely on the discovery
rule.
No readily apparent indication of Drs. Phillips
and Goldstein’s potential contribution to the
patient’s medical deterioration materialized until
[Dr. Steeb’s expert] brought the failure to treat
plaintiff’s infection to light. Competent experts
212. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43 (2000).
213. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43 (2000).
214. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 43 (2000).
215. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 44 (2000).
retained by [plaintiff] did not express any opinion
on the care and treatment of plaintiff provided by
Drs. Phillips and Goldstein.216
The Court emphasized, “The unfairness of denying plaintiff
leave to amend her complaint was compounded in this case by the
discovery posture taken by the initial defendants.”217 The Court
observed that although plaintiff filed suit in May 1995, the initial
defendants did not contend, prior to the expiration of the statute
of limitations, that any other doctor may be liable:
Not until the statute of limitations had passed
did Dr. Steeb’s expert suggest the fault of the
after-care physicians. Invoking the principles of
Young v. Latta, 123 N.J. 584 (1991) (that require
parties seeking to diminish their share of fault to
‘give prompt notice’), the trial court reasoned that
it would be especially unfair to deny plaintiff the
benefit of the discovery rule.218
The Supreme Court reached the same conclusion in Mancuso v.
Neckles,219 which was decided the same day as Gallagher. In
Mancuso, the defendant, Dr. Beinart, interpreted mammograms
in 1988 and 1989 as revealing a benign cyst. In 1991, the
plaintiff had a mammogram that revealed abnormalities, and
the radiologist recommended follow-up, but the defendant,
Dr. Neckles, failed to order any follow-up studies. In July 1992, the
plaintiff had a mammogram, which revealed that she had cancer.
In December 1992, the plaintiff learned of the abnormalities
in the 1991 mammogram and that Dr. Neckles had ignored
the recommendation for follow-up. In June 1993, the plaintiff
consulted an attorney. In June 1994, the attorney consulted with
an expert who opined that Dr. Neckles committed malpractice in
1991. In July 1994, the plaintiff filed suit against Dr. Neckles. In
April 1996, Dr. Neckles’ expert submitted a report stating that the
1989 mammogram revealed “a possible malignancy.” This was the
first indication that Dr. Beinart may have committed malpractice.
216. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 44 (2000).
217. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 44 (2000).
218. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38, 44 (2000).
219. Mancuso v. Neckles, 163 N.J. 26 (2000).
In November 1996, plaintiff’s attorney consulted with another
expert who stated that Dr. Beinart committed malpractice. In July
1997, five years after the plaintiff learned that she had cancer, she
filed an amended complaint naming Dr. Beinart as a defendant.
The trial court dismissed the claim against Dr. Beinart and the
Appellate Division affirmed.220 In allowing the case to proceed, the
Supreme Court first explained that the application of the discovery
rule depends on the “type of case.”221
This ‘type of case’ involving medical malpractice
requires special focus on the ‘nature of the
information’ possessed by the claimant. … In cases
of complex medical causation, it is not at all selfevident
that the cause of the injury ‘was (a) the
fault of (b), a third party. Not only is the nature
of the injury generally unclear, its very existence
is frequently masked.’ In that context of masked
injury and complex causation more is required
than suspicion—in the sense of an uninformed
guess or of speculation without some reasonable
medical support—of a causal connection between
a physical condition and chemical exposure [to
start] the running of the statute of limitations.222
The Court added:
In order to start the statute of limitations running
in this context of medical malpractice, more is
required than mere speculation or an uninformed
guess ‘without some reasonable medical support’
that there was a causal connection between Pia
Mancuso’s condition and Dr. Beinart’s conduct.223
The Mancuso Court emphasized that the plaintiff was not
dilatory and expressly rejected the Appellate Division’s analysis
that plaintiff should have ‘second guessed’ her experts. “Could or
should she have insisted that her attorney seek further experts, and
if so, how many? Lawyers retaining expert witnesses do not target
220. Mancuso v. Neckles, 316 N.J. Super. 128 (App. Div. 1998), rev’d, 163 N.J.
26 (2000).
221. Mancuso v. Neckles, 163 N.J. 26, 34 (2000).
222. Mancuso v. Neckles, 163 N.J. 26, 34 (2000) (bracketed material in
original).
223. Mancuso v. Neckles, 163 N.J. 26, 34 (2000).
the expert on a particular defendant, theory or cause of action.
They seek the best advice possible.”224
The Mancuso Court observed that plaintiff’s counsel was
constrained by the rules of professional conduct that bar filing
suit “unless the lawyer knows or reasonably believes there is a
basis for doing so that is not frivolous.”225 The Court also cited the
Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, and noted that
the “ethical requirement of a good faith belief in an actionable
claim is reinforced by the recent enactment of the Affidavit of
Merit Statute. N.J.S.A. 2A:53A-27.”226 The Court explained:
Thus, in addition to filing the action within two
years of its accrual, a claimant must also have in
hand or be able to obtain within 60 days the expert’s
opinion pursuant to the Affidavit of Merit Statute;
otherwise the claim is precluded. Realistically, most
attorneys and parties will want to have the report
in hand before filing suit.227
The Court therefore held that the plaintiff’s claim against
Dr. Beinart should have been permitted to continue.
Applying these principles, we are satisfied that
Pia Mancuso was reasonably unaware, until the
1996 deposition, that her injury was possibly due
to the fault of Dr. Beinart. The ‘nature of the
information’ that she possessed did not suggest
that the spread of her cancer may have been due to
the fault of Dr. Beinart. In fact, two sets of medical
professionals had confirmed that Dr. Beinart’s
initial diagnosis of a benign cyst in her right breast
was correct. Indeed, Pia Mancuso received years of
post-operative care from physicians at the worldrenowned
Memorial Sloan-Kettering Cancer
Center. Not one of those physicians alerted her to
the possibility of fault on behalf of Dr. Beinart.
224. Mancuso v. Neckles, 163 N.J. 26, 36 (2000).
225. Mancuso v. Neckles, 163 N.J. 26, 36 (2000) (citing Rule of Professional
Conduct 3.1).
226. Mancuso v. Neckles, 163 N.J. 26, 36 (2000).
227. Mancuso v. Neckles, 163 N.J. 26, 37 (2000).
The ‘quality of the requisite state of mind’ that she
possessed appeared blameless.228
The Mancuso Court concluded with the following instruction:
We are thus satisfied that when a patient has relied
on competent expert advice that one or more of
her treating physicians did not contribute to the
patient’s injuries, later assertions to the contrary by
a competent expert would then provide the basis
for an actionable claim.229
Thus, unless the defendant can meet the heavy burden of
demonstrating actual prejudice because of the delay, the plaintiff’s
claims should be permitted to proceed. Indeed, in Mancuso the
Court held that Dr. Neckle’s death did not meet the burden of
demonstrating actual prejudice.230 “Although Dr. Neckles has died,
his testimony is not crucial to this inquiry.”231
Similarly, in Martinez v. Cooper Hospital,232 also decided on the
same day as Gallagher and Mancuso, the Supreme Court restated
its commitment to the discovery rule. In Martinez, plaintiff’s
decedent was assaulted in April 1993 and admitted to the Cooper
Hospital, where he died several days later. Plaintiff went to see
the decedent at the hospital and was told that the decedent had
died due to a “small hole in his intestines” and that the hospital
staff “did all they could.”233 The death certificate indicated that the
death was a “homicide.”234 In October 1995, plaintiff’s attorney
received an anonymous letter from someone who worked in
the hospital which said that the decedent died due to a delay in
treatment. In April 1996, the attorney advised the plaintiff of
this letter and in January 1997, three and one-half years after the
date of the decedent’s death, but within two years of receiving the
letter, plaintiff filed suit against Cooper Hospital and several John
Doe defendants. The trial court denied Cooper Hospital’s motion
228. Mancuso v. Neckles, 163 N.J. 26, 35 (2000).
229. Mancuso v. Neckles, 163 N.J. 26, 37 (2000).
230. Mancuso v. Neckles, 163 N.J. 26, 38 (2000).
231. Mancuso v. Neckles, 163 N.J. 26, 38 (2000).
232. Martinez v. Cooper Hosp., 163 N.J. 45 (2000).
233. Martinez v. Cooper Hosp., 163 N.J. 45, 49 (2000).
234. Martinez v. Cooper Hosp., 163 N.J. 45, 49 (2000).
for summary judgment but the Appellate Division reversed and
remanded for a Lopez hearing. After the hearing, the trial court
dismissed with prejudice and the Appellate Division affirmed in an
unpublished opinion.
The Supreme Court held that the statute of limitations does
not begin to accrue until the plaintiff is aware that the injury is
“attributable to the fault of another.”235 The Court explained that
the essence of the discovery rule is:
where, within the limitations period, a plaintiff
knows of an injury and that the injury is due to
the fault of another, he or she has a duty to act.
However, those cases also stand for the proposition
that where a plaintiff knows of an injury, but fault
is not self-evident or implicit in the injury itself,
it must be shown that a reasonable person would
have been aware of such fault in order to bar the
plaintiff from invoking the discovery rule.236
In permitting the plaintiff to pursue the claim, the Court observed
that it was reasonable for plaintiff to believe that the decedent died
from the beating. The court noted that the death certificate stated
the death was a homicide and that the staff at the hospital told the
plaintiff “they did all they could,” thereby misleading the plaintiff.
The Martinez Court explained that although the plaintiff could
have immediately obtained the extensive medical record:
It is not necessary every time a person dies in a
hospital for his or her relatives to immediately
suspect malpractice. … The rule accepted by the
lower courts, that Ms. Martinez was unreasonable
because she did not obtain and analyze [the
decedent’s] medical records even though she was
not suspicious, encourages mistrust and essentially
pits patients against their physicians even in cases
where there is not even a trace of negligence
apparent.237
235. Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000).
236. Martinez v. Cooper Hosp., 163 N.J. 45, 55 (2000).
237. Martinez v. Cooper Hosp., 163 N.J. 45, 58 (2000).
The Court distinguished Martinez from a case where an otherwise
healthy individual undergoes elective surgery and dies. In such
cases, “some inquiry would be required by a reasonable person in
such circumstances.”238 The Court therefore allowed Ms. Martinez
to pursue the claim:
We are satisfied that under presently existing
standards governing the discovery rule,
Ms. Martinez acted in an objectively reasonable
way in connection with [the decedent’s] death. She
believed the official version of events and had no
duty to investigate further. … She did not delay
but took timely action as soon as she received the
information in the anonymous letter. No issue
of prejudice to the Hospital was raised in this
appeal. The judgment of the Appellate Division is
reversed.239
It should be noted that in Martinez the plaintiff was only pursuing
a survival claim and did not file a wrongful death claim. Therefore
the Supreme Court did not need to discuss N.J.S.A. 2A:31-3, which
requires that a claim for wrongful death must be brought within
two years after the date of death and does not contain the same
accrual language as N.J.S.A. 2A:14-2. Similarly, the Court did not
need to cite Presslaff v. Robins,240 declining to apply the discovery
rule to a wrongful death case. See also discussion of LaFage v.
Jani,241 and § 8:6-8 of this text.
The Supreme Court revisited and acknowledged the complexity
of the discovery rule in Caravaggio v. D’Agostini.242 In fact, Justice
Long stated at the outset in Caravaggio:
The discovery rule, incorporating as it does a
notion of simple justice, has been anything but
simple in application, as evidenced by the amount
of litigation it has spawned. Decades after its
238. Martinez v. Cooper Hosp., 163 N.J. 45, 58 (2000).
239. Martinez v. Cooper Hosp., 163 N.J. 45, 58 (2000).
240. Presslaff v. Robins, 168 N.J. Super. 543 (App. Div. 1979).
241. LaFage v. Jani, 166 N.J. 412 (2001).
242. Caravaggio v. D’Agostini, 166 N.J. 237 (2001).
enunciation, lawyers and judges are still grappling
with its application. This is another such case.243
In Caravaggio, the plaintiff was injured in a motorcycle accident
in May 1993 and the defendant performed surgery at that time. In
July 1993, while engaging in physical therapy, a rod that had been
inserted in the plaintiff’s leg fractured through the screw lines. The
defendant told the plaintiff at that time that he was “very much
surprised” that the rod had failed.244 In October the same year,
the plaintiff saw another surgeon who advised that the defendant
“might have chosen a thicker rod.”245 However, the Court noted
that the second orthopedist “did not suggest directly or obliquely
that Mrs. Caravaggio should question the medical care she received
from Dr. D’Agostini.”246 The defendant performed a second
operation in October 1993 and, after the surgery, the defendant
advised the plaintiff that there was something wrong with the rod
and that plaintiff should consult an attorney.
The plaintiff gave the rod to her attorney and it was examined
by metallurgists who determined that the rod was not defective.
The plaintiff later retained another attorney who filed suit in
September 1995 against the surgeon who installed the rod. The
defendant moved for summary judgment, arguing that the statute
of limitations had expired. The trial court granted the motion,
concluding the plaintiff should have known she had an action
against the defendant no later than August 1993 when she learned
that the rod had broken. The Appellate Division affirmed in an
unpublished opinion; however, the Supreme Court reversed.
The Caravaggio Court first reviewed the purpose behind the
statute of limitations and the discovery rule. The Court reiterated
that the commencement of the running of the statute of limitations
requires “knowledge not only of the injury but also that another
is at fault.”247 The Court relied on Savage v. Old Bridge-Sayreville
Medical Group,248 and Lynch v. Rubacky,249 as examples of cases
243. Caravaggio v. D’Agostini, 166 N.J. 237, 240 (2001).
244. Caravaggio v. D’Agostini, 166 N.J. 237, 241 (2001).
245. Caravaggio v. D’Agostini, 166 N.J. 237, 242 (2001).
246. Caravaggio v. D’Agostini, 166 N.J. 237, 242 (2001).
247. Caravaggio v. D’Agostini, 166 N.J. 237, 246 (2001).
248. Savage v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241 (1993).
249. Lynch v. Rubacky, 85 N.J. 65 (1981).
where the plaintiff was aware of an injury but not aware that the
injury was attributable to the fault of another. The Court explained
that, in such cases, the “cause of action does not accrue until she
has knowledge of the injury and that such injury is the fault of
another.”250
The Court recalled that it had reaffirmed the discovery rule in
Martinez v. Cooper Hospital251 and Gallagher v. Burdette-Tomlin
Memorial Hospital.252 The Court explained that in those cases it
had held that even if a plaintiff knows that an injury is the fault
of another,
but is reasonably unaware that a third party may
also be responsible, the accrual clock does not
begin ticking against the third-party until the
plaintiff has evidence that reveals his or her possible
complicity.253
The Caravaggio Court therefore concluded that it was not until
the surgical rod was examined and found not to be defective in
October 1993 that the plaintiff had any reason to suspect that the
defendant might have been partly at fault. Since the complaint was
filed against the surgeon within two years of the examination of the
rod, the case against the surgeon should not have been dismissed
on limitations grounds.254 The Court explained the public policy
supporting its decision as follows:
If the rulings of the trial court and the Appellate
Division to the contrary were to be approved, it
would have the untoward effect of pitting patients
against their physicians, at a time at which they have
no reason to doubt their physicians, in order not to
risk losing their cause of action altogether.255
Subsequently, in Guichardo v. Rubinfeld,256 the Supreme Court
explored what may be the outer boundary of the statute of
250. Caravaggio v. D’Agostini, 166 N.J. 237, 246 (2001).
251. Martinez v. Cooper Hosp., 163 N.J. 45 (2000).
252. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38 (2000).
253. Caravaggio v. D’Agostini, 166 N.J. 237, 250 (2001).
254. Caravaggio v. D’Agostini, 166 N.J. 237, 251 (2001).
255. Caravaggio v. D’Agostini, 166 N.J. 237, 253 (2001).
256. Guichardo v. Rubinfeld, 177 N.J. 45 (2003).
limitations, expanding upon the holdings in Gallagher v. BurdetteTomlin Memorial Hospital.257 In Guichardo, the plaintiff was under
the care of the defendant, Dr. Rubinfeld, who treated the plaintiff
with a series of thoracic epidural catheterizations. In September
1992, the plaintiff was admitted to a hospital by the defendant,
Dr. DeLisi, so that Dr. Rubinfeld could perform a catheterization.
After that procedure, the plaintiff developed an infection near the
insertion site of the catheter but was nevertheless discharged from
the hospital four days later. Shortly after her discharge from the
hospital, the plaintiff began to experience numbness, tingling, and
difficulty with urination and bowel movements, and Dr. DeLisi
re-admitted the plaintiff to the hospital in October 1992. After
her re-admission to the hospital, the plaintiff began to experience
difficulty walking. Dr. DeLisi diagnosed an epidural abscess and
performed surgery to remove the abscess. Unfortunately, the
plaintiff did not regain the ability to walk.
Prior to filing suit, plaintiff’s counsel consulted an expert who
concluded that various doctors had committed malpractice during
the insertion of the catheter and during the plaintiff’s first hospital
stay in September 1992. However, the expert did not opine that
Dr. DeLisi deviated from the standard of care in any way. The
plaintiff filed suit in September 1994, naming Dr. Rubinfeld, the
hospital, and other medical personnel who were involved with
her care during the admission to the hospital in September 1992.
However, the plaintiff did not sue Dr. DeLisi at that time.
Thereafter, in December 1994 and April 1995, plaintiff’s counsel
consulted with two additional medical experts, and neither expert
opined that Dr. DeLisi had committed malpractice. In July 1995,
the plaintiff’s counsel consulted with a fourth expert who concluded
that Dr. DeLisi had been negligent in delaying the diagnosis
and treatment of the epidural abscess, and that this negligence
contributed to the plaintiff’s paraplegia.258
The plaintiff amended the complaint in March 1996 to add
Dr. DeLisi as a defendant, and Dr. DeLisi moved for summary
judgment based on the statute of limitations. Dr. DeLisi asserted
that the plaintiff knew or should have known by October 1992 at
257. Gallagher v. Burdette-Tomlin Mem’l Hosp., 163 N.J. 38 (2000).
258. Guichardo v. Rubinfeld, 177 N.J. 45, 49 (2003).
the latest of the facts giving rise to the claim against him. The trial
court concluded that the discovery rule did not toll the statute of
limitations against Dr. DeLisi and granted the motion dismissing
the complaint against Dr. DeLisi. Subsequently, another defendant
filed a third-party complaint against Dr. DeLisi.
In February 2000, after the New Jersey Supreme Court decided
Gallagher v. Burdette-Tomlin Memorial Hospital, and Mancuso v.
Neckles, the plaintiff successfully moved for reconsideration of the
trial court’s dismissal of Dr. DeLisi. The trial court concluded at
that time that the plaintiff did not become aware of Dr. DeLisi’s
negligence until she received the opinion of her fourth expert and
reinstated the claim against Dr. DeLisi.259 However, the Appellate
Division granted leave to appeal and reversed, remanding for entry
of an order dismissing the plaintiff’s complaint against Dr. DeLisi.
In reversing the Appellate Division and permitting the plaintiff
to pursue her claim against Dr. DeLisi, the Supreme Court first
recalled that:
New Jersey courts long have employed the
equitable principle of the discovery rule to avoid
the potentially harsh effects of the ‘mechanical
application’ of statutes of limitations. Vispisiano v.
Ashland Chem. Co., 107 N.J. 416, 426 (1987). The
discovery rule delays accrual of a cause of action
‘until the injured party discovers, or by an exercise
of reasonable diligence and intelligence should have
discovered[,] that [he or she] may have a basis for
an actionable claim.’ Lopez v. Swyer, 62 N.J. 267,
(1973), supra 62 N.J. at 272. To start the statute
of limitations running in a case involving ‘complex
medical causation,’ in which ‘it is not at all selfevident
that the cause of injury was the fault of
… a third party,’ Mancuso, supra 163 N.J. at 34
(quoting Vispisiano, supra 107 N.J. at 434), ‘more is
required than mere speculation or an uninformed
guess without some reasonable medical support
that there was a causal connection’ between the
259. Guichardo v. Rubinfeld, 177 N.J. 45, 50 (2003).
plaintiff’s condition and the third party’s conduct.
Ibid (quoting Vispisiano, supra 107 N.J. at 437).260
Therefore, in order for the statute of limitations clock to start,
the plaintiff must possess “knowledge not only of the injury but
also that another is at fault.”261 The Court further explained that:
Accordingly, plaintiffs who seek application of the
discovery rule may be ‘divided into two classes:
those who do not know that they have been injured
and those who know they have suffered an injury
but do not know that it is attributable to the fault
of another. A cause of action does not accrue until
both of those factors exist.’ … This Court also
has distinguished a ‘sub-category’ of that second
genre of ‘knowledge of fault’ cases, which includes
actions brought by plaintiffs who ‘know [they have]
been injured and [that] the injury was the fault of
another, but do not know that a third party was
also responsible for [their] plight.’262
The Guichardo Court then recalled that in Mancuso, and
Gallagher, the plaintiffs were allowed to add defendants more than
two years after the plaintiffs were injured due to the plaintiffs’
reliance “on earlier expert opinions indicating that the additional
physicians were not at fault.”263
Based upon this analysis, the Guichardo Court rejected the
contention of Dr. DeLisi that the plaintiff should have known of
the basis for a claim against him shortly after her injury. The Court
explained that although the plaintiff had a duty to investigate, she
“fulfilled that duty, as evidenced by her consultation with numerous
experts and her specific inquiries in respect of whether the care she
received during her October 1992 hospital admission deviated from
accepted standards.”264 The Court specifically took note of the fact
260. Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003).
261. Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) (quoting Martinez v. Cooper
Hosp.,
163 N.J. 45, 52 (2000)).
262. Guichardo v. Rubinfeld, 177 N.J. 45, 51-52 (2003) (quoting Mancuso v.
Neckles,
163 N.J. 26, 38 (2000)).
263. Guichardo v. Rubinfeld, 177 N.J. 45, 53 (2003).
264. Guichardo v. Rubinfeld, 177 N.J. 45, 54 (2003).
that the plaintiff could not be deemed “dilatory.”265 The Guichardo
Court agreed that the plaintiff’s reliance on the advice of the initial
experts was reasonable. “Accordingly, we do not find that plaintiff
knew or reasonably should have known of the existence of her
claim against Dr. DeLisi.”266
The Guichardo Court also explained that the application of
the discovery rule requires the equitable weighing of all factors,
including whether the defendant has been “unfairly prejudiced”
by the delay.267 The Guichardo Court determined that Dr. DeLisi
could not demonstrate such prejudice, noting that:
Dr. DeLisi has been an active participant in this case,
represented by counsel, for nearly five years. He is
already conversant with the facts and issues that
would be litigated by plaintiff and has participated
in discovery and depositions. Dr. DeLisi has not
suggested that the passage of time has made any
evidence or witnesses unavailable. We therefore
conclude that Dr. DeLisi is not prejudiced by
application of the discovery rule in this appeal.268
Therefore, as the result of the plaintiff’s “reasonable reliance”
on the initial experts, and the lack of prejudice to Dr. DeLisi, the
Court reversed and reinstated the claim against Dr. DeLisi. In
concluding, the Guichardo Court added that this decision does not
permit an
open-ended process that allows a plaintiff an
indefinite period in which to search for an expert
willing to support a preferred theory of liability.
First, in this appeal, as in Mancuso and Gallagher,
plaintiff reasonably relied on expert advice
indicating an absence of fault on the part of a
particular care provider. In the majority of medical
malpractice cases, such detrimental reliance is
unlikely. Second, when, as in this appeal, litigation
265. Guichardo v. Rubinfeld, 177 N.J. 45, 54 (2003).
266. Guichardo v. Rubinfeld, 177 N.J. 45, 55 (2003).
267. Guichardo v. Rubinfeld, 177 N.J. 45, 55 (2003) (citing Mancuso v. Neckles,
163 N.J. 26,
38 (2000) and Lopez v. Swyer, 62 N.J. 267, 276 (1973)).
268. Guichardo v. Rubinfeld, 177 N.J. 45, 55 (2003).
against other defendants already is in progress, the
time limitations prescribed in our court rules will
serve to limit a plaintiff’s ability to continue the
search for a supportive expert. When no litigation is
pending, the discovery rule’s inquiry into diligence
by the plaintiff and prejudice to the defendant
will accomplish the same objective. Finally, the
discovery rule is a doctrine of equity and there is
nothing in our jurisprudence that would bar the
application of other equitable principles such as
unclean hands or laches to avoid undue prejudice
to a potential defendant.269
The accrual of the statute of limitations may be delayed by false
assurances by the treating doctor that the condition is improving.
In Lynch v. Rubacky,290 plaintiff fractured her ankle in December
1972 and came under the care of the defendant, an orthopedic
surgeon. The defendant performed a closed reduction and a few
days later performed an open reduction. Plaintiff experienced
severe pain, and in July 1972 underwent a second surgical procedure
performed by the defendant. In January 1974, the defendant told
the plaintiff that she was completely healed and that the problems
were in her head, requiring referral to a psychiatrist. Instead,
plaintiff went to another orthopedist in February 1974 and in
May 1974 the subsequent treating physician told plaintiff that the
defendant did not perform the first two operations properly. The
trial court determined that by the exercise of reasonable diligence
and intelligence plaintiff should have known about the potential
malpractice claim in February 1974. Since the suit was filed in
May 1976, the trial court dismissed the case due to the expiration
of the statute of limitations. In reversing, the Supreme Court
revisited the Lopez doctrine and reiterated that the cause of action
accrues when the injured party through the exercise of reasonable
diligence should have discovered the basis for the claim.291 The
Court added:
288. Rothman v. Silber, 90 N.J. Super. 22, 35 (App Div 1966).
289. Rothman v. Silber, 90 N.J. Super. 22, 36 (App Div 1966).
290. Lynch v. Rubacky, 85 N.J. 65 (1981).
291. Lynch v. Rubacky, 85 N.J. 65, 70 (1981).
As emphasized in Lopez, the discovery rule centers
upon an injured party’s knowledge concerning the
origin and existence of his injuries as related to
the conduct of another person. Such knowledge
involves two key elements, injury and fault.292
The Lynch Court instructed that where the fault is not self-evident,
“the judicial search into an aggrieved party’s knowledge of possible
fault must be commensurately exacting.”293 The Court deemed
significant the fact that plaintiff was reassured by defendant that
her condition was getting better, a fact supported by the doctor’s
office notes. The Court noted that it was likely that the patient was
misled by the physician’s optimistic prognosis and that it would
be “inequitable” for a physician who has given such assurances to
claim that a patient, in relying upon them and not suspecting their
falsity or inaccuracy, failed to exercise the reasonable diligence
required by the discovery rule.294 Therefore, the Supreme Court
reversed the determination that knowledge of the malpractice
was imputed upon seeing a second physician, and supported this
conclusion with the observation that the second physician did not
advise plaintiff in February 1974 that something had been done
wrong, but rather merely provided a second medical opinion which
differed from the first medical opinion. The Court concluded:
On the record of that hearing, the only legal
conclusion which fairly can be drawn from the
evidence is that plaintiff acted reasonably in
attending to her medical needs; she was not remiss
or sluggish in her own care. And she is not to be
blamed because she did not have knowledge of
material facts sufficient to generate the belief
or suspicion that her course of treatment with
Dr. Rubacky was improper until Dr. Argiroff so
advised her in May 1974.295
The Court concluded that since the defendant did not claim
prejudice, the plaintiff was entitled to two years from the date of
292. Lynch v. Rubacky, 85 N.J. 65, 70 (1981).
293. Lynch v. Rubacky, 85 N.J. 65, 74 (1981).
294. Lynch v. Rubacky, 85 N.J. 65, 75 (1981).
295. Lynch v. Rubacky, 85 N.J. 65, 77 (1981).
discovery of the malpractice to file suit and the case was not time
barred.296
A similar example of the statute of limitations being tolled by the
misleading advice from a medical professional is found in Abboud v.
Viscomi.297 In Abboud, plaintiff had a wisdom tooth extracted in
July 1980. Plaintiff followed up with the defendant who advised her
that the extraction had caused nerve and muscle damage. However,
defendant advised plaintiff that the condition was not permanent
and was part of the normal healing process. Defendant also
advised plaintiff that “nerve regeneration takes a very long time.”298
In December 1983 plaintiff saw a physician who advised her that
the nerve damage was permanent. The plaintiff then consulted
an attorney and filed suit in June 1984. The defendant moved for
summary judgment and the trial court held a Lopez hearing. The
plaintiff testified during the Lopez hearing that the extraction was
more difficult than others she had experienced and that afterwards
she felt substantial pain and lacked normal sensation on the left
side of her face. The trial court held that plaintiff’s admissions that
she felt something had gone wrong immediately after the dental
surgery constituted discovery of the cause of action and triggered
the running of the statute of limitations. Plaintiff argued that she
did not discover she had a permanent injury until December 1983
when she was so advised by the second doctor. The trial court
held, however, that knowledge of permanence is not necessary to
commence the running of the statute of limitations.
In reversing, the Supreme Court reiterated that the discovery
rule was designed to “avoid harsh results that otherwise would
flow from mechanical application of a statute of limitations.”299
The Court then observed that the plaintiff in fact had knowledge
of sufficient facts to commence a claim because she knew her
injury was due to the dentist’s neglect. Nevertheless, the Court
reiterated that “the discovery rule is essentially a rule of equity”300
296. Lynch v. Rubacky, 85 N.J. 65, 77-78 (1981) (citing Fox v. Passaic Gen.
Hosp., 71 N.J.
122 (1976)).
297. Abboud v. Viscomi, 111 N.J. 56 (1988).
298. Abboud v. Viscomi, 111 N.J. 56, 59 (1988).
299. Abboud v. Viscomi, 111 N.J. 56, 62 (1988).
300. Abboud v. Viscomi, 111 N.J. 56, 63 (1988) (citing Lopez v. Swyer, 62 N.J.
267, 273
(1973).
and therefore “each case calls for an identification evaluation
and weighing of the equitable claims of the parties.”301 The
Court concluded that the “defendant’s misrepresentations to
the plaintiff reasonably induced plaintiff not to sue within the
normal limitations time period” and that plaintiff was misled due
to “defendant’s erroneous statements, rather than any unilateral
misjudgment concerning the nature of her injury.”302 Since the
defendant “induced plaintiff not to file a timely complaint
through erroneous medical counseling,” the equities favored
permitting plaintiff to pursue the cause of action and plaintiff ’s
claims were not barred.303
Continuing Treatment and the Statute
of Limitations
Where there is continuing negligence, as opposed to a solitary
incident, the statute of limitations does not begin to expire until the
patient has been discharged from treatment, unless the patient had
reason to know of the malpractice during the course of treatment.
This conclusion was implied in Tortorello v. Reinfeld,304 where,
in the context of a discussion of the statute of limitations, the
Court noted that it was not concerned with a “continuing tort.”305
Similarly, in Bauer v. Bowen,306 the court stated:
If injurious consequences arise from a continuing
course of negligent treatment, the statute does
not ordinarily begin to run until the treatment is
terminated, unless the patient shall have earlier
discovered the injury.307
A similar sentiment was expressed in Aykan v. Goldzweig,308
a legal malpractice case, where the court held:
301. Abboud v. Viscomi, 111 N.J. 56, 63 (1988).
302. Abboud v. Viscomi, 111 N.J. 56, 65 (1988).
303. Abboud v. Viscomi, 111 N.J. 56, 65 (1988).
304. Tortorello v. Reinfeld, 6 N.J. 58 (1950).
305. Tortorello v. Reinfeld, 6 N.J. 58, 66 (1950).
306. Bauer v. Bowen, 63 N.J. Super. 225 (App. Div. 1960).
307. Bauer v. Bowen, 63 N.J. Super. 225, 231 (App. Div. 1960).
308. Aykan v. Goldzweig, 238 N.J. Super. 389 (Law Div. 1989).
The law in this State is well settled that, in
professional negligence cases, where there is a
continuing course of negligent treatment, the
Statute of Limitations does not begin to run until
treatment is terminated, unless the plaintiff earlier
discovers such injury or fraudulent concealment is
involved. Bauer v. Bowen, 63 N.J. Super. 225, 164
A.2d 357 (App. Div. 1960).309
However, if the patient has reason to discover the negligent conduct
prior to the termination of treatment, the statute of limitations is
not tolled. In Lopez v. Swyer,310 the Court specifically rejected the
“so-called ‘continuing treatment doctrine’ ” which does not “permit
the statute of limitations to commence running in any event until
the conclusion of the entire course of treatment.”311 However, the
Appellate Division in Lopez did hold that where a physician is guilty
of malpractice in connection with a continuing course of treatment,
the statute of limitations does not begin to run until
the injurious treatment is terminated unless the
patient discovered or should have discovered the
injury and its causal connection with the negligent
treatment before that time.312
Furthermore, the Appellate Division observed that the physician
has a duty to disclose negligent treatment, and:
We observe that Tortorello, in the dictum referred
to above, speaks of ‘the continuing neglect to advise
a proper course of treatment’ as a ‘continuing
tort.’313
Incompetency/Insanity and the Statute
of Limitations
N.J.S.A. 2A:14-21 tolls the statute of limitations during a period
of incompetency or insanity. The statute was applied in Kisselbach v.
309. Aykan v. Goldzweig, 238 N.J. Super. 389, 392 (Law Div. 1989).
310. Lopez v. Swyer, 115 N.J. Super. 237 (App. Div. 1971), aff’d, 62 N.J. 267
(1973).
311. Lopez v. Swyer, 115 N.J. Super. 237, 249 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
312. Lopez v. Swyer, 115 N.J. Super. 237, 250 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
313. Lopez v. Swyer, 115 N.J. Super. 237, 251 (App. Div. 1971), aff’d, 62 N.J.
267 (1973).
County of Camden,314 where plaintiff brought suit as administratrix
ad prosequendum of the estate of his father and alleged that his
father had been mistreated while a patient at a county-run medical
facility. The court dismissed the survival claim based on the statute
of limitations. The Appellate Division reversed, noting that the
survival claim was tolled during the decedent’s lifetime by N.J.S.A.
2A:14-21. The court further held that the grant of a power of
attorney to the son did not compel the son to institute a personal
injury claim on behalf of his father. The court distinguished
Kyle v. Green Acres at Verona, Inc.,315 where the Supreme Court
held that whether a guardian knew or should have known of the
cause of action is relevant to the statute of limitations defense.316
The Kisselbach court explained that:
A guardianship follows incapacitation and is
undertaken in response to it. Thus, it is reasonable to
shift the burden of deciding to sue to the guardian.
Contrast this to a power of attorney which cannot
be executed by an incapacitated principal, must
pre-date any incapacitation, and does not divest
the principal of any authority.317
The court therefore held that the claim was tolled by the patient’s
insanity.
Infancy/Parents’ Claim for Injuries to a Child
and the Statute of Limitations
N.J.S.A. 2A:14-21 tolls the statute of limitations until the age
of majority. Therefore, a minor is required to file a claim within
two years of the minor’s 18th birthday.318 The only exception is for
“injuries sustained at birth.” In 2004, the New Jersey Legislature
enacted the New Jersey Medical Care Access and Responsibility
and Patients First Act.319 This statute amended N.J.S.A. 2A:14-2,
to read as follows:
314. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558 (App. Div. 1994).
315. Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 112 (1965).
316. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558, 565 (App. Div. 1994).
317. Kisselbach v. Cnty. of Camden, 271 N.J. Super. 558, 566 (App. Div. 1994).
318. See Green v. Averbach Chevrolet, 127 N.J. 591 (1992).
319. N.J.S.A. 2A:53A-38, et seq.
Every action at law for an injury to the person
caused by the wrongful act, neglect or default of
any person within this State shall be commenced
within two years next after the cause of any such
action shall have accrued; except that an action
by or on behalf of a minor that has accrued for
medical malpractice for injuries sustained at birth
shall be commenced prior to the minor’s 13th
birthday.320
The time limit for the claim of a parent for an injury to a child is
controlled by N.J.S.A. 2A:14-2.1, which provides:
Where a parent or other person has a claim for
damages suffered by him because of an injury to a
minor child caused by the wrongful act, neglect or
default of any person within this State, an action
at law upon such claim may be commenced by the
said parent or other person within the same period
of time as provided by law in the case of the said
minor child so injured provided that, if an action
is commenced by or on behalf of the said minor
child, the said claim of the parent or other person
shall be asserted and maintained in such action
brought on behalf of the injured minor child
either as a plaintiff or third party plaintiff and if
not so asserted shall be barred by the judgment in
the action brought on behalf of said injured minor
child.
The issue of when the parents must file a claim for their damages
arising out of an injury to their child depends on the nature of
the injury. In Procanik by Procanik v. Cillo,321 a wrongful birth
case discussed in Chapter 5, § 5-12 of this text, the Court noted
that the parents’ claims were barred by the statute of limitations
contained in N.J.S.A. 2A:14-2.1. The Court rejected the argument
that the parents’ claims were derivative of the infant’s claim. The
Court concluded that the claim of the parents did not arise solely
320. N.J.S.A. 2A:14-2(a).
321. Procanik by Procanik v. Cillo, 97 N.J. 339 (1984).
because of injury to the child but rather was a direct injury to
their independent rights and therefore the parents’ claim was time
barred.322
A distinction was drawn in Mansour v. Leviton Manufacturing
Co., Inc.,323 where the plaintiff brought suit individually and as
guardian ad litem of his daughter, who sustained severe burns
when an electric wok turned over and spilled its contents on her.
The suit was filed more than two years after the child was injured.
The defendants contended that the father’s claim was untimely.
The court analyzed N.J.S.A. 2A:14-21, which states that when a
parent has a claim for damages because of an injury to a child, an
action may be commenced by the parent,
within the same period of time as provided by
law in the case of the said minor child so injured,
provided that, if an action is commenced by or on
behalf of the said minor child, the said claim of
the parent or other person shall be asserted and
maintained in such action.
The court first observed:
the plain language of the statute allows a parent,
who claims to have suffered damages as a result
of injury to his child, to wait to file suit until the
child’s suit is brought, but no longer.324
The court then distinguished a parent’s claim for the parents’
own injury from a parent’s derivative claim.
The tolling statute does not define a parent’s
allowable ‘claim for damages suffered by him
because of an injury to a minor child caused by’
another’s wrong. See N.J.S.A. 2A:14-2.1. It merely
provides that such a claim, insofar as it is otherwise
allowed, will be tolled. The underlying assumption
of the tolling statute is that proof of the child’s cause
of action is an essential element of the parent’s.
See Model Jury Charge 5.15. That is what makes
322. Procanik by Procanik v. Cillo, 97 N.J. 339, 355-56 (1984).
323. Mansour v. Leviton Mfg. Co., 382 N.J. Super. 594 (App. Div. 2006).
324. Mansour v. Leviton Mfg. Co., 382 N.J. Super. 594, 602 (App. Div. 2006).
the claim ‘derivative.’ Compare Procanik v. Cillo,
97 N.J. 339, 355-56 (1984) (addressing the parents’
claim for negligent advice and treatment during
pregnancy that deprived them of an opportunity
to avoid birth of a child with severe defects).325
The court then analyzed the impact of the tolling statute on the
father’s claim:
Yet if the parent is not allowed the same tolling
period, the parent will be forced within two years to
file (and try) the same products claim that the child
may pursue years later. Such duplication of effort
and expense, with its potential for inconsistent
verdicts, makes no sense and cannot have been
intended by the Legislature.
… It would make little or no sense to allow,
much less effectively to require, separate lawsuits,
especially when the parent’s case likely would
be tried first to avoid the two-year time bar. The
statute itself implies exactly that rationale, by
allowing the parent’s action the same tolling period
as an action on behalf of the child, but no more:
requiring the parent’s action to be brought no later
than the child’s.326
The court concluded by observing:
Most significant to our conclusion that the [father’s]
Portee claim is tolled for as long as the child’s
claim is tolled is that the practical effect is entirely
consistent with the entire controversy doctrine,
see Rule 4:30A, and its underlying rationale: to
avoid multiple lawsuits on related claims involving
the same parties, thereby also to avoid the risk
of inconsistent results, and to promote judicial
economy, all in a fair and equitable manner.327
325. Mansour v. Leviton Mfg. Co., 382 N.J. Super. 594, 602-03 (App. Div.
2006).
326. Mansour v. Leviton Mfg. Co., 382 N.J. Super. 594, 603-04 (App. Div.
2006).
327. Mansour v. Leviton Mfg. Co., 382 N.J. Super. 594, 604 (App. Div. 2006).
In McDonald v. Lederle Laboratories, the Appellate Division
held that a patient who does not file a timely claim under the
National Childhood Vaccine Injury Act, 42 U.S.C. 300, et seq.,
is barred from subsequently bringing a personal injury action in
state court.328 The National Childhood Vaccine Injury Act requires
that a claim be filed within 36 months after the first symptom
or manifestation of the injury. In McDonald, the plaintiff was
inoculated with the DPT vaccine in 1989 but did not file a claim
until 1998, and the claim was dismissed as untimely. Thereafter, the
plaintiff filed a civil action against the defendants. The Appellate
Division affirmed the order dismissing the complaint.329
Statute of Limitations for Wrongful Death
N.J.S.A. 2A:31-3 provides that actions for wrongful death must
be brought within two years after the date of the death. There is no
accrual language as is contained in N.J.S.A. 2A:14-2.
This distinction was the key to the decision in Duffy v. Ackerhalt,330
where plaintiff’s decedent was last treated by defendant in
December 1971. Plaintiff’s decedent complained of various pains
and was given aspirin. In March 1972, plaintiff’s decedent was
taken to an emergency room and died shortly thereafter. The cause
of death was determined to be subacute bacterial endocarditis, an
infection of the muscles lining the heart. Plaintiff’s administratrix
instituted suit in January 1974, alleging a claim for wrongful death
and survival damages. The trial court dismissed both claims. The
Appellate Division reversed, simply noting that the statute of
limitations for wrongful death is two years from the date of the
death.331
328. McDonald v. Lederle Labs., 341 N.J. Super. 369 (App. Div. 2001)
(affirming dismissal
of mother’s claims on child’s behalf, reversing dismissal of mother’s
individual claims and
remanding to address those claims), appeal after remand 366 N.J. Super. 555
(App. Div.
2004) (affirming dismissal of some of the mother’s individual claims and
reversing dismissal
of her per quod claim for loss of her son’s services), certif. granted, 180 N.J.
455 (2004).
See also Rivard v. Am. Home Prods., 391 N.J. Super. 129 (App. Div. 2007)
and Troxclair v.
Aventis Pasteur, Inc., 374 N.J. Super. 374 (App. Div. 2005), which discuss the
National
Childhood Vaccine Injury Act, 42 U.S.C. 300AA-1 to -34.
329. McDonald v. Lederle Labs., 341 N.J. Super. 369, 376 (App. Div. 2001).
330. Duffy v. Ackerhalt, 138 N.J. Super. 119 (App. Div. 1975).
331. Duffy v. Ackerhalt, 138 N.J. Super. 119, 120 (App. Div. 1975) (citing
N.J.S.A. 2A:31-3).
This result was followed in Silverman v. Lathrop,332 where plaintiff
alleged that the defendant failed to diagnose a tumor which
metastasized and caused her husband’s death. Plaintiff’s decedent
first noticed a small dark spot on his leg in April 1972. He consulted
the defendant in July 1972 at which time defendant removed the
lesion but did not perform a biopsy. In October 1972 plaintiff
returned to the defendant who at that time became suspicious
of a malignant melanoma. A biopsy was taken and it confirmed
the diagnosis of regional metastasis. In April 1975 a liver scan
suggested that the plaintiff had metastatic liver cancer. Plaintiff
immediately consulted with an attorney, who filed suit in October
1975. The plaintiff died in December 1975, and the complaint was
amended to assert survival and wrongful death claims. The trial
court granted summary judgment as to the survival claims brought
pursuant to N.J.S.A. 2A:15-3 and -4. The court then turned to the
discussion as to whether the wrongful death claim is also barred
by the statute of limitations. The court rejected the contention
that the wrongful death action is derivative of the personal injury
action, which was time barred, and held that the wrongful death
claim, brought within two years of the date of death, was timely.
We conclude that conditioning the cause of action
for death on an extant and viable cause of action
for personal injuries at the time of death is not
required by the statutory language, logic or credible
precedent.333
An interesting analysis of the wrongful death statute of
limitations is found in Lombardi v. Simon,334 where plaintiff
brought suit alleging that the negligence of an anesthesiologist
caused the death of his son. In the initial complaint, plaintiff
named Dr. Wen-Hong Chen, the anesthesiologist that the plaintiff
thought was responsible. Plaintiff amended the complaint to name
Dr. Te-Hong Chen, the actual anesthesiologist, as a defendant, but
the amended complaint was not filed within two years of the date
of his son’s death. The defendant, Dr. Te-Hong Chen, moved for
summary judgment based upon the two-year statute of limitations
332. Silverman v. Lathrop, 168 N.J. Super. 333 (App. Div. 1979).
333. Silverman v. Lathrop, 168 N.J. Super. 333 (App. Div. 1979).
334. Lombardi v. Simon, 266 N.J. Super. 708 (Law Div. 1993).
in the Wrongful Death Act. The court explained that the qualifier
in N.J.S.A. 2A:31-3, that an action for wrongful death be brought
within two years of the date of death, is not actually a statute of
limitations, but rather, “a condition which is an integral part of
the right to sue and therefore must be present before one secures
the right to file a wrongful death action.”335 The court instructed
that the wrongful death action focuses on the date of death and
not on the accrual of the cause of action. Therefore, the court held
that the amended complaint related back to the date of the initial
complaint which was timely filed.
The court held that in order for a complaint to relate back, three
factors must be satisfied: (1) the claim in the amended complaint
must have arisen out of the conduct complained about in the
initial complaint; (2) the new defendant has sufficient notice so as
not to be prejudiced; and (3) the new defendant knew or should
have known but for the misidentification that suit would have been
brought against that party. The court noted that the first element
was obviously satisfied. The court also concluded that the second
and third elements were also satisfied since it was
reasonably foreseeable that all the doctors present
when Mr. Lombardi died on the operating
table would expect a wrongful death suit to be
forthcoming. Thus, defendant, Te-Hong Chen
received sufficient notice of the wrongful death
claim.336
The court also concluded that there would be no prejudice to the
defendant since both of the anesthesiologists practiced out of the
same office and had the same insurance carrier. The court therefore
held that the claim was timely.
Several cases have discussed whether the discovery rule applies
to the Wrongful Death Act. In Presslaff v. Robins,337 plaintiff’s
decedent died in January 1975, and the administratrix claimed that
it was not until July 1977 that she learned that one of the drugs
taken by the decedent had been linked with a number of deaths.338
335. Lombardi v. Simon, 266 N.J. Super. 708, 712 (Law Div. 1993).
336. Lombardi v. Simon, 266 N.J. Super. 708, 714 (Law Div. 1993).
337. Presslaff v. Robins, 168 N.J. Super. 543 (App. Div. 1979).
338. Presslaff v. Robins, 168 N.J. Super. 543, 545 (App. Div. 1979).
The complaint was filed in March 1978. The defendants moved for
summary judgment, relying on N.J.S.A. 2A:31-3, which provides
that actions for wrongful death must be brought within two years
after the date of the death. The court held that the discovery rule
does not apply to wrongful death claims, and affirmed the granting
of the defendant’s motion for summary judgment.
However, in Negron v. Llarena,339 plaintiff filed a wrongful death
suit in the federal court in New York. The case was transferred to
the federal district court in New Jersey. Thereafter the case was
dismissed for lack of diversity jurisdiction and plaintiff filed a
wrongful death action in the Superior Court of New Jersey. The
defendants moved for summary judgment based on the fact that
the suit in state court was not filed within two years of the date
of the death. The trial court denied the defendant’s motion but
the Appellate Division reversed. The Supreme Court reinstated the
action, concluding that the plaintiff had substantially complied
with the wrongful death statute of limitations.340
The Negron Court held that the doctrine of substantial compliance
was available to be applied to “substantive” statutes of limitations,
such as the Wrongful Death Act. The Negron Court reviewed the
legislative history of the Wrongful Death Act and concluded,
Looking to the Wrongful Death Act, ‘there is nothing
reflective in the objectives of [the Act] or its history
that suggests the Legislature intended to foreclose
the familiar doctrine of substantial compliance in
the [statute of limitations] context.’341
The Negron Court held that a party should be deemed to have
substantially complied with the Wrongful Death Act’s strict statute
of limitations by satisfying the same requirements to demonstrate
substantial compliance with the Affidavit of Merit Statute:
‘(1) the lack of prejudice to the defending party;
(2) a series of steps taken to comply with the statute
involved;
339. Negron v. Llarena, 156 N.J. 296 (1998).
340. Negron v. Llarena, 156 N.J. 296, 307 (1998).
341. Negron v. Llarena, 156 N.J. 296, 304 (1998) (citing Cornblatt v. Barow,
153 N.J. 218,
240 (1998)).
(3) a general compliance with the purpose of the
statute;
(4) a reasonable notice of petitioner’s claim; and
(5) a reasonable explanation why there was not a strict
compliance with the statute.’342
Similarly, in Estate of Vida v. City of Garfield,343 the Appellate
Division held that under the doctrine of substantial compliance a
claim is timely under the Wrongful Death Act where the defendant
is actually aware of the filing of the suit prior to the expiration of
the statute of limitations.
In LaFage v. Jani,344 the Supreme Court held that the Wrongful
Death Act,345 may be equitably tolled for minors who suffer the
wrongful death of a parent. In LaFage, plaintiff’s decedent became
ill in March 1995 and was examined at a local hospital, then by
a private physician, and again at the local hospital. Plaintiff’s
decedent died two days later. He left a wife who was three
months pregnant, as well as four- and eight-year-old children.
The surviving wife spoke to a lawyer about the possibility of a
malpractice suit within five days after her husband died. Within
two weeks of her husband’s death she also spoke to a relative who
was a physician and was advised that her husband died as a result
of malpractice. A complaint seeking damages for wrongful death
was filed in April 1997, two years and 27 days after Mr. LaFage’s
death. The defendants moved to dismiss the case and the plaintiff
argued that the statute of limitations did not begin to run until
June 1995, when the autopsy report was received. The trial court
held that the discovery rule could be applied to a wrongful death
claim and scheduled a Lopez hearing. After concluding the hearing,
the trial court held that the statute of limitations began to run in
March 1995 when the plaintiff spoke to a doctor who advised her
that her husband died of malpractice. The trial court also held
that the wrongful death claim could be equitably tolled, relying
on Negron v. Llarena.346 The trial court therefore dismissed the
342. Negron v. Llarena, 156 N.J. 296, 305 (1998).
343. Estate of Vida v. City of Garfield, 330 N.J. Super. 225 (App. Div. 2000).
344. LaFage v. Jani, 166 N.J. 412 (2001).
345. N.J.S.A. 2A:31-1, et seq.
346. Negron v. Llarena, 156 N.J. 296 (1998).
wrongful death claim asserted on behalf of Mrs. LaFage, as well
as the survival claim, but allowed the wrongful death claim filed on
behalf of the minors to continue. The Appellate Division refused
to hear an interlocutory appeal but the Supreme Court granted
leave to appeal and revisited the interplay between the statute of
limitations and the Wrongful Death Act.
The Supreme Court began the analysis observing that the statute
of limitations, N.J.S.A. 2A:14-2, requires a suit be filed within two
years “after the cause of any such action shall have accrued.” The
Wrongful Death Act states that suit shall be filed “within two
years after the death of the decedent, and not thereafter.”347 The
Supreme Court quickly affirmed the trial court’s factual finding that
Mrs. LaFage had discovered the potential malpractice claim more
than two years prior to the filing of the suit.348 The Supreme Court
therefore declined to “address the broader questions whether the
discovery rule generally should be applicable to Wrongful Death
Act claims.”349 The Court then turned to the claims of the children.
In noting that the Wrongful Death Act “does not explicitly relax the
2-year requirement,” the Supreme Court recalled that in Negron,
it permitted equitable tolling or the discovery rule to be applied
to the Wrongful Death Act in appropriate circumstances.350 The
Supreme Court concluded that the legislature’s 1951 revisions to
the Infant Tolling Statute, N.J.S.A. 2A:14-21, were not intended to
prevent tolling of the statute of limitations for infants for wrongful
death cases.351 The LaFage Court pointed to the example of a child
and father who were severely injured in an accident with the child
surviving but the father dying a week later. The Court explained
that the Legislature did not intend that the personal injury claim
be permitted but the wrongful death claim be barred, stating
‘We do not believe that the Legislature would have
intended that the wrongful death claim should be
barred either in that hypothetical example or in
the present case. Although a literal reading of the
347. LaFage v. Jani, 166 N.J. 412, 420 (2001).
348. LaFage v. Jani, 166 N.J. 412, 420 (2001).
349. LaFage v. Jani, 166 N.J. 412, 420 (2001).
350. LaFage v. Jani, 166 N.J. 412, 421 (2001).
351. LaFage v. Jani, 166 N.J. 412, 425 (2001).
Wrongful Death Act might suggest a different result,
considerations of fairness and equity convince us
that the true legislative intent is otherwise.’352
The Court therefore concluded that N.J.S.A. 2A:14-21
should be construed to toll as well wrongful death
actions by infants because such actions are fairly
encompassed by the limitation provisions applicable
to actions for injury to the person. Although we
are confident that construction of the tolling
statute is consistent with the Legislature’s intent,
the Legislature is of course free to correct our
interpretation if we have misperceived its intent.353
In Miller v. Estate of Sperling,354 the Supreme Court held that
failure to bring a personal injury action within the time provided
by the statute of limitations does not bar the pursuit of a wrongful
death claim if it is filed within two years of the date of the decedent’s
death.355 In Miller, plaintiff alleged that the defendant prescribed
birth control medication to his wife from the early 1960s until 1985,
but that he did not tell either plaintiff or his wife that the prescription
was for birth control. The plaintiff’s wife left the care of the
defendant in 1985. Plaintiff’s wife died in 1996 at the age of 66 from
a suspected heart attack. Plaintiff brought a pro se wrongful death
suit in 1998. The trial court held that the claim was barred by the
statute of limitations. The Appellate Division affirmed, holding that
the failure to bring a personal injury claim prior to the expiration of
the statute of limitations barred the filing of a wrongful death claim
after the patient’s death. The Appellate Division explicitly relied on
Knabe v. Hudson Bus Transportation Company.356
352. LaFage v. Jani, 166 N.J. 412, 425 (2001).
353. LaFage v. Jani, 166 N.J. 412, 430 (2001).
354. Miller v. Estate of Sperling, 166 N.J. 370 (2001).
355. Miller v. Estate of Sperling, 166 N.J. 370, 372, 375 (2001); see also Troum v.
Newark
Beth Israel Med. Ctr., 338 N.J. Super. 1, 27 (App. Div. 2000) (rejecting
defendant’s argument
that the wrongful death claim was barred by the failure to pursue the
personal injury claim
prior to expiration of the statute of limitations, relying on Miller v. Estate of
Sperling,
166 N.J. 370 (2001); Cockinos v. GAF Corp., 259 N.J. Super. 204, 207-08
(Law Div. 1992)
(discussing the distinction between N.J.S.A. 2A:31-3, which requires that
claims for
wrongful death be brought within two years of the date of death, and
N.J.S.A. 2A:14-2,
which requires that claims be brought within two years from the date of
“accrual”).
356. Knabe v. Hudson Bus Transp. Co., 111 N.J.L. 333 (E. & A. 1933).
The Supreme Court reversed and overruled Knabe.357 In reaching
this conclusion, the Court noted that New Jersey’s present wrongful
death statute requires that the suit be brought “within two years
after the death of the decedent, and not thereafter.”358 In allowing
Mr. Miller’s wrongful death action to proceed, the Court noted
that to rule otherwise would mean
a wrongful death claim could effectively be timebarred
before the death itself. … For example, a
person critically injured on January 1, 1998 would
have until January 1, 2000 to file a personal injury
action. If that hypothetical victim passed away on
January 1, 2001 without filing such an action, Knabe
would bar the wrongful death claim. Thus the
failure to file a personal injury claim by January 1,
2000 would bar the wrongful death claim, which
did not accrue until January 1, 2001, when the
decedent died. … We construe legislation to avoid
such an absurd result.359
The Supreme Court revisited the statute of limitations in
wrongful death cases in Szczuvelek v. Harborside Healthcare Woods
Edge.360 In Szczuvelek, the patient was admitted to the Robert
Wood Johnson University Hospital in February 1999. The patient
was transferred to the defendant, Harborside, for rehabilitation on
April 13, 1999. On transfer to Harborside, an order was entered
that the patient was to be suctioned once every four hours. However,
upon admission to Harborside, an order was entered requiring that
the patient be suctioned only once per shift, and as needed. On
April 15, 1999, two days after admission to Harborside, the patient
complained to a close friend that the facility was not suctioning
the patient. Later that day, the patient’s friend had an argument
with a nurse who stated that “it’s the doctor’s orders, he’s not to be
suctioned.”361 The next day, the patient was returned to the hospital
in an unresponsive state and the patient died on April 17, 1999.
357. Miller v. Estate of Sperling, 166 N.J. 370, 375 (2001).
358. N.J.S.A. 2A:31-3.
359. Miller v. Estate of Sperling, 166 N.J. 370, 382-83 (2001).
360. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275 (2005).
361. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 278 (2005).
The plaintiff first contacted an attorney three weeks after the
patient died. The plaintiff contacted another attorney in August
2000 and the complaint was filed against Harborside and Somerset
Medical Center on April 26, 2001, two years and nine days after
the patient’s death. The plaintiff filed an amended complaint on
July 9, 2002.
The defendants both moved for summary judgment based upon
the statute of limitations. The plaintiff argued that the lawsuit was
timely because it was not until he spoke to the first lawyer, three
weeks after the patient’s death, that the plaintiff became aware of
the possibility of a malpractice case against Harborside, and not
until he spoke to the second attorney that he became aware of a
potential case against Somerset Medical Center. The trial court
held that the plaintiff was aware of the malpractice committed at
Harborside on April 15, 1999, when the plaintiff had the argument
with the nurse. The case was dismissed as to both defendants. The
Appellate Division affirmed.362
The Supreme Court began its analysis with a review of the
statute of limitations and the development of the discovery rule.363
The Court explained that since the discovery rule is a “rule of
equity,” it is “necessary to identify the equitable claims of each
party and evaluate and weigh those claims in determining whether
it is appropriate to apply the discovery rule.”364 The Court then
explained that the critical inquiry is when a reasonable person would
have known that he or she was injured as a result of somebody
else’s fault. “The standard is basically an objective one—where the
plaintiff ‘knew or should have known’ of sufficient facts to start
the statute of limitations running.”365
In affirming the dismissal as to Harborside, the Supreme Court
noted that the trial court had concluded that, based on the
patient’s April 15 note to plaintiff and plaintiff’s observations
on that day, “along with the cause of the decedent’s death
(respiratory complications), plaintiff knew or should have known
that Harborside’s actions or lack thereof were actionable at that
362. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
363. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
364. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
365. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275 (2005)
(citing
Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000)).
time.”366 The Supreme Court was equally divided as to whether the
complaint against Harborside should be dismissed. Therefore, the
judgment of the trial court and Appellate Division that Harborside
should be dismissed with prejudice was affirmed.
In reversing the dismissal as to the Somerset Medical Center,
the Court, in a terse per curiam opinion, noted that the trial court
did not make any finding as to the Somerset Medical Center. The
Supreme Court therefore remanded the matter to the trial court to
determine whether the claim against the Somerset Medical Center
should be dismissed. The Court explained:
Unlike the claim against Harborside, the trial
court made no findings on the record that would
indicate when a reasonable person in plaintiff’s
position should have been aware of Somerset’s role
in contributing to the cause of Burns’ death. The
court below failed to discuss the application of the
discovery rule to Somerset and to determine when
plaintiff should have reasonably known of facts
supporting a cause of action against Somerset to
start the running of the statute of limitation.
The application of the discovery rule may result
in different dates for the accrual of a cause of
action against different parties. As noted above, the
discovery rule delays accrual of a cause of action
‘until the injured party discovers, or by an exercise
of reasonable diligence and intelligence should have
discovered that [he or she] may have a basis for an
actionable claim.’ Lopez, supra, 62 N.J. at 272.
Plaintiff certified that he did not have any
knowledge of possible negligence by Somerset until
he contacted Mr. Leifer on August 31, 2000. We
note, however, that we have an incomplete record
as the parties failed to submit to us a statement of
material facts, which is required on the filing of a
motion for summary judgment, that could have
enabled us to decide this issue. Consequently, a
366. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 280 (2005).
remand is necessary for the trial court to determine
the application of the discovery rule as to Somerset
and when the cause of action arose against
Somerset.367
In a separate concurring opinion, Justices Poritz, Wallace, and
Rivera-Soto stated they would affirm the judgment of the Appellate
Division in favor of Harborside. Justice Poritz observed that
the plaintiff witnessed the malpractice at Harborside. The three
justices in favor of dismissal distinguished Mancuso v. Neckles,368
which was deemed to be a complex medical malpractice case.
Unlike in Mancuso, this case is not about a complex
medical causation issue. Rather it is a simple case
where plaintiff is aware of the facts that suggest
that the fault of a third party may have caused
or contributed to the death of the victim, but
further investigation is needed. The plaintiff need
not have knowledge of the basis for legal liability
or even that he is able to prove a cause of action.
All that is required is that the facts suggest to a
reasonable person that a third party’s conduct,
here Harborside, contributed to the injury.369
Justice Zazzali, concurring in part and dissenting in part, would
have reinstated the matter against Harborside. Justice Zazzali
concluded: “In cases of complex medical causation, such as the
present matter, it is not at all self-evident that the cause of the
injury [be] … the fault of … a third party.”370 Justice Zazzali
added:
A plaintiff must have ‘some reasonable medical
support that there was a causal connection between
the plaintiff’s condition and the defendant’s
conduct’ before we will deem him or her to have
367. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 282-83
(2005).
368. Mancuso v. Neckles, 163 N.J. 26 (2000).
369. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 285-86
(2005).
370. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 288 (2005)
(Zazzali, J.
concurring in part, dissenting in part) (citing Mancuso v. Neckles, 163 N.J. 26,
34 (2000)).
the requisite knowledge of the facts that trigger the
statutory period.371
.…
To hold otherwise is to encourage plaintiffs to
file medical malpractice claims, even in the unique
circumstances of complex medical causation,
whenever they are dissatisfied with their treatment
without first obtaining some reasonable medical
support for their claims. That approach invites
frivolous litigation and is inconsistent with our
decision in Martinez, supra.372
Justices Long and Albin joined in Justice Zazzali’s concurrence.
Hospitals and Charitable Immunity
Limitations on Hospital Liability
In Schiavo v. John F. Kennedy Hospital,373 the court determined
the effective date of the amendment of N.J.S.A. 2A:53A-8, which
increased the maximum liability of an eligible hospital from $10,000
to $250,000. The Appellate Division held that the increased liability
371. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 288-89
(2005) (Zazzali, J.
concurring in part, dissenting in part).
372. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 291 (2005)
(Zazzali, J.
concurring in part, dissenting in part).
373. Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380 (App. Div. 1992),
aff’d, 131
N.J. 400 (1993).
only applied to claims accruing after July 1, 1991, the effective date of
the statute. The court discussed the circumstances by which a statute
is entitled to retroactive application and decided that the Charitable
Immunity Statute was not entitled to retroactive application.
In White v. Mattera,374 the Court held that the $250,000 limit on
hospital liability provided by N.J.S.A. 2A:53A-8 applies where the
malpractice occurred in 1986 but the harm did not manifest until
1996. The Court noted that the statute was amended to increase
the limit of liability from $10,000 to $250,000 in 1991. The White
Court recalled that in Schiavo v. John F. Kennedy Hospital,375 it held
that the higher limit applied to any cause of action which accrued
after the effective date of the amendment. The Court concluded
that the claim accrues when the harm was sustained, and that since
the patient did not sustain harm until 1996, the higher limit applied
despite the fact that the malpractice occurred in 1986.376
See also Vasilik v. Federbush,377 where plaintiff brought suit
seeking damages arising out of the death of plaintiff’s son, a heroin
addict who committed suicide after being released from a hospital.
The trial testimony revealed that before his death plaintiff’s
son was in the throes of overcoming heroin addiction and had
attempted suicide by slashing his wrists and jumping out a window.
Plaintiff had brought his son to the hospital crisis center, where he
was examined and released. Plaintiff’s son committed suicide by
jumping in front of a truck the next day. Plaintiff came upon the
accident scene and saw paramedics administering CPR to his son
at the scene of the accident. The court rejected the defendants’
claim of immunity pursuant to N.J.S.A. 30:4-27.7, which provides
immunity relating to involuntary commitment for mental health
treatment and steps taken to assess mental health and need for
commitment. In addition to not being raised before the trial court,
the court stated this statute provides immunity when a person is
involuntarily committed and does not apply to a situation in which
no steps were taken to assess mental health or recommend either
involuntary or voluntary commitment.
374. White v. Mattera, 175 N.J. 158 (2003).
375. Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380 (App. Div. 1992),
aff’d, 131
N.J. 400 (1993).
376. White v. Mattera, 175 N.J. 158, 167 (2003).
377. Vasilik v. Federbush, 327 N.J. Super. 6 (App. Div. 1999).
See also, Kuchera v. Jersey Shore Family Health Center,378 where
the Supreme Court granted certification of the following question:
Does this non-profit community outreach clinic
have a charitable or educational purpose entitling
it to absolute immunity under N.J.S.A. 2A:53A-7,
or is it organized exclusively for hospital purposes
and therefore subject to a $250,000 limit on its
liability pursuant to N.J.S.A. 2A:53A-8?
Limitations on Hospital Liability Not Applicable
to Hospital Employees
The $250,000 limitation on liability of a hospital does not limit
the liability of hospital employees. In Maciag v. Strato Medical
Corp.,379 the Appellate Division observed:
It is true that if the hospital is rendered liable on
the basis of the actions of the surgical nurses, and
they have not been named separately as parties,
damages will be limited to $250,000.00 under
N.J.S.A. 2A:53A-8.380
In McFadden v. Turner,381 the court discussed the limitation of
N.J.S.A. 2A:53A-8 and observed
the limitation does not extend to the hospital’s
employees, who are accordingly obligated to
respond in full for the damages resulting from the
acts of negligence, N.J.S.A. 2A:53A-7.382
The question of whether the hospital limitation of liability in
the amount of $250,000 contained in N.J.S.A. 2A:53-8 applies to
vicarious liability or to cases of apparent employment has been the
subject of several recent cases. In the unreported case of Santana v.
Chaudri,383 the appellate division held that a hospital cannot be held
378. Kuchera v. Jersey Shore Family Health Ctr., 87 A.3d 773 (2013), granting
certification
to No. A-2155-12T3, 2013 N.J. Super Unpub. LEXIS 2456 (N.J. Super.
App. Div. Feb. 14,
2014); http://njlaw.rutgers.edu/collections/courts/appellate/a215512.opn.html.
379. Maciag v. Strato Med. Corp., 274 N.J. Super. 447 (App. Div. 1994).
380. Maciag v. Strato Med. Corp., 274 N.J. Super. 447, 458 n.4 (App. Div.
1994).
381. McFadden v. Turner, 159 N.J. Super. 360 (App. Div. 1978).
382. McFadden v. Turner, 159 N.J. Super. 360, 364 (App. Div. 1978).
383. Santana v. Chaudri, No. A-0782-10T3, 2012 N.J. Super. Unpub. LEXIS
38 (N.J.
Super. App. Div. Jan. 11, 2012).
liable for more than the $250,000 limit, even in cases of vicarious
liability or apparent employment. The same conclusion is reached in
another unreported decision, Ruday v. Shore Memorial Hospital.384
See also American Nurses Ass’n v. Passaic General Hospital,385
discussing the interplay between the limitation of liability provided
by N.J.S.A. 2A:53-8 and insurance policies issued to hospitals
providing coverage for the negligence of the hospital’s employees.
As noted by the court, insurance policies issued to hospitals
indemnifying against the negligence of the hospital’s employees
may provide coverage in excess of and may not be limited by the
statutory limitation of liability.386 Thus, it is essential to obtain
the hospital’s insurance policies and carefully review the coverage
provided to employees of the hospital.
Determining Whether Defendant is a Charity
Subject to Immunity
In an important but inexplicably unpublished opinion in the case
of Klein v. Bristol Glen Inc.,387 the appellate division explored the
limits of the immunities provided to certain health care providers
by N.J.S.A. 2A:53A-7 and -9. Although the court did not directly
address the limitation of liability provided to non-profit hospitals by
N.J.S.A. 2A:53A-8, the case is also instructive as to those claims.
In Klein, the plaintiff was injured when she fell on the grounds
of defendant, an elder care community. Defendant asserted that it
was a non-profit corporation whose stated mission is to “provide
quality and caring services to senior men and women in a Christian
community.” When defendant moved for summary judgment based
upon charitable immunity, plaintiffs sought additional discovery,
including “[a]ll records in regard to payments by patients; salaries
of employees, including management employees; [and] salaries of
the President and Vice-President of Bristol Glen, Inc.”388 Defendant
384. Ruday v. Shore Mem’l Hosp., No. A-3646-10T1, 2011 N.J. Super. Unpub.
LEXIS
2607 (N.J. Super. App. Div. Oct. 18, 2011).
385. American Nurses Ass’n. v. Passaic Gen. Hosp., 192 N.J. Super. 486 (App.
Div. 1984).
386. American Nurses Ass’n. v. Passaic Gen. Hosp., 192 N.J. Super. 486, 495
(App. Div.
1984).
387. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub.
LEXIS 1868
(N.J. Super. App. Div. Aug. 4, 2010).
388. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub.
LEXIS 1868,
at *7-8 (N.J. Super. App. Div. Aug. 4, 2010).
refused to produce this discovery, and the motion judge nevertheless
granted defendant’s motion for summary judgment. The motion
judge determined that defendant was a “charitable organization”
pursuant to N.J.S.A. 2A:53A-7 and -9 and was “formed for non-profit
purposes, organized as religious and charitable operations, and were
promoting such activities at the time of the injury sustained.”389
The appeal raised the question: What is a charity? The discovery
that had been provided revealed that residents paid up to $3,513
per month, an entrance fee between $199,700 to $319,000, or a
nonrefundable
entrance fee between $126,600 to $227,100. However,
once a resident was accepted into the community they would not
have to leave if they could no longer pay. The Klein Court deemed
it significant that charitable donations made up only 0.8 percent of
the operating budget of defendant.
In reversing, the Appellate division first observed that
where a defendant seeks the protection of the Act
based on its status as an entity organized exclusively
for charitable purposes, courts must undertake the
fact-sensitive analysis.390
The Klein Court noted that in Abdallah v. Occupational Ctr. of
Hudson County, Inc.,391 a non-profit entity relied on charitable
donations equal to one-and-a-half percent of the institution’s
total revenue and that was deemed “too insignificant” to accord it
charitable status. In most significant language that will apply to the
largest hospital systems, the court explained:
Without that opportunity and the discovery of
financial information sought, the court could
not have been in a position to determine whether
defendants’ ‘dominant motive is charity [and not]
some other form of enterprise.’392
389. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub.
LEXIS 1868,
at *10 (N.J. Super. App. Div. Aug. 4, 2010).
390. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub.
LEXIS 1868,
at *15 (N.J. Super. App. Div. Aug. 4, 2010) (citing Parker v. St. Stephen’s
Urban Dev. Corp.,
243 N.J. Super. 317, 321 (App. Div. 1990) and Ryan v. Holy Trinity
Evangelical Lutheran
Church, 175 N.J. 333, 341 (2003)).
391. Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280,
284 (App.
Div. 2002).
392. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub.
LEXIS 1868,
at *18-19 (N.J. Super. App. Div. Aug. 4, 2010)).
The Court then added, in language that will chill hospital
executives and their counsel:
On remand, plaintiffs must be provided an
opportunity to discover information previously
requested that will reveal the extent to which Bristol
Glen and UMH exist and function as moneymaking
operations, and the extent to which they truly rely
on charitable donations. That opportunity was not
provided in the proceeding below.393
Immunity for Emergency Squads and Personnel
In Frields v. St. Joseph’s Hospital,407 the court explained that
in the circumstances of that case, the intensive care personnel
and emergency medical technicians were immune from liability
pursuant to N.J.S.A. 2A:62A-1, N.J.S.A. 26:2K-14, and N.J.S.A.
26:2K-29.408
405. Weiss v. Goldfarb, 154 N.J. 468, 481-82 (1998).
406. Weiss v. Goldfarb, 154 N.J. 468, 496 (1998) (Stein, J. dissenting).
407. Frields v. St. Joseph’s Hosp., 305 N.J. Super. 244 (App. Div. 1997).
408. See also: N.J.S.A. 2A:62A-1, the Good Samaritan Act, discussed in § 87:4, and
N.J.S.A. 2A:62A-2, which provides immunity to any person, including a
volunteer
member of a first aid emergency or volunteer ambulance or rescue squad,
for
negligence in rendering emergency care at the scene of an accident or
emergency;
N.J.S.A. 2A:62A-1.1 and -1.2, which provides immunity to police and
firefighters
for negligence in rendering emergency care at the scene of an accident or
emergency;
N.J.S.A. 26:2K-14, which provides immunity to intensive care
paramedics and others rendering of “advanced life support services”; and
N.J.S.A. 26:2K-43, which provides immunity to EMTs and others for
negligence in
performing cardiac defibrillation.
In Murray v. Plainfield Rescue Squad,409 the Supreme Court held
that then existing N.J.S.A. 26:2K-29 did not provide immunity to
the Plainfield Rescue Squad as an entity, reversing an appellate
division decision.410 The legislature promptly responded and
proposed an amendment to N.J.S.A. 26:2K-29 and N.J.S.A.
2A:53A-13.1, to provide the same level of immunity to the Rescue
Squad as provided to the individual members.411 That proposed
amendment was still pending as this text went to press.
The immunity granted to emergency medical personnel was
revisited in De Tarquino v. City of Jersey City.412 In De Tarquino,
the plaintiff asserted that the defendant EMTs had negligently
failed to record on a report that her son, a head trauma victim, had
been vomiting. This report was provided to the emergency room
personnel at the hospital where the plaintiff’s son was brought for
treatment. The plaintiff’s son was released from the hospital and
died soon thereafter, and the plaintiff alleged that the negligence
of the EMTs was a contributing factor in his death. The EMT
defendants successfully moved for a dismissal pursuant to the
immunity granted by N.J.S.A. 26:2K-29, which states:
No EMT-intermediate, licensed physician, hospital
or its board of trustees, officers and members of
the medical staff, nurses or other employees of the
hospital, or officers and members of a first aid,
ambulance or rescue squad shall be liable for any
civil damages as the result of an act or the omission
of an act committed while in training for or in the
rendering of intermediate life support services in
good faith and in accordance with this act.
The Appellate Division reversed, concluding that the statute did
not provide immunity for the improper preparation of the report,
but rather only for negligence while actually providing life support.
The Appellate Division analyzed a number of statutes which provide
qualified immunities to persons who provide medical assistance
409. Murray v. Plainfield Rescue Squad, 210 N.J. 581 (2012).
410. Murray v. Plainfield Rescue Squad, 210 N.J. 581 (2012), rev’g 418 N.J.
Super. 574
(App. Div. 2011).
411. See S-2165, 215th Legislature, N.J. State Legislature (2012-2013)
(introduced Aug. 20,
2012).
412. De Tarquino v. City of Jersey City, 352 N.J. Super. 450 (App. Div. 2002).
in emergencies, including the Good Samaritan Statute, N.J.S.A.
2A:62A-1, as well as statutes that provide immunity to police and fire
fighters, N.J.S.A. 2A:62A-1.1; intensive care paramedics who render
advance life support, N.J.S.A. 26:2K-29; and a statute which provides
qualified immunity to emergency medical technicians performing
cardiac defibrillation, N.J.S.A. 26:2K-43.413 The court found that the
common thread in all of these statutes is the provision of immunity to
those who “perform medical services at the scene of emergencies.”414
The court explained that the qualified immunity conferred upon
EMT personnel is based upon the fact that emergencies which occur
outside of a hospital setting present greater risk than the performance
of the similar services by a doctor in a hospital setting. This immunity
is intended to prevent emergency medical personnel from being
“inhibited in performing those services by fear of tort liability.”415
However, the preparation of an accurate report concerning the
observations of the patient’s condition does not pose the same risk as
the rendering of emergency medical care outside a hospital.
Therefore, the legislative policy of immunizing
persons from liability for negligence in performing
emergency medical services may be achieved without
construing that immunity to extend to negligence
in the preparation of the report provided to the
hospital where an emergency patient is brought for
treatment.416
The Appellate Division supported this conclusion by noting that
the legislature could have conferred a general immunity for any
negligent conduct but rather limited the immunity to negligence
committed while rendering life support services in good faith.417
The issue arose in Lauder v. Teaneck Ambulance Corps,418 where
the patient was injured when a gurney collapsed. The defendant
ambulance squad and its members were granted summary judgment
pursuant to N.J.S.A. 2A:53A-13, et seq., which grants immunity
413. De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 455 (App. Div.
2002).
414. De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 456 (App. Div.
2002).
415. De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 456 (App. Div.
2002).
416. De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 456 (App. Div.
2002).
417. De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 456 (App. Div.
2002).
418. Lauder v. Teaneck Ambulance Corps, 368 N.J. Super. 320 (App. Div.
2004).
to volunteer first aid squads. At the commencement of trial, the
defendant hospital moved to dismiss because plaintiff did not have
an expert on either the standard of care for hospital employees
transporting patients or on proximate causation. The trial court
dismissed the case. In reversing the dismissal of the case as to
a hospital employee, the appellate court noted that pursuant to
N.J.S.A. 26:2k-14, a paramedic is not liable for civil damages as the
result of an act or omission while rendering “advanced life support
services.” The Appellate Division then concluded that the improper
strapping of a patient to a gurney did not constitute “advanced life
support services.” In so ruling, the Appellate Division relied on
De Tarquino.419 The Appellate Division also rejected the hospital’s
argument that expert testimony is necessary to determine whether
a hospital employee was negligent for failing to strap a patient to a
gurney,420 and therefore reinstated the case.
An emergency medical technician has no duty to attempt or
supervise the rescue of a child in a swimming pool. In Shehaiber v.
University of Medicine and Dentistry/UMDNJ,421 the plaintiff’s child
fell into an unmaintained swimming pool filled with dark, murky
water. The police and EMT units arrived within minutes, but no one
entered the pool for approximately 20 minutes after the emergency
personnel arrived at the scene. The child died the next day. The
parents filed suit and included a claim against the University of
Medicine and Dentistry of New Jersey, and its EMTs, for negligence
in the rescue efforts. The trial court granted UMDNJ’s motion for
summary judgment on the grounds that the EMTs were immune
from liability, citing N.J.S.A. 26:2K-14 and N.J.S.A. 26:2K-29.
Plaintiffs contended on appeal that the EMTs were negligent for
failing to enter the pool during the first 20 minutes to try and rescue
419. Lauder v. Teaneck Ambulance Corps, 368 N.J. Super. 320, 329 (App. Div.
2004)
(relying on De Tarquino v. City of Jersey City, 352 N.J. Super. 450, 456 (App.
Div. 2002));
see also Murray v. Plainfield Rescue Squad, 418 N.J. Super. 574, 586 (App. Div.
2011)
(holding that members of a municipal rescue squad were entitled to
immunity under
N.J.S.A. 26:2K-29 unless the plaintiff demonstrates that the members
either “did not
act in an objectively reasonable manner or with a lack of subjective good
faith.”), rev’d
on other grounds, 210 N.J. 581 (2012); Leang v. Jersey City Bd. of Educ., 198 N.J.
557
(2009) (the Supreme Court construed N.J.S.A. 30:4-27.1 to -31 to provide
immunity to
emergency medical technicians who transported plaintiff after she had been
arrested for
a psychiatric evaluation).
420. Lauder v. Teaneck Ambulance Corps, 368 N.J. Super. 320, 329-30 (App.
Div. 2004).
421. Shehaiber v. Univ. of Med. & Dentistry/UMDNJ, 360 N.J. Super. 330
(App. Div. 2003).
the child, for failing to lead the rescue efforts, and in improperly
rendering aid to the child at the scene. The Appellate Division
held that the statutory immunity applied as to the rendering of
emergency medical assistance, citing De Tarquino. The court also
rejected the claims against the EMTs for failing to enter the pool
and/or supervise the rescue.
The issue, as we view it, is thus not one of immunity
but rather one of duty. Simply put, did the EMTs
have the duty of entering that pool or of supervising
the rescue efforts being simultaneously attempted
by the police and fire fighters at the scene? We are
constrained to conclude that they did not.422
The court added that the existence of a duty is a question of law
to be decided by the court, and that:
There is nothing in this record suggesting that when
police, firefighters and EMTs are simultaneously at
an accident scene where a rescue effort is required,
it is the duty of the EMTs to supervise the rescue
efforts, and plaintiffs point to no legal authority
imposing such a duty upon them. Indeed, the
contrary would appear to be so.423
Similarly, the court held that the EMTs had no duty as a matter
of law to enter the pool. There was nothing in the record to
suggest that
EMTs are required to be trained in or to perform
lifeguard services, and certainly not lifeguard
services in a body of water posing such obvious
risk of harm to a potential rescuer.424
The court therefore affirmed the dismissal of the EMTs from
the case.
422. Shehaiber v. Univ. of Med. & Dentistry/UMDNJ, 360 N.J. Super. 330,
334-35 (App.
Div. 2003).
423. Shehaiber v. Univ. of Med. & Dentistry/UMDNJ, 360 N.J. Super. 330, 335
(App.
Div. 2003).
424. Shehaiber v. Univ. of Med. & Dentistry/UMDNJ, 360 N.J. Super. 330, 335
(App.
Div. 2003).
Good Samaritan Act Immunity
The Supreme Court analyzed the application of New Jersey’s
Good Samaritan Act, N.J.S.A. 2A:62A-1, et seq., in a malpractice
case arising in a hospital setting in Velazquez v. Jiminez.425 This
statute provides that any person who, in good faith, renders
emergency care at the scene of an accident or while transporting
victims to the hospital, is immune for damages as a result of any acts
or omissions of such person in rendering emergency care. However,
in Velazquez, the plaintiff was in a hospital when she experienced
complications during delivery of her child. Dr. Jiminez, the
attending physician, sought assistance and Dr. Ranzini responded
and helped deliver the infant. The child was born with severe brain
injuries and died prior to his third birthday.
The plaintiff filed a lawsuit against both physicians and the case
against Dr. Jiminez settled. The case against Dr. Ranzini went to
trial and the jury allocated three percent of the fault to Dr. Ranzini.
The trial court held that the Good Samaritan Act did not insulate
Dr. Ranzini from liability but entered a judgment notwithstanding
the verdict on other grounds. The Appellate Division reversed the
entry of the judgment notwithstanding the verdict and affirmed
the holding that the Good Samaritan Act did not exculpate
Dr. Ranzini. The Supreme Court granted Dr. Ranzini’s petition
for certification and affirmed.
The question in Velazquez was whether the statute immunizes a
physician who assists a patient during a medical emergency in the
hospital. Justice Long traced the Good Samaritan Doctrine to its
origin in a New Testament parable.426 The Velazquez Court noted that
all 50 states have enacted some form of Good Samaritan legislation,
and that there are many variations of statutes, some of which explicitly
immunize conduct which takes place in a hospital and others which do
not, including New Jersey’s Good Samaritan statute. After reviewing
numerous law review discussions of the statute, the Court concluded
that New Jersey’s Good Samaritan statute does not immunize
conduct which occurs in the hospital. The Court explained that the
purpose of the statute, “to encourage the rendering of medical care
to those who would not otherwise receive it, by physicians who come
425. Velazquez v. Jiminez. 172 N.J. 240 (2002).
426. See Luke 10:30-37 (King James).
upon such patients by chance, without the benefit of the expertise,
assistance, equipment, or sanitation that is available in a hospital
or medical setting,” is best satisfied by its exclusion of in-hospital
negligence.427 The Court also rejected Dr. Ranzini’s contention that
not extending Good Samaritan immunity to a hospital setting “will
encourage physicians to simply stand by and allow patients to suffer
or die.”428 The Court would not “impute such conduct to the highly
respected medical profession.”429
The New Jersey Medical Care Access and Responsibility and
Patients First Act,430 grants an immunity to health care professionals
in certain “Good Samaritan” situations. N.J.S.A. 2A:62A-1.3,
amends New Jersey’s Good Samaritan Act, N.J.S.A. 2A:62A-1, et
seq., and immunizes a health care professional who responds in
a hospital or similar setting to a life-threatening emergency or a
request for emergency assistance in a life-threatening emergency
within a hospital or other health care facility, unless there was
gross negligence, recklessness, or willful misconduct. This section
was enacted in response to Velazquez v. Jiminez.431 However, this
section does not apply if “a provider-patient relationship existed
before the emergency,” if the practitioner was “on-call” and had a
duty to respond to “a patient emergency situation,” or if the health
care professional is paid for the service rendered.
Additionally, the health care professional is not liable for failing
to obtain informed consent in an emergency situation when the
failure to inform is due to the fact that the patient was unconscious,
the health care professional reasonably believed that the procedure
was emergently needed or there was insufficient time to fully
inform the patient, or the patient was incapable of giving informed
consent and there was insufficient time to obtain the informed
consent of the person authorized to give such consent for the
patient. This provision only applies to failure to obtain informed
consent and not to claims for negligent treatment or the failure to
render treatment.
427. Velazquez v. Jiminez. 172 N.J. 240, 259 (2002).
428. Velazquez v. Jiminez. 172 N.J. 240, 262 (2002).
429. Velazquez v. Jiminez. 172 N.J. 240, 262 (2002).
430. N.J.S.A. 2A:53A-37, et seq.
431. Velazquez v. Jiminez, 172 N.J. 240 (2002).
Tort Claims Act and Public Entity
Immunity
A discussion of tort claim immunity is beyond the scope of this text.
However, several issues relating to tort claims immunity are of special
significance to the medical malpractice litigator. Perhaps the most
important of these issues is whether physicians who enter into various
contracts with the University of Medicine and Dentistry of New
Jersey are public employees pursuant to N.J.S.A. 59:1-3, and therefore
entitled to a notice of tort claim within 90 days of the malpractice.
The Notice of Tort Claim
The Tort Claims Act requires filing of the notice within 90 days
of accrual of the claim.432 The time to file a claim may be extended
to one year following the accrual if there are “extraordinary
circumstances” for the failure to file a claim within 90 days.433
It should be noted that N.J.S.A. 59:8-10 dictates, “[s]ervice of
the notice required by this chapter upon the public entity shall
constitute constructive service upon any employee of that entity.”
The accrual language in the Tort Claims Act has been given the
same expansive definition found in the statute of limitation cases.
In Torres v. Jersey City Medical Center,434 plaintiff sought leave
to file a late notice of tort claim against a public entity pursuant
to N.J.S.A. 59:8-9. Plaintiff had received radiation therapy at the
Jersey City Medical Center in August 1973, and was advised in
January 1975 that her ovaries had been damaged as a result of
over-exposure to X-rays. Plaintiff sought an attorney, but was not
able to retain one until November 1975, at which time the motion
for leave to file a late notice of tort claim was filed. The court noted
that the Tort Claims Act provides a trial judge with discretion to
permit the filing of a late notice of tort claim within one year “after
the accrual of the claim.”435 The court concluded that the definition
432. N.J.S.A. 59:8-8.
433. N.J.S.A. 59:8-9.
434. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323 (Law Div. 1976).
435. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 326 (Law Div. 1976)
(citing
N.J.S.A. 59:8-9).
of the meaning of “accrual” within the Tort Claims Act was novel
and looked to the meaning of accrual in the context of the statute
of limitations, N.J.S.A. 2A:14-2.436 The court explained that the fact
that the Legislature used the same term in the tort claims statute
that it utilized in the statute of limitations meant “the Legislature
intended that it should have the same meaning and be applied in
the same fashion as in the Statute of Limitations.”437 The court
then applied the holding of Lopez and Fernandi, and concluded
that the plaintiff’s cause of action accrued when she was told that
her ovaries had been damaged by radiation. After reaching this
decision, the court engaged in the two-step analysis, the first being
whether there was sufficient reason for plaintiff’s having failed to
file within 90 days of the date of accrual and the second whether
granting leave to file a late notice of claim would “substantially
prejudice the public entity.”438 The court excused plaintiff’s delay
noting that it was due to her inability to obtain an attorney.
Within the limits of her own nonlegal abilities
she exercised reasonable care and diligence.
Delay in obtaining legal advice due solely to the
understandable reluctance of attorneys to handle
a complex and difficult case of questionable value
is excusable and understandable. Inability to
obtain representation can be as incapacitating as
a physical disability. … It should not act to bar
plaintiff’s claim.439
The court also determined that the public entity would not be
prejudiced since it in fact had “within its possession a complete
record of the treatment.”440 Therefore the court granted plaintiff’s
leave to file a late notice of tort claim. However, Torres was decided
prior to the 1994 amendments to the Tort Claims Act, which
require “extraordinary circumstances” to permit the extension of
time to file a notice of tort claim.
436. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 326 (Law Div. 1976)
(citing
Lopez v. Swyer, 62 N.J. Super. 267 (1973) and Fernandi v. Strully, 35 N.J. 434
(1961)).
437. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 326 (Law Div. 1976).
438. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 327 (Law Div. 1976).
439. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 327 (Law Div. 1976).
440. Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323, 328 (Law Div. 1976).
See also Maher v. County of Mercer,441 holding that a cause of
action accrued for notice of tort claim purposes when the plaintiff
possessed “the two pieces of information that are the key to the
discovery rule, namely an injury and ‘facts’ suggesting that a third
party may be responsible.”442
Requirement of Notice of Tort Claim
for Public Employees
In Wajner v. Newark Beth Israel Medical Center,443 plaintiff
alleged that several residents at the Newark Beth Israel Medical
Center were negligent. The residents were employees of the
University of Medicine and Dentistry and assigned to a residency
program at Newark Beth Israel pursuant to an affiliation agreement
between the two institutions. The plaintiff did not serve a notice
of tort claim on the residents, and the trial court granted summary
judgment to the residents. The Appellate Division affirmed, holding
that the residents were public employees for purposes of the Tort
Claims Act and thus entitled to service of a notice of claim. See
also Eagan v. Boyarsky and Lowe v. Zarghami discussed in § 8-8:4.
Time to Serve Notice of Claim in Malpractice Cases
Eagan and Lowe Opinions
Eagan v. Boyarsky: Public Employee Status Unclear
The Supreme Court re-examined the application of the notice
provisions of the Tort Claims Act in medical malpractice cases
in Eagan v. Boyarsky,444 and the companion case of Lowe v.
Zarghami.445 In Eagan, the defendants were physicians employed
by UMDNJ but practicing medicine at a private hospital, Robert
Wood Johnson. The defendants operated on the plaintiff in October
1994, and plaintiff discovered the possibility of malpractice in
December 1994. Plaintiff filed suit in September 1996, and both
441. Maher v. Cnty. of Mercer, 384 N.J. Super. 182 (App. Div. 2006).
442. Maher v. Cnty. of Mercer, 384 N.J. Super. 182, 188 (App. Div. 2006)
(citing Ayers v.
Jackson Twp., 106 N.J. 557, 582 (1987)).
443. Wajner v. Newark Beth Israel Med. Ctr., 298 N.J. Super. 116 (App. Div.
1997).
444. Eagan v. Boyarsky, 158 N.J. 632 (1999).
445. Lowe v. Zarghami, 158 N.J. 606 (1999).
defendants filed answers asserting that they were public employees
and that plaintiff failed to file a Notice of Tort Claim. Eagan never
attempted to file a late Notice of Tort Claim because counsel for
plaintiff believed that the trial court lacked jurisdiction to hear
a motion for leave to file a late notice of claim after one year
pursuant to N.J.S.A. 59:8-9. The trial court initially granted
summary judgment to the defendants in October 1997, but then
reconsidered and reversed itself after the Appellate Division issued
its opinion in Lowe v. Zarghami.446
The Eagan Court first reiterated that UMDNJ is a public entity
pursuant to the TCA, citing Fuchilla v. Layman.447 The Court noted
that the TCA did not require that notice be given to public employees
until 1994 when, in response to Chatman v. Hall,448 the TCA was
amended to require that notice be given to public employees within
90 days of the accrual of the claim. The Court then held that the
defendants were employees of UMDNJ, and not independent
contractors, and therefore entitled to a Notice of Tort Claim.449
However, in Eagan the plaintiff never attempted to file a late
Notice of Tort Claim, even after being advised of the public
employee status of the defendants. Nevertheless, the Supreme
Court held that this was not a bar to the pursuit of the claim:
However, unlike Lowe, Eagan did not file a notice of
a late claim nor did he file a complaint within one
year of the accrual of his claim. However, within six
months of his operation, plaintiff had contacted his
original attorney, who apparently took no action,
and within the normal two-year period for medical
malpractice cases had filed medical malpractice
complaints against defendants. Eagan did not
receive information indicating that Dr. Boyarsky
and Dr. Mackenzie were public employees until
17 months after the claim was filed. As a result,
he undoubtedly believed that a late notice of claim
446. Lowe v. Zarghami, 305 N.J. Super. 90, 97 (App. Div. 1997), rev’d, 158
N.J. 606
(1999).
447. Fuchilla v. Layman, 109 N.J. 319 (1988).
448. Chatman v. Hall, 128 N.J. 394 (1992).
449. Eagan v. Boyarsky, 158 N.J. 632, 639-40 (1999).
would be barred by the one-year time barrier of
N.J.S.A. 59:8-9.450
The Court therefore permitted Eagan to pursue his claim, and
in so doing held that the one-year time limit to file a late Notice of
Tort Claim found in N.J.S.A. 59:8-9 is “tolled” until the plaintiff
knows of the public employee status of the defendants.451 The
Court explained its rationale:
There is no evidence supporting the conclusion that
plaintiff knew defendants were UMDNJ employees.
Indeed, plaintiff had no reason to suspect that his
doctors were even associated with a public entity.
He followed the procedures necessary to claim
medical malpractice against a physician in ordinary
circumstances. Like plaintiffs in Feinberg v. State
D.E.P., 137 N.J. 126 (1994); Zwirn v. County of
Hudson, 137 N.J. Super. 99 (Law Div. 1975); and
Dambo v. Union City Park Comm., 130 N.J. Super.
450 (Law Div. 1974), he diligently pursued his
claim. Like those plaintiffs he was thwarted in his
action because the employment status of his doctors
was obscured. We do not think the Legislature
contemplated that the one-year ban would be used
to bar a plaintiff-patient from pursuing his medical
malpractice claim against a physician whom he had
no reason to believe was a public employee. In such
unique circumstances, we find that the legislature
intended the one-year ban provided under N.J.S.A.
59:8-9 to be tolled. Accordingly, plaintiff should
be entitled to file a late notice of claim.452
The Court added that a late notice of claim would not cause
prejudice “because the doctors are required to keep medical records
in the ordinary course.”453 The Court did not specify the length of
time that the one-year provision of N.J.S.A. 59:8-9 is tolled, but
the only fair reading of the opinion is that the notice provision is
450. Eagan v. Boyarsky, 158 N.J. 632, 640-41 (1999).
451. Eagan v. Boyarsky, 158 N.J. 632, 643 (1999).
452. Eagan v. Boyarsky, 158 N.J. 632, 642-43 (1999).
453. Eagan v. Boyarsky, 158 N.J. 632, 643 (1999).
tolled until the plaintiff knew, or at least should have known, of
the public employee status of the doctor. The Court reiterated that
“to avoid this problem in the future,” UMDNJ must require its
employees to give written and oral notice that they are employees
of UMDNJ, and the Court again suggested that identification
badges be worn by the UMDNJ doctors.454
Lowe v. Zarghami: Extraordinary Circumstances
The Court reached the same conclusion in Lowe v. Zarghami.455
In Lowe, the defendant was a physician employed by the University
of Medicine and Dentistry of New Jersey but practicing medicine
at a private hospital, Kennedy Memorial-Stratford. The defendant
operated on the plaintiff in September 1994, and plaintiff discovered
the possibility of malpractice in August 1995. Plaintiff filed suit in
February 1996 and the defendant filed an answer asserting that he
was a public employee and that plaintiff had failed to file a Notice
of Tort Claim. In July 1996, Lowe filed a motion for leave to file
a late Notice of Tort Claim. The trial court denied the plaintiff’s
motion and granted summary judgment to the defendant. The
Appellate Division reversed, holding that the defendant was not
an employee of UMDNJ, but rather an independent contractor,
and therefore a Notice of Tort Claim was not required.456
The Supreme Court reiterated that UMDNJ is a public entity
pursuant to the Tort Claims Act, citing Fuchilla v. Layman.457 As in
Eagan, the Court noted that the Tort Claims Act did not require that
notice be given to public employees until 1994 when, in response
to Chatman v. Hall,458 the TCA was amended to require that notice
be given to public employees within 90 days of the accrual of the
claim.459 The Lowe Court held that the defendant was an employee
of UMDNJ, and not an independent contractor, and therefore
entitled to a Notice of Tort Claim.
454. Eagan v. Boyarsky, 158 N.J. 632, 643 (1999).
455. Lowe v. Zarghami, 158 N.J. 606 (1999).
456. See Lowe v. Zarghami, 305 N.J. Super. 90, 97 (App. Div. 1997), rev’d, 158
N.J. 606 (1999).
457. Fuchilla v. Layman, 109 N.J. 319 (1988).
458. Chatman v. Hall, 128 N.J. 394 (1992).
459. Lowe v. Zarghami, 158 N.J. 606, 615 (1999) (citing N.J.S.A. 59:8-3 and 8).
Because Dr. Zarghami was totally economically
dependent on UMDNJ and his work constituted
an integral part of UMDNJ’s business, both
aspects of the relative nature of the work test are
satisfied. Therefore, we conclude that UMDNJ
faculty, like Dr. Zarghami, practicing in affiliated
private hospitals are public employees.460
The Lowe Court then stated that the time to file a claim may be
extended to one year following the accrual of the claim if there
are “extraordinary circumstances” which justify the failure to file
a claim within 90 days.461 The Court concluded that Lowe’s case
presented extraordinary circumstances, and therefore plaintiff
should have been permitted to file a late Notice of Tort Claim.
Although the exact identity of the tortfeasor,
Dr. Zarghami, was known, his status as a public
employee was obscured by his apparent status as a
private physician. Plaintiff’s failure to file a notice
of claim arose not from any lack of diligence; to the
contrary, plaintiff filed her claim within the twoyear
limitation period applicable to malpractice
claims against a private physician. What is unusual
in this case and in Eagan v. Boyarsky, supra, 158
N.J. at 638, also decided today, is that unlike
most cases involving public entities and public
employees, the defendant-doctors were performing
tasks associated generally with private practice and
not public service.462
The Court concluded that since Lowe had complied with all of
the requirements of a typical malpractice claim, and since plaintiff
did not know that the defendant was employed by UMDNJ, “the
circumstances in this case qualify as extraordinary” pursuant
to the meaning of the Tort Claims Act.463 The Court explained
that a late Notice of Tort Claim would not result in any prejudice
to the defendant or UMDNJ, primarily due to the requirement
460. Lowe v. Zarghami, 158 N.J. 606, 623 (1999).
461. Lowe v. Zarghami, 158 N.J. 606, 624 (1999) (citing N.J.S.A. 59:8-9).
462. Lowe v. Zarghami, 158 N.J. 606, 629 (1999).
463. Lowe v. Zarghami, 158 N.J. 606, 629 (1999).
that the defendants maintain medical records.464 The Lowe Court
concluded by instructing UMDNJ to “require clinical professors
employed by them to advise their patients, both orally and in
writing, that they are employees of UMDNJ.”465 The Court added
that it “would be helpful if clinical professors’ [sic] wore badges
identifying themselves as UMDNJ employees.”466
Ventola and Confusion about Federal or State Status
of Institution
The Supreme Court applied the principles announced in Eagan
and Lowe in Ventola v. N.J. Veteran’s Memorial Home,467 where the
plaintiff was a resident of the New Jersey Veteran’s Memorial Home
in Paramus. Plaintiff alleged that he had suffered an undiagnosed
broken leg for approximately four weeks while at the defendant
institution, and that as a result gangrene set in and the leg had to
be amputated in November 1997. Plaintiff consulted an attorney
in December 1997 and advised their attorney that the Veteran’s
Memorial Home was a federal hospital. Plaintiff’s counsel filed
a Federal Tort Claims Notice in April 1998. In May 1998 the
Department of Veteran’s Affairs notified the plaintiff’s attorney
that the facility was operated by the State of New Jersey. Plaintiff
then moved for leave file a late notice of claim. The defendant
argued that the plaintiff’s belief that the facility was a federal
institution, as opposed to a state institution, was unreasonable.
The defendant pointed to numerous documents which identified
the State of New Jersey, Department of Military and Veteran’s
Affairs, New Jersey Veteran’s Memorial Home at Paramus and
other documents indicating the facility was run by the State of New
Jersey. The trial court denied the plaintiff’s motion, holding that
the plaintiffs failed to demonstrate extraordinary circumstances.
The court specifically found the plaintiff’s belief that the facility
was run by the federal government to be unreasonable because the
464. Lowe v. Zarghami, 158 N.J. 606, 631 (1999).
465. Lowe v. Zarghami, 158 N.J. 606, 631 (1999).
466. Lowe v. Zarghami, 158 N.J. 606, 631 (1999).
467. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74 (2000).
plaintiffs were in possession of information clearly indicating that
the facility was a state run institution.468 The Appellate Division
affirmed, but the Supreme Court reversed, noting that “[t]he United
States Veteran’s Health Administration is perhaps ‘the most visible
of all veteran’s benefits and services.’ ”469 The Court noted that the
Veteran’s Administration runs 173 medical centers, 391 outpatient
community clinics, and 131 nursing clinics, and that the
VA is currently associated with 105 medical
schools, fifty-four dental schools, and more than
1,140 other schools across the United States. … In
New Jersey, there are twelve facilities that provide
health-care services to veterans of the armed forces
of the United States. All of them fall under the
Veterans’ Health Administration.470
The Court noted that the State of New Jersey, Department
of Military and Veteran’s Affairs also runs three veteran homes
in New Jersey and that the relationship between the federal and
New Jersey institutions is “close.”471 The court concluded that the
confusion between the federal and state institutions constituted
extraordinary cause and therefore reversed, stating
[t]he notice provisions of the Tort Claims Act are
well-suited to a fall on the steps of a court house
or on an obstruction on a public sidewalk … the
problem lies in applying these simple concepts in
more complex areas, such as medical malpractice
or toxic tort causation.472
The Court held that the plaintiff’s “understandable confusion
concerning the status of the veteran’s home operated by the State
Department of Military and Veteran’s Affairs, should not bar the
presentation of their claim.”473 The Court noted that as in Lowe, the
plaintiffs “[d]id not sleep on their rights and their conduct did not
prejudice VMH in its defense of the case. We can be certain, as in
468. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 79-80 (2000).
469. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 80 (2000).
470. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 80-81 (2000).
471. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 81 (2000).
472. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 82 (2000).
473. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 82 (2000).
Lowe, that the circumstances of this incident are fully documented
in the records of VMH.”474 The Court therefore concluded:
Finally, we observe that, after Lowe, this should
be the last such occasion to apply its principles.
Presumably, if State health-care providers wish to
rely on the notice provisions of the TCA, they will
have made their status clear to patients.
It is a paradox that health-care providers who
have a duty to monitor the health of their patients
should complain that they did not have notice that
a patient’s health had been harmed. In light of the
harsh consequences of noncompliance, perhaps the
Legislature will wish to revisit the issue of late notice
under the Tort Claims Act in this context of State
medical services and other more complex areas
of causation. There is something unsettling about
encouraging physicians to tell their patients at first
treatment: ‘I am your doctor. I am an employee of
the State of New Jersey. If you have reason to believe
that I have treated you improperly, you have ninety
days within which to make a claim against me.’475
The Supreme Court therefore permitted plaintiff to pursue the case.
D.D. v. UMDNJ and Emotional Distress
as Extraordinary Circumstances
In D.D. v. University of Medicine and Dentistry,476 the Supreme
Court again considered extraordinary circumstances permitting
the filing of a late notice of tort claim pursuant to N.J.S.A.
59:8-9.2. The plaintiff in the case alleged that she discovered on
November 24, 2009 that her personal health information had
been “‘widely disseminated via Rutgers’ and UMDNJ’s websites,
various newspapers, and other media sources.’ ”477
474. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 82 (2000).
475. Ventola v. N.J. Veteran’s Mem’l Home, 164 N.J. 74, 83 (2000).
476. D.D. v. Univ. of Med. & Dentistry, 213 N.J. 130 (2013).
477. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *2 (N.J. Super. App. Div. June 27, 2011), rev’d, 213
N.J. 130, 135-36
(2013).
The plaintiff immediately sent a letter to Rutgers and UMDNJ
demanding that they cease disseminating the information, and
in December of 2009, met with representatives of UMDNJ and
Rutgers and their attorneys. Plaintiff certified that she thought
that “the parties wished to resolve the issue ‘informally’ ” based
upon statements made at the meeting.478 However, the matter did
not settle and on April 7, 2010, plaintiff retained an attorney who
promptly filed a Notice of Tort Claims upon UMDNJ and Rutgers.
UMDNJ deemed the notice out of time and the claim barred.479
The plaintiff therefore filed a motion for leave to file a late notice
of tort claim. The trial court granted the application, noting that it
was filed within one year as permitted provided by N.J.S.A. 59:8-9.
The trial court based the decision upon the fact that the plaintiff
had notified the public entities immediately upon discovery of the
disclosure of the personal health information and had met with
representatives of those entities within 90 days.480
Significantly, the trial court also found the impact of emotional
distress caused by the unauthorized disclosure of her personal
medical history provided “‘sufficient reasons to substantiate a
finding of exceptional circumstances as required by section 59:8-9
of the Tort Claims Act.’ ”481 Finally, the trial court observed
that the entities did not even contend that they had suffered any
“‘substantial prejudice ... as a result of allowing a late filing of a
notice of claim.’ ”482
In affirming, the Appellate Division concluded that the plaintiff
did present extraordinary circumstances justifying the late notice
of tort claim, and specifically held that a claimant’s emotional
478. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *3 (N.J. Super. App. Div. June 27, 2011), rev’d, 213
N.J. 130, 135-36
(2013).
479. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *4-5 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130, 135-36
(2013).
480. D.D. v. Univ. of Med. & Dentistry, 213 N.J. 130, 137, 139-40 (2013).
481. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *8-9 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130, 135-36
(2013).
482. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *9 (N.J. Super. App. Div. June 27, 2011), rev’d, 213
N.J. 130, 135-36
(2013).
distress does not have to be totally disabling to be relevant to the
decision whether to grant leave to file a late notice of tort claim:
At the outset, we disagree with the approach
of both defendants in parsing out the grounds
that provided sufficient reasons for satisfying
the extraordinary circumstance standard. It is
the totality of the circumstances against which
plaintiffs situation must be measured. The trial
court did not indicate that plaintiff was too
incapacitated to proceed. However, her medical
condition had her psychologically stymied and
represented an inhibiting and distracting force in
her pursuing a timely filing.483
The Appellate Division noted that the plaintiff had in fact
provided all of the information that was required in a notice of tort
claim, and was satisfied the reason for a notification requirement
was served.484 In so doing, the court utilized the doctrine of
substantial compliance to justify its decision.485
Here, plaintiff has substantially complied with the
notice requirement and the public entities were both
in an early position to adequately investigate the
facts, have an opportunity to correct the practices
that gave rise to the claim, and could determine
what type of liability reserve might be required. All
of this was well within the ninety day timeframe.
Indeed, it had occurred in less than a month from
when the damaging disclosure was brought to
plaintiff’s attention on November 24, 2009.486
483. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *11-12 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130,
135-36 (2013).
484. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *13-14 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130,
135-36 (2013).
485. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *14-15 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130,
135-36 (2013).
486. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *14-15 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130,
135-36 (2013).
Finally, the court also observed that neither entity even claimed
that it had suffered any prejudice.487 Given all of the factors,
the court concluded that the trial judge exercised appropriate
discretion and affirmed the granting of the motion to file a late
notice of claim.488
However, the Supreme Court reversed the appellate division
ruling, stating it was inappropriate to apply the substantial
compliance doctrine for a failure to timely file the notice because
the doctrine was only applicable to situations in which a notice was
timely filed but had a technical deficiency.489 Further, the Court
said that plaintiff’s evidence of her emotional distress and her first
attorneys’ inattentiveness and failure to timely file notice didn’t
satisfy the extraordinary circumstances threshold set by prior
decisions.490 The Court concluded:
We do not find in the statutory language an intention
that the increased threshold of extraordinary
circumstances can be satisfied by coupling an
attorney’s inattentiveness with otherwise inadequate
medical proofs. On the contrary, were we to conclude
that inattention or even malpractice of an attorney
can serve to vault the statutory threshold for relief,
we would be replacing circumstances that rendered a
plaintiff incapable of complying with the time frame
with a standard more in the nature of inadvertence,
negligence, inattentiveness or ignorance.491
Application of Tort Claim Act Immunity
In Kemp by Wright v. New Jersey,492 the Court considered
whether N.J.S.A. 59:6-4 immunized the defendants for damages
arising out of the administration of a rubella vaccine to a pregnant
487. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *17 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130, 135-36
(2013).
488. D.D. v. Univ. of Med. & Dentistry, No. A-5418-09T3, A-5676-09T3,
2011 N.J. Super.
Unpub. LEXIS 1680, at *17 (N.J. Super. App. Div. June 27, 2011), rev’d,
213 N.J. 130, 135-36
(2013).
489. D.D. v. Univ. of Med. & Dentistry, 213 N.J. 130, 159 (2013).
490. D.D. v. Univ. of Med. & Dentistry, 213 N.J. 130, 149-58 (2013).
491. D.D. v. Univ. of Med. & Dentistry, 213 N.J. 130, 157-58 (2013).
492. Kemp by Wright v. New Jersey, 147 N.J. 294 (1997).
high school student. The statute provides immunity for a person
performing an examination to determine whether a person “has
a disease or physical or mental condition that would constitute a
hazard to the health or safety of himself or others.”493 However,
there is no immunity for “treatment.” The Supreme Court held
that the administration of a vaccine is treatment, citing various
medical textbooks and dictionaries and also Calabrese v. Trenton
State College.494 The Court therefore held that the Tort Claims Act
does not immunize this conduct.
The loss of a fetus satisfies the tort threshold found in the New
Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. In Willis v. Ashby,495
the parents appealed from an order dismissing their complaint against
the University of Medicine and Dentistry and physicians employed
by the State of New Jersey arising out of a stillbirth. The trial court
ruled that this claim did not satisfy the Tort Claims Act (TCA)
threshold for damages for pain and suffering, i.e., “permanent loss
of bodily function, permanent disfigurement or dismemberment.”496
The Appellate Division reversed, holding that the claim of the loss
of a fetus caused by negligent medical care could satisfy the TCA’s
threshold for pain and suffering damages. The court explained
that emotional distress or psychological harm may qualify as a
“permanent loss of a bodily function” if the psychological injury is
“both permanent and substantial.”497 The Willis court recalled that
the Supreme Court has permitted the parents of a stillborn to bring an
action for damages, citing Giardina v. Bennett and Carey v. Lovett.498
The Willis court therefore reversed and directed that on remand the
plaintiffs must prove “that they suffered a substantial and permanent
loss of a bodily function” and that “permanent psychological harm
in the form of post traumatic stress disorder which is substantial may
493. N.J.S.A. 59:6-4.
494. Calabrese v. Trenton State Coll., 162 N.J. Super. 145 (App. Div. 1978),
aff’d, 82 N.J.
321 (1980).
495. Willis v. Ashby, 353 N.J. Super. 104 (App. Div. 2002).
496. N.J.S.A. 59:9-2(d).
497. Willis v. Ashby, 353 N.J. Super. 104, 110 (App. Div. 2002).
498. Willis v. Ashby, 353 N.J. Super. 104, 110-11 (App. Div. 2002) (citing
Giardina v.
Bennett, 111 N.J. 412, 420 (1988) and Carey v. Lovett, 132 N.J. 44, 45 (1993)).
constitute a permanent loss of a bodily function within the meaning
of N.J.S.A. 59:9-2(d).”499
Voir Dire in Medical
Malpractice Cases
Supreme Court Directive #4-07
The particular issues that arise in medical malpractice cases have
led to the recognition that malpractice cases require special and
specific voir dire. The Supreme Court has issued Directive #4-07,
which created a substantially new process for voir dire. The new
process requires the use of standard general and malpractice-related
questions, and the innovation that potential jurors must be asked a
minimum of three open-ended questions. This process takes more
time, but results in the revelation of considerably more information
about each potential juror.
The revised voir dire process was the product of the Special
Supreme Court Committee on Peremptory Challenges and Voir Dire,
which was appointed by the Supreme Court in 2004, and chaired by
the Hon. Joseph Lisa, J.A.D. The Court charged this committee to
make recommendations to improve jury selection and peremptory
challenges. The “Lisa Committee” issued its report in May 2005.590
Most of the recommendations of the Lisa Committee were adopted
by the Supreme Court in Directive #21-06.591 In May 2007 the Court
refined the procedure when it issued Directive #4-07.592
One of the key recommendations of the Lisa Committee was the
mandatory use of standard questions for all personal injury cases,
with additional standard questions for medical malpractice and other
cases. Perhaps the most significant innovation of the Lisa Committee
was the mandatory use of a standard biographical question, two
omnibus qualifying questions, and a “minimum of three open-ended
questions.” The open-ended questions were explicitly intended to
engage the jurors in a conversation, and thereby give counsel the
opportunity to observe each juror’s demeanor, candor, intelligence,
wealth of knowledge, and views of the world and litigation process.
The courts promptly held that compliance with the Directive is
mandatory.593 More recently, the critical importance of a proper
voir dire was explained in Pellicer v. St. Barnabas Hospital,594
where a verdict was reversed because of an improper voir dire,
and the mandatory nature of Directive #4-07 was confirmed by
Gonzales v. Silver.595
590. The report of the Special Supreme Court Committee on Peremptory
Challenges
and Voir Dire can be found at
http://www.judiciary.state.nj.us/notices/reports/peremptory_
voirdire.pdf.
591. Directive #21-06 can be found at:
www.judiciary.state.nj.us/directive/2006/dir_21_06.pdf.
592. Directive #4-07 can be found at
www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf.
593. See State v. Morales, 390 N.J. Super 470, 474-473 (App. Div. 2007).
594. Pellicer v. St. Barnabas Hosp., 200 N.J. 22 (2009).
595. Gonzales v. Silver, 407 N.J. Super. 576 (App. Div. 2009).
In Pellicer v. St. Barnabas Hospital,596 the Supreme Court
addressed the particular requirements of voir dire in a medical
malpractice case. The Court first reiterated long-standing law that:
As we have described it, ‘a trial court must see to
it that the jury is as nearly impartial as the lot of
humanity will admit.’ State v. Williams, 113 N.J. 393,
441 (1988) (internal quotations omitted). The right
to a fair and impartial jury is a ‘fundamental . . .
[one that is to be] jealously guarded by the courts.’
Wright v. Bernstein, 23 N.J. 284, 294 (1957).597
For this reason, the Court explained that:
In civil litigation, the inquiries needed to uncover
hidden bias of a potential juror may be wide-ranging
and open-ended. Questions designed to determine
whether a particular individual might have a prior
experience that would interfere with the fair and
unbiased performance of the role of juror often
focuses on each juror’s views about the general
subject matter of the trial, the specific parties, and
the larger interest, trade, or professional groups to
which the parties may belong.
More to the point, particularly in matters like
this one, involving personal injuries and medical
procedures, the questions posed frequently delve
into sensitive or personal matters. Those subjects
are often ones that a prospective juror might be
reluctant to discuss candidly if compelled to do so
in open court, but as to which candor is essential.
At the same time, there may be matters that evoke
strong or harsh personal views that the parties
are entitled to explore but that raise the specter
of potential bias to which the others in the venire
should not be exposed. In short, the process of
selecting a fair, unbiased, and impartial jury in a
596. Pellicer v. St. Barnabas Hosp., 200 N.J. 22 (2009).
597. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009).
trial such as the one in this matter can never be
perfunctory or routine.
We do not expect jurors to come to our
courtrooms without any life experiences, any
more than we anticipate that only the illinformed
or reclusive members of society will be
permitted to decide disputes. Instead, our jury
selection mechanisms are designed to create the
opportunity in which any relevant, preconceived
notions will be revealed and explored, and all
pre-existing biases will be exposed. In this way,
we ensure that the court and the litigants have the
information that they need to decide whether a
particular individual should not sit as a member of
the panel.598
The Pellicer Court suggested that voir dire in such cases be
performed primarily at sidebar.
The court must be mindful that any lack of
sensitivity in the voir dire process may result
in the expression of a previously held belief or
of a strong view based on a life experience that,
simply by its expression in open court, will affect
the thinking of the others in the venire. In such a
case, the very real risk remains that a remark might
infect the thinking of others who hear it and that
exercising challenges for cause or peremptorily will
not suffice to cure the defect. This is particularly
true if the fact or opinion expressed is stated with
force or emotion, if it evokes sympathy, or if it casts
blame on any of the parties, those they represent,
or the trade or professional groups to which they
belong. Although a stray, unanticipated remark
or two may be cured by a cautionary admonition
to those who overhear it, the impact of repeated
expressions likely cannot be undone.599
598. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 41-42 (2009).
599. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 42-43 (2009).
The Court then explained that
This trial, with its focus on significant injuries to
a child, presented the trial court with precisely the
sort of dispute in which heightened sensitivity in
jury selection was necessary.600
The Supreme Court criticized the trial court, noting that
apparent concern for expedience took the place of
the care and sensitivity that the issues continued
to demand. Rather than summoning potential
jurors to sidebar for follow up on questions that
should have alerted the court about potential bias,
one after another they were allowed to voice deep
feelings of resentment and bias in open court.601
The Court added:
The few comments that were generally negative
toward plaintiffs were vastly outnumbered by those
potential jurors who described the quality of care
given at St. Barnabas as poor, who expressed anger
and resentment at health care providers, and who
were critical of doctors, nurses, and others in the
hospital’s employ.
Prospective jurors were permitted to describe
a wide variety of negative experiences within the
hearing of the venire, including all of the following.
One potential juror’s mother died while being
treated for cancer at St. Barnabas, and he also
expressed the view that the care his father received
there was so improper that it required transfer to
another hospital. Another potential juror said
that his wife received poor care at St. Barnabas,
leading to her transfer to Overlook Hospital. A
third potential juror was ‘not at all’ satisfied with
the ‘quality of care at St. Barnabas with respect to
[his] grandmother.’ Another potential juror spoke
openly about a medical malpractice suit he brought
600. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 42-43 (2009).
601. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 45 (2009).
against St. Barnabas and about a billing error that
caused that potential juror such ‘bitterness’ that
he described the hospital as having ‘two strikes
against them.’ Still another commented that she
was unsure whether the care her family received at
St. Barnabas would influence her as juror.602
Additionally, many potential jurors complained in open court
about the medical profession in general.
We assume that the trial court intended to
impanel a jury that was both fair and impartial,
but the repeated expressions of anger, resentment,
bitterness, and dissatisfaction, much of it directed
at the very facility where the tragic events that were
about to be considered had taken place, could not
have been ignored by the jurors who overheard
them. Moreover, when compared with the selection
process used in the first trial, the explanations given
by the trial court do not suffice. Permitting potential
jurors to give vent to deep feelings of bias as an
educational technique for those who do not already
have such biases is simply inappropriate. Although
an unexpected expression of bias by a juror may
be unavoidable, intentionally exposing jurors to
expressions of such bitterness, anger, resentment,
and bias serves no legitimate purpose.603
The Court declared that it had no confidence that the jury was
not “tainted” by what they had heard during the voir dire process.
The record here, however, gives us no comfort and
provides no ground on which to conclude that the
jury was the fair and unbiased, impartial decisionmaker
that is fundamental to our system of
justice. Because we can have no confidence that the
selection process resulted in a jury panel that could
fairly and dispassionately evaluate the difficult
and emotionally-charged issues that were central
602. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 45-46 (2009).
603. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 47 (2009).
to this litigation, we cannot permit its verdict
to stand.604
The Court added, in footnotes:
Through our Administrative Determinations,
effectuated by Administrative Directive #21-06,
and revised thereafter by Administrative Directive
#4-07, we embraced Jury Selection Standards,
along with Model Jury Selection Questions, to be
used in both criminal and civil trials. The trial in
this matter predated the effective dates of both of
those directives.605
We are mindful of the fact that our recently
revised jury voir dire procedures demand the use
of open-ended questions. That tool is intended
to give attorneys involved a better opportunity
to hear and evaluate potential panel members for
bias that would support a challenge for cause or, in
the alternative, to assist them in using peremptory
challenges. The open-ended questions, however,
are relatively benign inquiries that will reveal
useful information rather than questions that will
compromise the objectivity of the others.606
Similarly, in Gonzales v. Silver,607 another malpractice case, the
Appellate Division observed that the trial court’s voir dire did not
“technically comply” with Directive #4-07.608 Specifically, the trial
court “failed to ask three open ended questions of each prospective
juror during voir dire, as required by Directive #04-07.”609 Since
the case was being reversed on other grounds, the Appellate
Division instructed that on retrial the voir dire must “conform to
the dictates of the Directives, which are unquestionably binding on
all trial courts.”610 However, the Court added that although
604. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 48 (2009).
605. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 41 n.9 (2009).
606. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 41 n.10 (2009).
607. Gonzales v. Silver, 407 N.J. Super. 576 (App. Div. 2009).
608. Gonzales v. Silver, 407 N.J. Super. 576, 595 (App. Div. 2009).
609. Gonzales v. Silver, 407 N.J. Super. 576, 596(App. Div. 2009).
610. Gonzales v. Silver, 407 N.J. Super. 576, 598 (App. Div. 2009).
we consider it error not to have asked the requisite
open ended questions. … We also recognize that a
certain residual discretion resides in the trial judge
to accommodate the individual circumstances of
each case and the consensus views of counsel, even
when doing so renders the voir dire procedure
less than fully conforming to the Directives’
mandates.611
The Court explained that although the standard voir dire
questions are
mandatory, judges in their discretion may alter
the sequence of the questions as they determine is
appropriate, including whether to ask key challenge
for cause questions early on, to incorporate
questions suggested by counsel, or to integrate
case type specific questions.612
The Court supported this conclusion by observing that the
Report of the Lisa Committee explained that judges are not
required to follow a “rigid script” in conducting voir dire.”613 This
point is significant, in that the voir dire can be customized to fit the
particular facts and circumstances of the case about to be tried.
This concept is consistent with Jury Selection Standard 2, which
provides that “with the consent of counsel and the approval of the
judge, full use of the model questions in civil trials may be waived.”
Nevertheless, Gonzales makes clear that compliance with Directive
#4-07, is mandatory, absent such a waiver.
Use of Standard and Open-Ended
Voir Dire Questions
When considering the use of voir dire in medical malpractice
cases, two points must be emphasized. First, the attorney must insist
on the full process, including the use of the standard basic voir dire
questions, the standard medical malpractice questions, and the use
of truly open-ended questions. The Gonzales Court observed
611. Gonzales v. Silver, 407 N.J. Super. 576, 597 (App. Div. 2009).
612. Gonzales v. Silver, 407 N.J. Super. 576, 597 (App. Div. 2009).
613. Gonzales v. Silver, 407 N.J. Super. 576, 597 (App. Div. 2009).
although the judge admittedly failed to ask three
open ended questions of each prospective juror
during voir dire, as required by Directive #04-07,
plaintiff was somewhat complicit in the procedure
ultimately employed.614
Similarly, in the unpublished case of Molan v. McDivitt,615 the
Court denied an appeal based upon an inadequate voir dire. The
Court explained: “Considering this record on appeal, we are
reluctant to overturn the verdict where counsel has acquiesced in
the selection process.”616 Thus, the first lesson to be learned is that
one may have to fight for the right to voir dire. One must make a
clear and unambiguous record if not granted a proper voir dire.
The failure to do so may preclude a successful appellate review of
this issue.
Second, and most importantly, one must use truly “open-ended”
questions, i.e., questions that cannot be answered with a yes or no,
and that permit insight into the potential juror’s thought process.
Some examples of truly open-ended questions include:
1: Who are the two people outside of family and friends
that you most admire, and two people that you least
admire, and why do you feel that way?
2: What would you do to solve the problem of people who
do not have medical insurance?
3: What would you do to solve the problems of the
homeless?
4: What do you think are the biggest problems with our
system of justice, and what would you do to change it?
Peremptory Challenges
The issue of the grant of increased peremptory challenges to a
plaintiff in a multi-defendant malpractice case was discussed by
the Supreme Court in Velazquez v. Portadin.617 The Court, after
614. Gonzales v. Silver, 407 N.J. Super. 576, 596 (App. Div. 2009).
615. Molan v. McDivitt, No: A-1600-08T3, 2009 N.J. Super. Unpub. LEXIS
2730 (App.
Div. 2009), certif. denied, 201 N.J. 157 (2010).
616. Molan v. McDivitt, No: A-1600-08T3, 2009 N.J. Super. Unpub. LEXIS
2730, at *6
(App. Div. 2009), certif. denied, 201 N.J. 157 (2010).
617. Velazquez v. Portadin, 163 N.J. 677, 692 (2000).
ruling that a new trial was warranted on other grounds, addressed
the question to be raised on remand of a motion for an increase in
peremptory challenges.
Although the ordering of a new trial makes it
unnecessary for us to grapple with plaintiffs’
complaints about the voir dire, we take this
opportunity to make several observations. The
first is in connection with plaintiffs’ application
for additional peremptory challenges. Plaintiffs
contend that under Rule 1:8-3(c) they were entitled
to additional peremptory challenges beyond the
six granted under normal circumstances because
defendants had eighteen peremptory challenges
between them and a substantial identity of interest
in one or more issues.618
The Court first observed that:
Rule 1:8-3(c) provides:
In civil actions each party shall be entitled to 6
peremptory challenges. Parties represented by
the same attorney shall be deemed 1 party for the
purposes of this rule. Where, however, multiple
parties having a substantial identity of interest
in one or more issues are represented by different
attorneys, the trial court in its discretion may, on
application of counsel prior to the selection of
the jury, accord the adverse party such additional
number of peremptory challenges as it deems
appropriate in order to avoid unfairness to the
adverse party.619
The Court explained that any “substantial disproportion between
the number of plaintiff’s peremptory challenges, and the collective
peremptory challenges of the defendants” put the plaintiff at an
‘extreme disadvantage in the rejection of prospective
jurors … [and the] right to have [the] case heard
by an impartial panel is severely compromised. …’
618. Velazquez v. Portadin, 163 N.J. 677, 691 (2000).
619. Velazquez v. Portadin, 163 N.J. 677, 691 (2000).
George v. Bergen Pines Hospital, 217 N.J. Super.
548, 55l (Law Div. 1987).620
Indeed, in Velazquez the plaintiffs had exhausted all available
challenges, and
[t]hus, the fundamental requirement for seeking
extra peremptory challenges was met. Russell v.
Rutgers Community Health Plan, Inc., 280 N.J.
Super. 445, 456 (App. Div. 1995), certif. denied, 142
N.J. 452 (1995).621
The Supreme Court criticized the trial court, which had “cursorily
found that the defendants ‘had individual clients with individual
theories presented against them,’ and denied the additional
challenges.”622
The Court acknowledged that the “grant or denial of extra
peremptory challenges under Rule 1:8-3(c) is a matter of discretion,”
but added that this must not be an “arbitrary exercise:”
On the contrary, the court is required to analyze
the positions of the multiple parties for identity
purposes to determine whether the adversary will
be prejudiced unless more peremptory challenges
are awarded.623
The Court added:
Here, the trial court failed to address the substantial
identity of interests of these defendants. All three
defended the case on the basis of the exercise of
judgment; the unknown etiology of cerebral palsy;
the claim that Mrs. Velasquez constantly was
monitored while on Pitocin; the claim that the
monitor strips were readable; and the claim the
information revealed by the strips gave defendants
no reason to stop the Pitocin or otherwise intervene.
What was required of the trial court was a focus
on the specific facts and theories of the parties,
620. Velazquez v. Portadin, 163 N.J. 677, 691 (2000).
621. Velazquez v. Portadin, 163 N.J. 677, 691 (2000).
622. Velazquez v. Portadin, 163 N.J. 677, 691-92 (2000).
623. Velazquez v. Portadin, 163 N.J. 677, 692 (2000).
followed by a reasoned judgment about the identity
of their interests and the need for plaintiffs to be
awarded additional peremptory challenges.
Because the case must be retried, we need not pass
on the effect of the denial of the extra challenges.
This much is clear however: when a request is made
for additional peremptory challenges under Rule
1:8-3(c), the lawyers and the court must parse out
the theories of the parties in detail for the record
so that an identity determination can be made.
Merely concluding that there is or is not such an
identity is inadequate; a statement of reasons for
ruling is required.624
See also Cohen v. Community Medical Center,625 where the
court addressed the “prophylactic measures a trial judge should
employ when confronted with pretrial and mid-trial publicity.”626
On the day that jury selection began, the lead story on the front
page of the local newspaper was an article entitled, “Insurance
Issue Could Shut ER.” Under the headline was stated, “If
Community Medical Center can’t secure insurance for its ER
doctors, it could be forced to close.” Alongside the article was
a photograph of the defendant. Under the photograph was a
caption stating, “If Community Medical Center doesn’t secure
insurance for its emergency department physicians by 11:59 p.m.
Friday, the state’s busiest ER may be forced to close.” There
were two more articles discussing the doctors’ strike; “Southern
Ocean doctors will join statewide job action” and “Coalition:
Doctors are targeting wrong enemy.” All three articles “discussed
the rising cost of medical malpractice insurance, and stated that
doctors attributed the rise to high jury verdict awards in medical
malpractice lawsuits.”
The trial judge nevertheless denied a request for an adjournment
because of the age of the case and because of the belief that
the medical malpractice insurance issues were not going to go
away in the near future. The plaintiff appealed a verdict in favor
624. Velazquez v. Portadin, 163 N.J. 677, 692 (2000).
625. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387 (App. Div. 2006).
626. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 392 (App. Div. 2006).
of the defendants, contending that the trial court failed to give
appropriate cautionary instructions. In reversing, the Appellate
Division instructed:
Article 1, Paragraph 9 of the New Jersey
Constitution ‘guarantees a civil litigant a right to
an impartial jury.’ … Thus, jurors in all cases “must
be ‘as nearly impartial as the lot of humanity will
admit.’ ” …
Therefore, when possible prejudice to a litigant’s
right to a fair trial arises as a result of pre- or
mid-trial publicity, the trial court has various
means available to ensure juror impartiality, such
as adjourning the trial to allow public attention
to subside, searching and thorough questioning
of prospective jurors to screen out those infected
by pretrial publicity, and emphatic and clear
cautionary instructions. We will address only the
latter in light of our disposition.
….
The court has an affirmative obligation to seek out
and rectify outside influences that have the capacity
to create a prejudicial impact upon a party.
….
The threatened closure of CMC’s emergency room
and impending doctor’s strike had the potential to
significantly impact the community from which
the jurors were drawn. Articles were published that
detailed how the high cost of litigation could have
dramatic consequences on the level and cost of
medical care. The impact of litigation costs upon
health care was of such significance, it found its
way into the President’s State of the Union Address
two days before the trial commenced. Under these
specific facts, the judge had an affirmative obligation
to take the necessary prophylactic measures to
insulate the jury from the outside influences. …
Very simply, the judge should have instructed the
jury to avoid any publicity related to the strike or
controversy.
….
… In this case, the failure to appropriately instruct
the jury had the clear capacity to deprive plaintiff
of a fair trial and warrants reversal irrespective
of whether the jurors were actually exposed to
extraneous influences.627
ARBITRATION
Contractual Limitations Upon
and Compelled Arbitration of
Malpractice Claims
The courts in New Jersey recently have begun to address the
issues raised by recent attempts to impose contractual limits
upon and to compel the submission of malpractice claims to
binding arbitration. In Moore v. Woman to Woman Obstetrics &
Gynecology,628 the parents of a child with Down Syndrome
sued multiple defendants seeking damages for the extraordinary
medical expenses to be incurred raising their child. Some of the
defendants moved to dismiss the case based upon an agreement
signed by the mother to submit such claims to binding arbitration.
The agreement to arbitrate was also stated to be binding upon the
patient’s spouse or children, “born or unborn.”629 The patient also
agreed to waive a trial by jury, and certain remedies.
The trial court entered an order compelling arbitration of certain
of the plaintiffs’ claims and dismissing the complaint without
prejudice as to those defendants. In reversing, the appellate
division first noted that pursuant to the New Jersey Arbitration
Act, N.J.S.A. 2A:23B-1 to -32, the Legislature generally approved
627. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 395-99 (App. Div. 2006).
See also
Mahoney v. Podolnick, 168 N.J. 202 (2001), regarding jury procedures, holding
that fivesixths
of the deliberating jurors must vote in favor of each question, but that a
juror can
vote differently on liability and apportionment questions.
628. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30
(App. Div. 2010).
629. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30, 42
(App.
Div. 2010).
the use of arbitration agreements, and generally “does not prohibit
agreements to arbitrate based upon the nature of the disputed
claim.”630 However, the Moore Court then advised that
courts may decline to enforce when well-established
principles addressing the absence of a consensual
agreement and unfairness in contracting and the
agreement warrant relief. Those principles include
fraud, duress, mistake, illegality, imposition, undue
influence and unconscionability.631
The Moore Court focused on the issue of unconscionability
explaining that:
For the most part, the unconscionability [involves]
two factors: (1) unfairness in the formation of
the contract, [procedural unconscionability] and
(2) excessively disproportionate terms [substantive
unconscionability]. … Factors relevant to
unconscionability include characteristics of the
party presented with a contract of adhesion, ‘such
as age, literacy, lack of sophistication, hidden or
unduly complex contract terms, bargaining tactics,
and the particular setting existing during the
contract formation process.’632
The Court found “no justification for judicial action imposing
an absolute bar to enforcement of agreements to arbitrate such
claims.”633 However, the Court remanded for a hearing to determine
whether the enforcement of the arbitration agreement would be
unconscionable. The Court explained:
There are several factors of procedural and
substantive unconscionability that combine to
preclude entry of an order enforcing the agreement
at this juncture. …
630. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30, 35
(App.
Div. 2010).
631. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30,
37-38 (App.
Div. 2010).
632. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30,
38-39 (App.
Div. 2010).
633. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30, 40
(App.
Div. 2010).
The factors to which we refer are ‘the particular
setting existing during the contract formation
process’ and the waivers that involve others who
are not parties to the agreement. In the context of
a contract of adhesion, which this contract clearly
is, the ‘subject matter’ and the ‘parties’ relative
bargaining positions’ as well as public policies
implicated are pertinent. …
[The patient] sought medical services from
a specialist for a high-risk pregnancy. In that
circumstance, it was reasonable for [the patient] to
assume that the physician was acting in her interest.
She was presented, along with forms related to
medical treatment and privacy rights and payment
for the services, a copy of a contract of adhesion
that is a pre-dispute arbitration agreement. Apart
from the plain, prominent and unambiguous text
of the agreement, she was not alerted to the fact
that a contract waiving her rights and the rights of
her husband and child was among those forms.
The contract of adhesion [the patient] signed
gave her notice of her right to seek the advice of
counsel and a right to withdraw from the agreement
within fifteen days. Nonetheless, [the patient] was
not given a copy of the agreement, which was
essential to the exercise of those contractual rights.
Thus, while these provisions of the agreement
suggest procedural fairness through an effort to
ensure that the agreement is accepted with full
understanding and after thoughtful consideration
over a fifteen-day period, the failure to provide the
patient with a copy of the contract, as a practical
matter, renders them ineffective and gives rise to
an inference of additional inequality in the parties’
respective bargaining positions.634
634. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30,
44-45 (App.
Div. 2010) (citations omitted).
The Court concluded that the agreement to arbitrate the claims
of the patient’s spouse was invalid, stating
we are not aware of any legal theory that would
permit one spouse to bind another to an agreement
waiving the right to trial on his or her claim without
securing his consent to the agreement.635
The Appellate Division therefore reversed and remanded,
concluding that:
[u]nder the totality of the circumstances in this case,
defendants were not entitled to summary judgment
enforcing this agreement over plaintiffs’ claims that
this contract of adhesion was procedurally and
substantively unconscionable.636
The definition of unconscionability was further refined in a case
involving an arbitration agreement signed by a resident of a nursing
home in Estate of Ruszala v. Brookdale Living Communities.637
In Ruszala, the appellate division held that Sec. 2 of the Federal
Arbitration Act (FAA), 9 U.S.C. 2, which declares arbitration
provisions in contracts “valid, irrevocable, and enforceable,”
preempts N.J.S.A. 30:13-8.1, of the New Jersey Nursing Home
Responsibilities and Rights of Residents Act which voids any
“provision or clause waiving or limiting the right to sue … between
a patient and a nursing home.” However, the court also held that
certain provisions of the residency agreements are unenforceable
due to the doctrine of substantive unconscionability.
The plaintiffs decedent in Ruszala had signed “residency
agreements” with two New Jersey assisted living facilities. The
contracts contained arbitration and limitation of liability clauses
which compelled arbitration of negligence claims, significantly
restricted discovery, limited compensatory damages, and prohibited
punitive damages.
The trial court denied the defendants’ motions to compel
arbitration, finding that: (1) the arbitration provisions were void
635. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30, 45
(App.
Div. 2010).
636. Moore v. Woman to Woman Obstetrics & Gynecology, 416 N.J. Super. 30, 46
(App.
Div. 2010).
637. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272 (App.
Div. 2010).
as against public policy under N.J.S.A. 30:13-8.1; (2) the FAA
was not applicable because the contracts did not involve interstate
commerce; and (3) even if N.J.S.A. 30:13-8.1 was preempted by the
FAA, the limitations and prohibitions of the residency agreement
were unenforceable due to unconscionability. The appellate division
reversed, holding that the FAA does preempt the anti-arbitration
provision in N.J.S.A. 30:13-8.1, but affirmed the trial court’s conclusion
that certain portions of the residency agreement were unenforceable
based on the doctrine of substantive unconscionability.
The residency agreements provided in relevant part that all claims
other than for eviction “shall be submitted to binding arbitration,”
that the parties waive the right to a trial by jury, that non-economic
damages, such as pain and suffering, were limited to $350,000.00
and that punitive damages were prohibited.638
The Ruszala panel first dealt with the pre-emption issue. The
panel noted that the Legislature amended N.J.S.A. 30:13-8.1 to
prohibit a nursing home from limiting a resident’s right to sue,
declaring such attempts to be “‘void as against public policy and
wholly unenforceable.’ ”639 However, the court stated that
[t]he FAA thus preempts any state law or regulation
that seeks to preclude the enforceability of an
arbitration provision on grounds other than those
which ‘exist at law or in equity for the revocation
of any contract’ 9 U.S.C.A. Sec. 2.640
The court added:
Our State’s prohibition of arbitration agreements
in nursing home contracts, designed to protect
the elderly, is thus irreconcilable with our national
policy favoring arbitration as a forum for dispute
resolution. Under our federal system of government,
national policy prevails. Therefore, the FAA’s clear
authorization nullifies the specific prohibition of
arbitration provisions in nursing home or assisted
638. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 283-85
(App.
Div. 2010).
639. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 293
(App.
Div. 2010).
640. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 293
(App.
Div. 2010).
living facilities’ contracts contained in N.J.S.A.
30:13-8.1.641
After affirming the trial court’s conclusion that “the residency
agreements are contracts of adhesion,” the appellate division
focused on the issue of unconscionability.
The unconscionability issue in this matter centers
on the limitations of discovery, the capping of
compensatory damages to a seemingly arbitrary
figure, and the outright prohibition of punitive
damages. In determining whether these restrictions
run counter to our State’s public policy, we need
look no further than to the plain language in
N.J.S.A. 30:13-8.1:
Any provision or clause waiving or limiting the
right to sue for negligence or malpractice in
any admission agreement or contract between
a patient and a nursing home or assisted living
facility licensed by the Department of Health
and Senior Services … whether executed prior to,
on or after the effective date of this act, is hereby
declared to be void as against public policy and
wholly unenforceable, and shall not constitute a
defense in any action, suit or proceeding.
Although the FAA preempts the application of
this statute to bar arbitration as a contractually
provided means of dispute resolution, the statute
otherwise continues to protect these consumers’
right to sue.642
The Appellate Division deemed the discovery restrictions
palpably egregious because they are clearly intended
to thwart plaintiffs’ ability to prosecute a case
involving resident abuse. Under these restrictions,
a plaintiff cannot depose any of the nursing
641. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 293
(App.
Div. 2010).
642. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 297-98
(App.
Div. 2010).
home staff members who are directly responsible
for the day-to-day care of the resident. Indeed,
no depositions can be taken of any fact witness,
including individuals without any particular
affiliation to the nursing home who, nevertheless,
may have witnessed an act of abuse or neglect or
may have information material to the case. This
limitation is thus clearly inconsistent with the
protection provided in N.J.S.A. 30:13-8.1.643
Similarly, the court explained that permitting the limits on
compensatory damages would have
the insidious effect of permitting nursing home
operators to budget potential liability as a mere
cost of doing business, leaving seriously injured
residents unable to obtain the full measure of relief
warranted by the evidence. This section of the
arbitration clause is likewise unenforceable under
N.J.S.A. 30:13-8.1.644
Finally, the court explained that the
preclusion of punitive damages touches upon the
societal interest of expressing the community’s
disapproval of outrageous conduct. In the context
of nursing home abuse, punitive damages also
serve an “admonitory” function.645
The appellate panel concluded:
When considered together, the restrictions on
discovery, limits on compensatory damages, and
outright prohibition of punitive damages form
an unconscionable wall of protection for nursing
home operators seeking to escape the full measure
of accountability for tortious conduct that imperils
a discrete group of vulnerable consumers. This is
643. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 298
(App.
Div. 2010).
644. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 298
(App.
Div. 2010).
645. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 298
(App.
Div. 2010).
precisely the evil the Legislature sought to enjoin
by passing N.J.S.A. 30:13-8.1. We thus hold that
these provisions in the arbitration clause of the
residency agreement are void and unenforceable
under the doctrine of substantive unconscionability.
We thus sever the restrictions on discovery and
remand for the parties to present their case to an
arbitrator governed by our civil rules of discovery
as provided for in the arbitration agreement.
We further invalidate the $350,000 limitation
on compensatory damages and the bar against
punitive damages. The arbitrator will determine
the measure of damages based on the evidence
presented, uninhibited by any per se limitations
on compensatory damages; punitive damages may
also be assessed if warranted.646
To what extent this rationale will be applied to medical
malpractice cases that arise outside of a nursing home setting
remains to be seen.
646. Estate of Ruszala v. Brookdale Living Cmtys., 415 N.J. Super. 272, 299-300
(App.
Div. 2010).
Pretrial Discovery in Medical
Malpractice Cases
Overview
The exchange of pretrial discovery requires the good faith
participation of the litigants. Unfortunately, far too much energy
is consumed in the litigation of pretrial motions where the law is
clear and there is no genuine dispute over whether the requested
information is discoverable. This conduct is contrary to the spirit
and letter of the law. In Young v. Latta,1 the New Jersey Supreme
Court instructed:
Our system of discovery is designed to make
available information that is reasonably calculated
to lead to relevant evidence concerning the
respective positions of the parties. … A litigation
strategy that features surprise to the adversary is
no longer tolerated.2
However, another court was compelled to write:
Discovery—the preparatory phase in the lawsuit—
has as its primary objective, the exposure and
unveiling of the relevant facts of that case. It is the
probing for and revelation of the truth, nothing
1. Young v. Latta, 123 N.J. 584 (1991).
2. Young v. Latta, 123 N.J. 584, 597 (1991) (quoting Lang v. Morgan’s Home
Equip. Corp.,
6 N.J. 333, 338 (1951)).
more and nothing less. To treat it as a checker game
is to debase the process.3
A comprehensive discussion of the rules of pretrial discovery is
beyond the scope of this text.4 However, medical malpractice cases
involve recurring pretrial discovery issues which merit discussion.
Priority of Discovery
The timing of discovery, i.e., who goes first, is sometimes a
problem in medical malpractice cases. Occasionally, a party will
insist that another party submit to depositions or provide expert
reports before the first party will do the same. The logical process
of discovery would ordinarily require production of legible copies
of all of the medical records, depositions of all of the parties and
fact witnesses, production of expert reports, and depositions of
the experts, in that order.
Certainly, a party cannot insist on priority of discovery nor
place conditions on the obligation to produce discovery. In Dick v.
Atlantic City Medical Center,5 the defendant refused to appear for
depositions until receipt of plaintiff’s expert report. In requiring
the defendant to appear for the deposition, the court noted that
New Jersey Court Rule 4:10-4 provides that “the fact that a party
is conducting discovery, whether by deposition or otherwise, shall
not, of itself, operate to delay any other party’s discovery.”6 The
court observed that this language was inserted into the rule to
remedy the common law
rule of priority developed by case law … which
allowed the party who first served notice of
taking depositions to complete at least the noticed
depositions before his opponent could take any
depositions.7
3. Dick v. Atl. City Med. Ctr., 173 N.J. Super. 561, 565 (Law Div. 1980); see
also Tynes v.
St. Peter’s Univ. Med. Ctr., 408 N.J. Super. 159 (App. Div. 2009) (discussing
the application
of “Best Practices” and New Jersey Court Rule 4:24 to discovery in medical
malpractice
cases).
4. See Sylvia B. Pressler and Peter G. Verniero, 2012 N.J. Court Rules –
Annotated
(Gann 2012).
5. Dick v. Atl. City Med. Ctr., 173 N.J. Super. 561 (Law Div. 1980).
6. Dick v. Atl. City Med. Ctr., 173 N.J. Super. 561, 563 (Law Div. 1980).
7. Dick v. Atl. City Med. Ctr., 173 N.J. Super. 561, 563 (Law Div. 1980).
In holding that defendant could not refuse to appear for his
deposition pending receipt of plaintiff’s expert reports, the court
stated, in language applicable to many discovery disputes:
A witness either on deposition or on trial has but
one obligation—to speak the truth. If the truth
here exculpates defendant doctor, all well and
good. He will prevail. If the truth turns out to be
that he committed malpractice, so be it. ‘The truth
is always the truth, telling the truth never hurt
anyone except in so far as he ought to be hurt.’ In
re Vince, 2 N.J. 443, 447 (1949). The contrary view
turns an inquiry into truth and justice into a poker
game and this practice died September 15, 1948.8
Obtaining Plaintiff’s Medical
Records, Interviewing Plaintiff’s
Treating Physicians
The physician-patient privilege is found at N.J.S.A. 2A:84A-22.1
et seq., and protects disclosure of “information transmitted
between physician and patient, including information obtained by
an examination of the patient.” However, N.J.S.A. 2A:84A-22.4
provides that there is no privilege “in an action in which the
condition of the patient is an element or factor of the claim or
defense.” Thus, the assertion of a malpractice claim waives the
physician-patient privilege.
Prior to the enactment of this legislation, the New Jersey
Supreme Court recognized the physician-patient privilege, as
well as the exceptions to the privilege, in Hague v. Williams.9 In
Hague, plaintiffs sued a physician for disclosing to their child’s
life insurance company that the plaintiffs’ infant had heart trouble
since birth. This disclosure resulted in the denial of a claim for life
insurance benefits after the death of the baby. Plaintiffs contended
that the pediatrician was under a duty not to reply to the inquiry
8. Dick v. Atl. City Med. Ctr., 173 N.J. Super. 561, 565 (Law Div. 1980).
9. Hague v. Williams, 37 N.J. 328 (1962).
of the insurance company without their express authorization. The
Supreme Court noted that there was no physician-patient privilege
at common law, but nevertheless:
[t]he benefits which inure to the relationship of
physician-patient from the denial to a physician of
any right to promiscuously disclose such information
are self-evident. On the other hand, it is impossible
to conceive of any countervailing benefits which
would arise by according a physician the right to
gossip about a patient’s health.10
The Court therefore concluded:
A patient should be entitled to freely disclose his
symptoms and condition to his doctor in order to
receive proper treatment without fear that those
facts may become public property. Only thus
can the purpose of the relationship be fulfilled.
So here, when the plaintiffs contracted with the
defendant for services to be performed for their
infant child, he was under a general duty not to
disclose frivolously the information received from
them, or from an examination of the patient.
… We conclude, therefore, that ordinarily
a physician receives information relating to a
patient’s health in a confidential capacity and
should not disclose such information without the
patient’s consent, except where the public interest
or the private interest of the patient so demands.11
However, the Court noted that the duty of confidentiality may be
waived when the patient’s medical history is in issue, for example,
in a personal injury or life insurance claim.
One of these exceptions arises where, as here,
the physical condition of the patient is made an
element of a claim. While that claim had not yet
been pressed to litigation, the same policy which
during litigation permits, even demands, disclosure
10. Hague v. Williams, 37 N.J. 328, 335-36 (1962).
11. Hague v. Williams, 37 N.J. 328, 336 (1962).
of information acquired during the course of
the physician-patient relationship allows the
disclosure thereof to the person against whom the
claim is made, when recovery is sought prior to or
without suit. At this point the public interest in an
honest and just result assumes dominance over the
individual’s right of nondisclosure.
When the plaintiffs made a claim involving the
health of the patient, they lost any right to nondisclosure
they may have had and defendant was
justified in conveying the relevant information to
the insurer upon its request.12
Thus, it is clear that a defendant in a malpractice case is entitled
to obtain the medical records of the plaintiff, who is deemed to
have waived any privilege in same by filing suit.
Furthermore, the defendant in a malpractice case is entitled to
attempt to interview the plaintiff’s treating physicians without
taking a formal deposition on the record. In Stempler v. Speidell,13
the Court analyzed the conflict between a physician’s obligation
to keep the confidences of the patient and the defendant’s need
to discover information about a patient’s medical history. In
Stempler, the defendants wanted to compel the plaintiff to sign
authorizations permitting the defense counsel to conduct ex parte
interviews with plaintiff’s treating doctors. The Supreme Court
began its analysis by noting that a doctor has
a professional obligation to maintain the
confidentiality of his patient’s communications.
See American Medical Association, Principles of
Medical Ethics, ¶ 9 (1957).14
After analyzing the competing interests, i.e., the plaintiff’s interest
in protecting confidential information not relevant to the litigation
and preventing the disclosure of harmful information, versus the
defendant’s desire to interview the treating physicians and discover
any beneficial information, the Supreme Court decided:
12. Hague v. Williams, 37 N.J. 328, 336-37 (1962).
13. Stempler v. Speidell, 100 N.J. 368 (1985).
14. Stempler v. Speidell, 100 N.J. 368, 375 (1985).
In our view, these competing interests can be
respected adequately without requiring the formality
of depositions in every case. The Rules regulating
pretrial discovery do not purport to set forth the
only methods by which information pertinent to
the litigation may be obtained. Personal interviews,
although not expressly referred to in our rules, are
an accepted, informal method of assembling facts
and documents in preparation for trial. Their use
should be encouraged as should other informal
means of discovery that reduce the cost and time
of trial preparation.15
The Stempler Court therefore held that plaintiffs must sign
authorizations permitting the defense counsel to interview
plaintiff’s treating physicians. However, the Court also held that
defense counsel must provide plaintiff’s counsel with reasonable
notice of the time and place of the interview. Finally, the Court
instructed:
Additionally, the authorizations or orders should
require that defendant’s counsel provide the
physician with a description of the anticipated
scope of the interview, and communicate with
unmistakable clarity the fact that the physician’s
participation in an ex parte interview is voluntary.
This procedure will afford plaintiff’s counsel the
opportunity to communicate with the physician,
if necessary, in order to express any appropriate
concerns as to the proper scope of the interview,
and the extent to which plaintiff continues to assert
the patient-physician privilege with respect to that
physician.16
The Court specifically held that plaintiff may seek a protective
order: (1) seeking the supervision of the trial court, (2) granting
plaintiff’s counsel the opportunity to be present during the interview
or, (3) requiring that defense counsel proceed by deposition.
15. Stempler v. Speidell, 100 N.J. 368, 382 (1985).
16. Stempler v. Speidell, 100 N.J. 368 (1985).
See also Smith v. American Home Products Corp.,17 where the
plaintiffs filed suit against the defendants seeking damages arising
out of the ingestion of a drug. The defendants sought to interview
the plaintiffs’ physicians as provided by Stempler v. Speidell.18
The plaintiffs asserted that the Health Insurance Portability and
Accountability Act (HIPAA), 42 U.S.C. 300gg-12, prohibited the
defendants from interviewing the plaintiffs’ physicians. The Law
Division held that the HIPAA statute did not conflict with the New
Jersey Physician Patient Privilege found in N.J.S.A. 2A:84A-22.4,
and did not preempt informal discovery in the form of ex parte
interviews.
In In re Diet Drug Litigation,19 where the defendant moved to
conduct ex parte interviews of the plaintiffs’ treating physicians.
The court held that HIPAA,20 did not preempt state case law that
permitted ex parte interviews with the doctors.21 The trial court
recalled that in Stempler v. Speidell,22 the Supreme Court held that
such personal interviews are an “accepted, informal method of
assembling facts and documents in preparation of trial.”23
In Il Grande v. Dibenedetto,24 where the court held that whether
a defendant is entitled to compel a plaintiff to undergo an invasive
procedure requires the motion judge to balance whether the
probative value of the procedure outweighs any risk or discomfort
to plaintiff. The court explained:
the burden of coming forward to establish the
probative value of such procedure rests with
defendant; plaintiff then must produce evidence
that the proposed procedure presents a risk to
plaintiff’s health or is of such a nature that it will
create substantial discomfort or distress; thereafter,
17. Smith v. Am. Home Prods. Corp., 372 N.J. Super. 105 (Law Div. 2003).
18. Stempler v. Speidell, 100 N.J. 368 (1985).
19. In re Diet Drug Litig., 384 N.J. Super. 546 (Law Div. 2005).
20. Pub. L. 104-191, 42 U.S.C. 300gg-12.
21. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005).
22. Stempler v. Speidell, 100 N.J. 368 (1985).
23. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005) (citing
Stempler v.
Speidell, 100 N.J. 368, 382 (1985)).
24. Il Grande v. Dibenedetto, 366 N.J. Super. 597 (App. Div. 2004).
the burden shifts back to defendant to establish the
safety and reasonableness of the procedure.25
The Appellate Division also held:
[A] defendant’s remedy, where defendant has failed
to meet his burden to compel such an examination,
is to challenge plaintiff’s expert on crossexamination.
Where a plaintiff fails to submit to an
invasive procedure that a judge has determined to
be warranted, possible remedies include, but are not
limited to, questioning both parties’ experts as to the
nature of the proposed procedure and commenting
to the jury as to plaintiff’s refusal to submit to the
procedure. Only in the exceptional case may a judge
impose the sanction of barring plaintiff’s claim.26
Use of a Subpoena to Obtain
Medical Records
The penalty for the misuse of subpoena power was discussed in
Crescenzo v. Crane.27 In Crescenzo, the plaintiff was in the process
of divorcing her husband when her husband’s attorney served
a subpoena duces tecum on the plaintiff’s personal physician,
Dr. Crane, requiring production of the plaintiff’s medical records.
The subpoena was accompanied by a letter stating that if the
medical records were sent by mail there would be no need for
Dr. Crane to appear on the return date of the subpoena. Counsel
for the husband did not provide an authorization from the wife
consenting to the release of her medical records. Furthermore, the
25. Il Grande v. Dibenedetto, 366 N.J. Super. 597, 603 (App. Div. 2004).
26. Il Grande v. Dibenedetto, 366 N.J. Super. 597, 604 (App. Div. 2004). See
also the
following statutes:
N.J.S.A. 2A:82-41 Person against whom claim is asserted; right of
examination, which
permits a defendant to examine a plaintiff’s hospital records.
N.J.S.A. 2A:82-42 Injured person or claimant; right of examination, which
permits a
plaintiff or plaintiff’s attorney to examine the plaintiff’s hospital records.
N.J.S.A. 2A:82-43 which makes the provisions of N.J.S.A. 2A:82-41 and
N.J.S.A. 2A:82-42
applicable to attorneys and duly authorized agents subject “to reasonable
rules and
regulations promulgated by any such hospital.”
See also §§ 9-11 and 9-12 regarding depositions of treating physicians,
psychiatrists and
health care professionals.
27. Crescenzo v. Crane, 350 N.J. Super. 531 (App. Div. 2002).
husband’s attorney did not even provide notice of the subpoena to
either the plaintiff or her attorney. In response to the subpoena, the
plaintiff’s physician released her medical records to the husband’s
attorney, who provided the medical records to third parties.
The wife filed suit against her doctor, alleging a breach of the
duty of confidentiality. The trial court dismissed the complaint
against the doctor, concluding that even if the wrong procedures
were utilized the records inevitably would have been discoverable.
When reversing, the Appellate Division first explained that the
purpose of the rule of court which grants subpoena power, New
Jersey Court Rule 4:14-7(c), is to permit discovery from non-parties
while providing notice and the opportunity for parties to challenge
the propriety of the subpoena. The court then observed that New
Jersey Court Rule 4:14-7(c) has five essential requirements:
(1) the subpoena must be served with a deposition notice;
(2) the subpoena must state that the records shall not be
released until the date of the deposition;
(3) the subpoena must notify the deponent that if a motion
to quash the subpoena is filed the deponent shall not
release the records;
(4) the subpoena must be served on all parties; and
(5) if evidence is produced by a deponent who does not
attend the deposition, the party issuing the subpoena
must provide notice and make the evidence available to
all parties.28
The court observed that the husband’s attorney had actually
managed to violate each of these five requirements.
The Appellate Division then explained that the wife had a
viable claim against the doctor for breach of the physicianpatient
privilege, relying on Runyon v. Smith.29 The Crescenzo
panel explicitly rejected the contention that since the records were
ultimately discoverable, this was a case of “no harm, no foul,”
as stated by the trial judge.30 The court therefore reversed and
28. Crescenzo v. Crane, 350 N.J. Super. 531, 538 (App. Div. 2002).
29. Crescenzo v. Crane, 350 N.J. Super. 531, 539-43 (App. Div. 2002) (citing
Runyon v.
Smith, 322 N.J. Super. 236 (App. Div. 1999), aff’d, 163 N.J. 439 (2000)).
30. Crescenzo v. Crane, 350 N.J. Super. 531, 538, 543 (App. Div. 2002).
remanded, adding that it would not address the issue of the scope
of the plaintiff’s damages.
The improper use of a subpoena resulted in disqualification of
defense counsel in Cavallaro v. Jamco Property Management.31
In Cavallaro, the defendant’s attorney served subpoenas on
numerous medical providers with a cover letter stating that if the
medical records were provided prior to the date of the deposition
the appearance of the medical providers at the deposition
would not be required. Although counsel for the plaintiff was
provided with a copy of the subpoena, the defense counsel did
not provide a copy of the cover letter to the plaintiff ’s attorney.
When counsel for the plaintiff contacted one of the plaintiff ’s
medical providers, a psychologist, in connection with a motion
to quash the subpoena, the plaintiff ’s attorney was advised
that the records had already been sent to defense counsel.
The plaintiff moved for a protective order and the trial court
ruled that the plaintiff ’s mental health treatment records were
privileged pursuant to New Jersey Rules of Evidence 505 and
N.J.S.A. 45:14B-28. The court also ruled that counsel for the
defendant had failed to satisfy the requirements of Kinsella v.
Kinsella,32 regarding waiver of the privilege for mental health
records. The trial court also found that the subpoena violated
the Rules of Civil Procedure and the Code of Professional
Responsibility. The trial court therefore ordered the return of
the mental health records and disqualified defense counsel.33 The
Appellate Division affirmed the holding that the mental health
records were privileged pursuant to N.J.S.A. 45:14B-28 and New
Jersey Rules of Evidence 505, and also affirmed the trial court’s
disqualification of defense counsel.
INTERROGATORIES
Form Interrogatories
Interrogatories in medical malpractice suits serve two functions:
to discover information, and to limit and prevent the opponent
31. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557 (App. Div. 2000).
32. Kinsella v. Kinsella, 150 N.J. 276 (1997).
33. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 564-65 (App. Div.
2000).
from utilizing information that is not supplied in discovery. The
so-called “evidence exclusion” function of interrogatories should
not be overlooked or underutilized. The use of interrogatories in
malpractice litigation requires certain comments.
In 1996, the Supreme Court promulgated Form Interrogatories to
be answered by both plaintiff and defendants in medical malpractice
cases. The Form Interrogatories apply only to “defendant physicians,”
and do not apply to other health care providers such as hospitals.34
Certainly the Form Interrogatories were not designed to elicit the
discovery generally needed from hospitals. A party is only permitted
to propound ten single-part supplemental interrogatories.35 However,
the rule contemplates that trial courts will grant motions to serve
additional interrogatories in appropriate cases.36 The defendant must
provide transcribed copies of any handwritten records regarding
plaintiff.37 Furthermore, the defendant must provide his or her
opinion regarding causation.38
The Scope of Inquiry
by Interrogatories
Interrogatories in malpractice cases are often answered by
reference to the medical records. However, reference to the medical
records may be improper since a party cannot read such an answer
into evidence at the time of trial as contemplated by New Jersey
Court Rule 4:17-8(a). Additionally, reference to the medical record
requires the party to interpret the defendant’s answer. This is also
improper in many circumstances. See, for example, Seiden v. Allen,39
in which a court persuasively explained:
The purpose of discovery is not only to elicit
information but to obtain a precise factual
statement from a party which may be used at the
trial as affirmative evidence, or for the purpose of
impeaching or contradicting the party if he appears
34. See N.J. Ct. R. Appendix II, Interrogatory Forms, Form C(3).
35. N.J. Ct. R. 4:17-1(b)(1).
36. N.J. Ct. R. 4:17-1(b)(1).
37. See N.J. Ct. R. Appendix II, Interrogatory Forms, Form C(3), ¶ 7.
38. See N.J. Ct. R. Appendix II, Interrogatory Forms, Form C(3), ¶ 16.
39. Seiden v. Allen, 135 N.J. Super. 253, 256 (Ch. Div. 1975).
as a witness. See R. 4:17-8(a); R. 4:16-1(a) and (b).
The party propounding the interrogatories is
entitled to have answers furnished in a form which
will permit their use at the trial in the manner
envisioned by the rules of court. …
R. 4:17-4(a) requires that answers be furnished
‘separately, fully and responsively.’ Neither the
letter nor the spirit of the rule allows a party to
supply answers which cast upon his adversary the
impossible burden of ferreting out of a deposition
transcript that which the answeror intends as his
answer. If the called-for information is contained
in the transcripts of the deposition, it is the
answeror’s obligation to collect it and supply it in
the form required by the rule.40
The seminal case regarding the scope of the inquiry permitted
by interrogatories in a medical malpractice case is Myers v. St.
Francis Hospital.41 In Myers, plaintiff sought damages for personal
injuries sustained by an infant as a result of a blood transfusion.
The defendant appealed from an order of Law Division directing
the defendant to answer 108 of the 109 interrogatories served upon
him. The court held that the defendant must answer the following
interrogatories:
6 through 8, regarding his profession and license.
9 through 12, regarding his education and internship.
13 through 18, regarding his specialization and training
and experience therein.
19 through 23, regarding his certification by boards.
24 regarding his hospital connections.
25 through 28, regarding teaching in medical institutions.
29 regarding membership in medical societies.
30 and 31, regarding his writings in the field of pediatrics.
40. Seiden v. Allen, 135 N.J. Super. 253, 255-56 (Ch. Div. 1975). See also
Sylvia B. Pressler
and Peter G. Verniero, 2012 N.J. Court Rules – Annotated, cmt to N.J. Ct.
R. 4:17-4(a)
(Gann 2012).
41. Myers v. St. Francis Hosp., 91 N.J. Super. 377 (App. Div. 1966).
32, 33 and 72, regarding the number of occasions
he treated conditions similar to the plaintiff’s, and
the name, address, date and factual account of every
patient for whom he performed a similar procedure in
the preceding two years.
83 regarding the particular condition or conditions for
which the baby was then being treated, and by whom.
92 and 93, regarding whether the infant is still his
patient, and his present treatment of her.42
The requirement that defendant answer interrogatories 32, 33,
and 72 is of special significance in any case where a common
condition or a repeatedly performed procedure is in issue. It
allows the plaintiff to obtain the operative reports, for example,
of similar operations performed on other patients, obviously with
the names redacted, in order to search for variations in technique.
Presumably, should such variations exist, the plaintiff would be
able to explore the reasons for those variations. Obviously, issues
of confidentiality may preclude disclosure of the names and
addresses of the patients.43 However, any privileged material can
be redacted without compromising the value of the discovery.
The Myers court also required the defendant to answer
the following interrogatories, despite his objection that the
interrogatories called for disclosure of his conclusions, opinions
or contentions:
41, regarding defendant’s reasons for preparing the
baby for the procedure;
“59 through 61, inquiring as to what caused the burns;
could they have been avoided, and if so, how”;
“68, whether the scars will be permanent”;
70 and 71, whether the scars are “the result of burns
sustained during the exchange transfusion, and a
normal result of such a transfusion”;
“87, whether the infant suffered pain from the burns”;
42. Myers v. St. Francis Hosp., 91 N.J. Super. 377, 386 (App. Div. 1966).
43. See N.J. R. Evid. 506.
“90, whether plastic surgery is necessary to remove the
scars.”44
The Myers court explained:
There can be no objection if the answers call for
an expression of opinion, for we are dealing within
the area of defendant’s specialty and, in particular,
with his operative procedures and treatment of the
infant.45
Other cases that have considered these issues have reached similar
expansive conclusions. In Osterman v. Ehrenworth,46 plaintiff
alleged that the defendant negligently prescribed prednisone, a
steroid, for treatment of arthritis. Plaintiff served the following
interrogatories which defendant refused to answer based upon the
attorney-client privilege:
‘14. Has defendant ever previously utilized
prednisone in the treatment of arthritis or any
other illness, disease or symptom? If yes, state
(a) the names and addresses of all those so treated,
(b) the illness, symptom or disease for which they
were treated, (c) defendant’s reasons for utilizing
prednisone in such treatment, (d) the length of time
for which prednisone was prescribed, (e) whether
such persons are still under defendant’s care.
15. If the answer to question 14(e) is no with regard
to any person, state the name and address of each
such person or persons, together with the date and
reason that treatment was discontinued.
16. If the answer to question 14(e) is yes with regard
to any person but prednisone is no longer used
in the treatment of such person or persons, state
the name and address of each of such patients,
together with the date and reasons that the use of
prednisone was discontinued.
44. Myers v. St. Francis Hosp., 91 N.J. Super. 377, 389 (App. Div. 1966).
45. Myers v. St. Francis Hosp., 91 N.J. Super. 377, 389 (App. Div. 1966).
46. Osterman v. Ehrenworth, 106 N.J. Super. 515 (Law Div. 1969).
19. If question 17 (inquiring as to whether it was
defendant’s practice to treat all patients exhibiting the
same symptoms as the plaintiff with prednisone) is
answered in the negative, state the names and addresses
of at least three patients exhibiting symptoms similar
to plaintiff Annie Osterman’s, for whom defendant
did not prescribe prednisone, and state why said drug
was not used. (Parentheses added).
20. Has defendant ever prescribed prednisone for
any person other than plaintiff Annie Osterman,
where such prescriptions were renewed continuously
for three years or longer?
21. If question 20 is answered in the affirmative,
state (a) the names and addresses of all those so
treated, and (b) the length of such treatment.
22. If the answer to question 20 is no, state (a)
the longest length of time for which defendant
continuously prescribed prednisone, (b) the name
and address of each such patient or patients, and
(c) the length of such treatment.
50. Has defendant ever prescribed prednisone for
any patient other than plaintiff Annie Osterman,
to be taken more than 7 tablets per day? If so, state
the names and addresses of each such patient and
length of time such treatment was continued.
51. Had defendant knowledge, during the course
of his treatment or thereafter, of any other
physician who has prescribed prednisone in
dosages exceeding 7 tablets per day? If so, state
the names and addresses of each such physician,
the dosage defendant understood them to
prescribe, and the length of time such treatment
was continued.’47
The court upheld the use of interrogatories that inquired as to
how many times the defendant had treated similar conditions and
47. Osterman v. Ehrenworth, 106 N.J. Super. 515, 516-17 (Law Div. 1969).
the names of the patients upon whom the defendant had performed
similar procedures.48
Applying the foregoing conclusions of law to the
interrogatories here involved, it is obvious that
those numbered 20 and 51 would not violate any
patient-physician privilege and must be answered.
However, to require the physician to reveal the
names and addresses of other patients conjoined
with the nature of their illnesses and treatment
provided for each would amount to a judicial
disregard of the legislatively expressed public
policy; it would disclose that which the legislature
has specifically acted to protect.49
Therefore, the court concluded:
If the sub-sections of interrogatories numbered
14, 15, 16, 19, 21, 22 and 50, calling for the names
and addresses of past and present patients of the
defendant, are deleted, ‘no violence is done to
the privilege. …’ Any violation of the privilege is
thus obviated and the plaintiff would obtain the
remaining information requested for such use as
may be indicated in the cross-examination of the
defendant on his ‘qualifications and experience.’50
Similarly, in Unick v. Kessler Memorial Hospital,51 plaintiffs
alleged that their infant daughter died as a result of the negligent
administration of anesthesia. Plaintiff served two interrogatories
which the defendant refused to answer:
74. Have you ever been a party to any lawsuit other
than the present one?
ANSWER: Refused to answer without order of
court.
48. Osterman v. Ehrenworth, 106 N.J. Super. 515, 519 (Law Div. 1969) (citing
Myers v.
St. Francis Hosp., 91 N.J. Super. 377, 389 (App. Div. 1966)).
49. Osterman v. Ehrenworth, 106 N.J. Super. 515, 525 (Law Div. 1969).
50. Osterman v. Ehrenworth, 106 N.J. Super. 515, 526 (Law Div. 1969).
51. Unick v. Kessler Mem’l Hosp., 107 N.J. Super. 121 (Law Div. 1969).
75. If the answer to the preceding Interrogatory is
in the affirmative, state: (a) the name of the parties
to such suit, (b) your status therein, (c) the court in
which it was filed.
ANSWER: [left blank].52
The court held that disclosing the names of persons who have
previously brought malpractice suits against the defendant would
not violate the patient-physician privilege and therefore the names
were discoverable.
Discovery of Communications
Between Plaintiff, Counsel
and Experts
In Hannan v. St. Joseph’s Hospital & Medical Center,53 the
Appellate Division held that notes prepared by the plaintiff at
the instruction of his attorney are privileged, and the privilege
is not waived by referring to the notes in preparing answers to
interrogatories. The trial court had compelled disclosure of the
notes, relying on Coyle v. Estate of Simon,54 having concluded
that once the notes were utilized to answer interrogatories or
to refresh one’s recollection in a deposition, the attorney-client
privilege is waived. The Appellate Division reversed, stating that
the notes were communications between attorney and client and
are protected pursuant to the attorney-client privilege found at
N.J.S.A. 2A:84A-20 (New Jersey Rules of Evidence 504). The
court also held that the notes were protected by the work product
privilege found in New Jersey Court Rule 4:10-2(c). The Appellate
Division also held that there was no waiver of either the attorneyclient
privilege or the work product privilege. The Hannan court
distinguished Coyle, explaining,
Unlike in Coyle, plaintiff here did not disclose
the notes to an expert for the purpose of having
an expert rely on the notes in rendering an
opinion. The notes were disclosed to no one except
52. Unick v. Kessler Mem’l Hosp., 107 N.J. Super. 121, 122 (Law Div. 1969).
53. Hannan v. St. Joseph’s Hosp. & Med. Ctr., 318 N.J. Super. 22 (App. Div.
1999).
54. Coyle v. Estate of Simon, 247 N.J. Super. 277 (App. Div. 1991).
plaintiff’s attorney, and were utilized solely to
answer interrogatories.55
Finally, the court rejected the defendant’s argument that there
was a substantial need for the notes, noting that the hospital record
was at least the equivalent. The court therefore reversed the order
granting the defendant access to the plaintiff’s notes.
See also, generally, New Jersey Court Rule 4:10-2(d) (trial
preparation and experts) and New Jersey Court Rule 4:17-4(e)
(names and reports of experts or treating physicians), regarding
work product privileges between counsel and experts.
Note also that New Jersey Court Rule 4:10-2(e) addressing
privilege claims and protection of trial preparation materials,
states:
When a party withholds information otherwise
discoverable under these rules by claiming that
it is privileged or subject to protection as trial
preparation material, the party shall make the
claim expressly and shall describe the nature of
the documents, communications, or things not
produced or disclosed in a manner that, without
reviewing information that is self-privileged or
protected, will enable other parties to assess the
applicability of the privilege or protection.
Penalty for Failure to Answer
Interrogatories
The penalty for the failure to provide responsive answers to
interrogatories was demonstrated in Nowacki v. Community Medical
Center,56 where plaintiff alleged that she fell while attempting to
lift herself onto a treatment table and fractured her humerus and
femur. The defendants stated in answers to interrogatories that
they may call any person identified in the medical records. The
defendants attempted to call certain physicians who had treated
plaintiff in the hospital as witnesses at trial. The trial court barred
the testimony of these witnesses, holding that the interrogatory
55. Hannan v. St. Joseph’s Hosp. & Med. Ctr., 318 N.J. Super. 22, 30 (App.
Div. 1999).
56. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995).
responses, merely listing “all persons named in the medical
records” as potential witnesses, was not specific enough to satisfy
the defendant’s duty to identify potential witnesses. The trial
court supported this decision by noting that the defendant had
not listed these physicians as potential witnesses for purposes of
informing the jury. The Appellate Division decided that it need not
decide whether the trial court abused its discretion in prohibiting
the testimony of the witnesses since it concluded that any exercise
in discretion was not “clearly capable in producing an unjust
result.”57 However, the lesson to be learned is that anything less
than complete disclosure in good faith subjects the party to the
sanction of the exclusion of evidence.
Production of Expert Reports
The Uniform Interrogatories require the production of expert
reports,58 and the Rules of Court provide for entry of an order
requiring production of expert reports by a “day certain.”59
There is a substantial amount of case law resulting in evolving
rules regarding the late service of expert reports. The issue is also
impacted by revisions to the court rules generally known as “best
practices.”
Generally, the courts will not deny parties their day in court
because of the untimely service of expert reports. In Westphal v.
Guarino,60 the trial court excluded two of plaintiff’s three experts
because their reports had not been supplied within 20 days of the
first trial date, as required by New Jersey Court Rule 4:17-7. The
Appellate Division first noted that it is within the sound discretion
of a trial judge to exclude an expert witness:
The factors which would ‘strongly urge’ the trial
judge, in the exercise of his discretion, to suspend
the imposition of sanctions, are (1) the absence of
a design to mislead, (2) absence of the element of
surprise if the evidence is admitted, and (3) absence
57. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995).
58. See N.J. Ct. R., Appendix II, Interrogatory Forms, Form C(10).
59. N.J. Ct. R. 4:17-4(e).
60. Westphal v. Guarino, 163 N.J. Super. 139 (App. Div. 1978), aff’d, 78 N.J.
308 (1978).
of prejudice which would result from the admission
of the evidence.61
In reversing the trial court for abusing its discretion, the
appellate court took note of the fact that “the discovery process
continued long after the passing of the first trial date.”62 The
Appellate Division concluded that the fact that the defendants
were prepared enough to move to suppress the experts’ testimony
indicated that they were not surprised, and the fact that they had
retained an expert witness to counter the newly named experts
demonstrated that they were not prejudiced. The court therefore
concluded:
[T]he trial judge abused his discretion in disallowing
the testimony of the witnesses without taking
into account the aforementioned factors which,
if considered, might have lead him to suspend
the imposition of the sanction. This error, we are
convinced, was of such nature as to have been
clearly capable of producing an unjust result.63
A contrary position is found in Dunn v. Praiss,64 where the
Appellate Division upheld the refusal of the trial court to allow
defense counsel to name an expert oncologist shortly before trial.
The Appellate Division noted that defense counsel did not produce
the report of this new proposed expert oncologist and that based
upon the evidence it appeared that the defendant’s new theory
“had no reasonable basis in fact.”65
Similarly, in Gittleman v. Central Jersey Bank and Trust Company,66
plaintiffs amended answers to interrogatories six days before trial
to name a new expert witness. The trial court refused to allow the
newly named expert to testify. The court denied plaintiff’s motion
61. Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div. 1978) (citing
Brown v.
Mortimer, 100 N.J. Super. 395, 401 (App. Div. 1968)), aff’d, 78 N.J. 308
(1978).
62. Westphal v. Guarino, 163 N.J. Super. 139, 147 (App. Div. 1978), aff’d, 78
N.J. 308
(1978).
63. Westphal v. Guarino, 163 N.J. Super. 139, 148 (App. Div. 1978), aff’d, 78
N.J. 308
(1978).
64. Dunn v. Praiss, 256 N.J. Super. 180 (App. Div. 1992), rev’d on other
grounds, 139 N.J.
564 (1995).
65. Dunn v. Praiss, 256 N.J. Super. 180, 193 (App. Div. 1992), rev’d on other
grounds, 139
N.J. 564 (1995).
66. Gittleman v. Central Jersey Bank & Trust Co., 103 N.J. Super. 175 (App.
Div. 1968).
for a mistrial and granted defendant’s motion for an involuntary
dismissal at the end of plaintiff’s proofs. In upholding the judgment
of the trial court, the Appellate Division found that there was no
abuse in discretion in preventing the newly named expert from
testifying or in denying the motion for a new trial. The court held that
the defendant was not obligated to notify counsel for plaintiff that
he objected to the late amendment to the answers to interrogatories,
but rather was entitled to rely on the Rules of Court.
The Supreme Court discussed the application of what is
commonly known as “best practices” to medical malpractice cases
in Bender v. Adelson.67 In affirming the trial court’s refusal to allow
defendants to serve late expert reports, the Supreme Court applied
an abuse of discretion standard and required that the late discovery
be allowed only upon a showing of “due diligence,” pursuant to
New Jersey Court Rule 4:17-7, or “exceptional circumstances,”
pursuant to New Jersey Court Rule 4:24-1(c). The Court further
held that
a precise explanation that details the cause of
the delay and what actions were taken during
the elapsed time is a necessary part of proving
due diligence as required by Rule 4:14-7 for
untimely amendments to interrogatory answers
and exceptional circumstances as required by Rule
4:24-1(c).68
The Court emphasized that “best practices” has a two-prong
approach, with some liberality before the trial date is set, but
hardening significantly after a trial date is set.
The Court also explicitly precluded the adverse party from
commenting to the jury about the other side’s inability to obtain
an expert if that expert was procedurally barred on a timeliness of
discovery basis. In affirming an order granting a new trial based
partially on plaintiff’s counsel’s comments during summation in
which he questioned why defendant did produce expert testimony,
the Supreme Court held the summation was misleading and
67. Bender v. Adelson, 187 N.J. 411 (2006).
68. Bender v. Adelson, 187 N.J. 411 (2006).
improper because plaintiff had successfully moved to preclude
such testimony.69
See also Tucci v. Tropicana Casino,70 regarding “best practices,”
holding that the “best practices” rules were
‘designed to improve the efficiency and expedition
of the civil litigation process and to restore statewide
uniformity in implementing and enforcing
discovery and trial practices.’ … They were not
designed to do away with substantial justice on the
merits or to preclude rule relaxation when necessary
to ‘secure a just determination.’ R. 1:1-2. While we
agree that the best practices rules were intended to
counteract an unfortunate and increasingly dilatory,
casual and desultory approach by some members
of the bar to their litigation responsibilities, the
fulfillment of that function does not mandate
dismissal of this action with prejudice.71
See also generally New Jersey Court Rule 4:10-2(d) and New
Jersey Court Rule 4:17-4(e) regarding trial preparation and experts’
and treating physicians’ names and reports.
A discussion of the requirements of the expert report can be
found in Chapter 7, §§ 7-2 and 7-2:2 of this text. However, one
should be aware of the comments of the Appellate Division in
Congiusti v. Ingersoll-Rand Co.,72 where the court held:
Plaintiffs raise three points on this appeal. They
first contend that the testimony of defendant’s
experts went far beyond the experts’ reports
supplied to plaintiffs prior to trial. Thus, they
conclude, the trial court erred in ‘permitting
defendant’s experts to testify and to offer opinions
never disclosed during discovery.’ This claim is
only partially accurate because the broad subject
69. Bender v. Adelson, 187 N.J. 411, 416 (2006).
70. Tucci v. Tropicana Casino, 364 N.J. Super. 48 (App. Div. 2003).
71. Tucci v. Tropicana Casino, 364 N.J. Super. 48, 52 (App. Div. 2003); see also
Zadigan v.
Cole, 369 N.J. Super. 123, 134 (Law Div. 2004) (discussing “best practices,”
and refusing to
permit a party to serve an expert report out of time, relying upon Tucci); see
also Ponden v.
Ponden, 374 N.J. Super. 1 (App. Div. 2004) (regarding “best practices”).
72. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126 (App. Div. 1997).
areas were covered. While the experts had not fully
disclosed their theories in their reports, had they
been deposed by plaintiffs, their depositions might
have fully revealed the bases for their eventual
testimony. …
While a trial judge may in his or her discretion
preclude expert testimony on a subject not covered
in the written reports furnished by an adversary,
in Ratner v. General Motors Corp., 241 N.J.
Super. 197, 202, 574 A.2d 541 (App.Div.1990), we
strongly urged the trial judge in the exercise of
his discretion to ‘suspend the imposition of [the]
sanction [of exclusion]’ when certain factors were
present. These were ‘(1) the absence of a design
to mislead, (2) absence of the element of surprise
if the evidence is admitted, and (3) absence of
prejudice which would result from the admission
of the evidence.’ …
In this case, we have read the testimony of
defendant’s experts, and we have examined their
reports. It does not appear that plaintiff’s attorneys
should have been surprised, except as they had
failed to depose the experts, and thus were unaware
of the details of the experts’ opinions.
.…
The deviation from these reports at trial was
sufficiently minimal that we see a lack of prejudice
to plaintiffs, especially as plaintiffs chose not to
depose the witnesses to flesh out any questions
they may have had concerning the bases for or the
scope of the opinions expressed in the reports. We
see no design to mislead, no significant surprise to
plaintiffs, and therefore no prejudice as a result of
this testimony. The testimony is logically related to
the information contained in the reports.73
73. Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-33 (App. Div.
1997).
Obviously, however, where an expert becomes unavailable,
the court should provide a reasonable amount of time for the
party to replace the expert. In Nadel v. Bergamo,74 plaintiff’s
expert died in January 1977, and the defendant immediately
moved to compel production of new expert reports. The court
entered an Order compelling plaintiff to supply any additional
expert reports by February 15, 1977, and when that date passed,
defendant immediately moved and obtained summary judgment.
The Appellate Division reversed, holding that it was an abuse of
discretion to provide the plaintiff with only 18 days to replace the
deceased expert. The court noted: “In our view, the trial judge
should not grant the summary judgment ‘simply’ because Orders
have to mean something, or they mean nothing.”75
USE OF ADVERSARY’S EXPERT
Use of an Adversary ’s Expert
Generally Prohibited
An attorney is generally prohibited from contacting an expert
first consulted by another party to the litigation. In Graham v.
Gielchinsky,76 plaintiff’s first attorney consulted an expert,
Dr. Primich, who concluded that the defendant was not negligent.
The plaintiff’s second attorney consulted a second expert who
concluded that the defendant was negligent. However, as the
Court noted, “in some undisclosed manner, the defense obtained
Dr. Primich’s report.”77 Approximately one week before trial,
defense counsel advised plaintiff that he intended to call Dr. Primich
as an expert, and the trial court permitted Dr. Primich to testify
as an expert for the defendant.78 The Supreme Court confronted
the issue of whether a party can use an expert first consulted by
another party. The Court initially observed that due to the “work
product rule” and attorney-client privilege, a party was not entitled
to consult with or discover the facts known or opinions held by an
74. Nadel v. Bergamo, 160 N.J. Super. 213 (App. Div. 1978).
75. Nadel v. Bergamo, 160 N.J. Super. 213 (App. Div. 1978).
76. Graham v. Gielchinsky, 126 N.J. 361 (1991).
77. Graham v. Gielchinsky, 126 N.J. 361, 364 (1991).
78. Graham v. Gielchinsky, 126 N.J. 361, 364 (1991).
expert initially consulted by one’s adversary.79 The Court traced
the evolution of the rules of court which initially did not permit
the discovery of the opinions of an adversary’s expert, but were
amended to allow discovery of the opinions of experts “who are
intended to be called as witnesses at trial.”80 The Court noted that
the Rules of Court still do not even allow discovery of the identity
of experts who are not anticipated to testify at trial, except in cases
of “exceptional circumstances,” citing New Jersey Court Rule 4:102(d)(3). The Court recognized the conflict between the search for
truth and what it called the “unavoidable element of unfairness”
resulting from permitting an adversary to call an expert first
retained by another party. Furthermore, the Court explained:
An air of unreality pervaded the trial. Obviously, the
witness had a underlying motivation for testifying.
Was there a continuing relationship with either the
defendant or some member of the defense team?
That factor would remain unexplored if a lawyer
could not effectively cross-examine the expert
without, at the same time, disclosing the client’s
initial relationship. One may say that it hinders the
search for truth not to permit such a witness to
testify. One may say, with equal persuasiveness, that
it hinders the search for truth to limit the effective
cross-examination of such a witness. It is not a
matter of letting lawyers shop for a hired gun. It is
simply a matter of placing the lawyer who sought
the opinion of such an expert in an impossible
situation. Countless claims of malpractice would
be leveled against attorneys who put unfavorable
expert evidence in as part of their clients’ case-inchief.
Certainly there are experts who are wrong,
and no unfair advantage should be taken of a
lawyer’s attempt to evaluate a client’s case.81
79. Graham v. Gielchinsky, 126 N.J. 361, 365-66 (1991).
80. Graham v. Gielchinsky, 126 N.J. 361, 367 (1991).
81. Graham v. Gielchinsky, 126 N.J. 361, 372-73 (1991).
The Court therefore concluded:
[T]ruth has a better chance to emerge if the use of
an adversary’s expert is the exception, not the rule.
Hence, we hold that in the absence of exceptional
circumstances, as defined under R. 4:10-2(d)(3),
Courts should not allow the opinion testimony of
an expert originally consulted by an adversary.82
However, in Fitzgerald v. Stanley Roberts, Inc.,83 a Law against
Discrimination (LAD) case, the Supreme Court held that an expert
named by one party can be called as a witness by other parties to
the litigation if the expert is willing to so testify.
Indeed, no party to litigation has ‘anything resembling
a proprietary right’ to any witness’ evidence. …
Absent a privilege no party is entitled to restrict an
opponent’s access to a witness, however partial or
important to him, by insisting upon some notion
of allegiance. … Even an expert whose knowledge
has been purchased cannot be silenced by the party
who is paying him on that ground alone. Unless
impeded by privilege an adversary may inquire, in
advance of trial, by any lawful manner to learn what
any witness knows if other appropriate conditions
the witness alone may impose are satisfied, e.g.,
compensation for his time and expertise or payment
of reasonable expenses involved. . . .
By declaring that an expert witness will be produced
at trial and providing the expert’s identity and opinion
to another party, as required by Rule 4:10-2(d)(1),
the original proponent has waived his claim that the
information is privileged. Thus, we hold that access to
the testifying witness is allowed and the adversary may
produce a willing expert at trial. To the extent that Deffer
v. Shop-Rite Supermkts, 332 N.J. Super. 540 (App. Div.
2000), suggests otherwise, it is disapproved.84
82. Graham v. Gielchinsky, 126 N.J. 361, 373 (1991).
83. Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (2006).
84. Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 301-02 (2006).
The Court acknowledged but did not discuss the conflict with
New Jersey Court Rule 4:10-2(d)(1), which states:
All other communications between counsel and
the expert constituting the collaborative process in
preparation of the report, including all preliminary
or draft reports produced during this process, shall
be deemed trial preparation materials discoverable
only as provided in paragraph (c) of this rule.
Nevertheless, the long-established law that an expert cannot be
compelled to testify has not been changed.85 A rare case where use
of the adversary’s expert was permitted is Moore v. Kantha.86 In
Moore, the plaintiff was examined by the defendant, who diagnosed
post-herpetic neuralgia. The defendant gave plaintiff a prescription
for a solution of acetylsalicylic acid (ASA). Plaintiff applied the
solution and sustained a third-degree burn. The defendant took a
pretrial de bene esse deposition of the defendant’s expert, Dr. King.
After the deposition, the defendant withdrew this expert as a witness.
However, plaintiff moved to utilize portions of the withdrawn
expert’s deposition, and the trial court granted that motion. The
defendant argued it was error to allow plaintiff to read portions of
the defendant’s expert’s videotaped deposition into evidence. The
Appellate Division concluded that this case presented an exception
to Graham, and thus it was proper to use the defendant’s expert’s de
bene esse deposition.87 The Appellate Division based its holding on
the fact that the expert was the only doctor who had ever studied or
written about this treatment. The Appellate Division explained:
It is undisputed that King was the leading proponent
of the use of ASA or aspirin in chloroform to treat
postherapeutic neuralgia. It is also undisputed
that King’s 1988 clinical note was the only medical
reference in existence regarding the treatment. …
….
… this case presents the unusual circumstance
where defendant’s expert was not only the leading
85. See, e.g., Stanton v. Rushmore, 112 N.J.L. 115 (E. & A. 1934); see also James
v. City of
E. Orange, 246 N.J. Super. 554 (App. Div. 1991).
86. Moore v. Kantha, 312 N.J. Super. 365 (App. Div. 1998).
87. Moore v. Kantha, 312 N.J. Super. 365, 367 (App. Div. 1998).
proponent of a rare treatment, but also the only
physician to study the effects, and other than
defendant, the only physician according to this
record to have actually used the treatment. …
Thus, King was not one of the ‘cottage industry’
experts referred to in Graham, supra.88
The court concluded that these facts distinguished Graham, and
Genovese v. New Jersey Transit Rail Operations, Inc.,89 holding that
the use of an adversary’s expert or the deposition of an adversary’s
expert should not be permitted over that party’s objection.90 The
Moore court approved of the procedure whereby the transcript of
the expert’s testimony was read to the jury without being told who
had originally retained the expert or which attorney had asked any
particular question during the deposition.
See also Rocco v. N.J. Transit Rail Operations, Inc.,91 where the
court held that an expert may not be compelled to provide expert
testimony but may be compelled to provide fact testimony.92
The court also held that a trial court should not permit one party
to use another party’s videotaped deposition of an expert witness,
citing Genovese. The court also noted that a party should not
be allowed to use the opinion testimony of an expert originally
retained by an adversary, citing Graham.
In Corcoran v. Sears Roebuck & Co.,93 the court held that a party
was not entitled either to read the report of an expert retained by an
adversary but not called as a witness at trial, or utilize that report in
cross-examination of the expert that the adversary did call at trial.94
88. Moore v. Kantha, 312 N.J. Super. 365, 377 (App. Div. 1998).
89. Genovese v. N.J. Transit Rail Operations, Inc., 234 N.J. Super. 375 (App.
Div. 1989).
90. See also § 9-12 regarding depositions of experts.
91. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320 (App. Div.
2000).
92. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 342-43
(App. Div. 2000)
(citing Stanton v. Rushmore, 112 N.J.L. 115 (E. & A. 1934) and Braverman v.
Braverman, 21
N.J. Super. 367 (Ch. Div. 1952)).
93. Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117 (App. Div. 1998).
94. Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117 (App. Div. 1998)
(citing
Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985) and Mehalik v.
Schwartz,
223 N.J. Super. 259, 262 (Law Div. 1987)); see also Sallo v. Sabatino, 146 N.J.
Super. 416
(App. Div. 1976) (holding that an expert report attached to answers to
interrogatories is an
adoptive admission).
See also In re Pelvic Mesh/Gynecare Litigation,95 in which the
court permitted the use of treating physicians in a class action.96
DEPOSITIONS
Depositions of Parties
Raising Objections During Depositions
Depositions are often the most valuable method of obtaining
discovery in medical malpractice cases. The Rules of Court
regarding depositions were amended, effective September 1,
1996, in order to stop certain “deposition abuses resulting in an
unnecessarily protracted deposition process and harassment of
witnesses.”97 Several provisions of New Jersey Court Rule 4:14-3
are very significant. New Jersey Court Rule 4:14-3(c) states that:
No objection shall be made during the taking of
a deposition except those addressed to the form
of a question or to assert a privilege, a right
to confidentiality or a limitation pursuant to a
previously entered court order.98
Furthermore,
[a]n objection to the form of a question shall
include a statement by the objector as to why the
form is objectionable so as to allow the interrogator
to amend the question.99
Significantly, testimonial and prompting objections are prohibited.
“No objection shall be expressed in language that suggests an
answer to the deponent.”100 Furthermore, an attorney may not
interrupt the deposition for a consultation with the witness.
95. In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167 (App. Div. 2012).
96. See also Carchidi v. Iavicoli, 412 N.J. Super. 374 (App. Div. 2010).
97. Sylvia B. Pressler and Peter G. Verniero, 2012 N.J. Court Rules—
Annotated, cmt. to
N. J. Ct. R. 4:14-3(c) at 1518 (Gann 2012).
98. Sylvia B. Pressler and Peter G. Verniero, 2012 N.J. Court Rules—
Annotated at 1513
(Gann 2012).
99. N.J. Ct. R. 4:14-3(c).
100. N.J. Ct. R. 4:14-3(c).
Once the deponent has been sworn, there shall be no
communication between the deponent and counsel
during the course of the deposition while testimony
is being taken except with regard to the assertion
of a claim of privilege, a right to confidentiality or
a limitation pursuant to a previously entered court
order.101
Finally, New Jersey Court Rule 4:14-3 makes clear that an
attorney may no longer direct a witness not to answer a question
except in strictly defined circumstances. The rule provides in
relevant part:
Subject to R. 4:14-4, an attorney shall not instruct a
witness not to answer a question unless the basis of
the objection is privilege, a right to confidentiality
or a limitation pursuant to a previously entered
court order.102
Scope of Deposition Questions
There is not much dispute over what information can be elicited
from a plaintiff during depositions, and thus not much discussion
of this issue in the malpractice case law. However, several cases
discuss the proper scope of the deposition of a defendant in a
medical malpractice case. The early cases strictly limited the scope
of discovery available from a defendant physician. In Hull v.
Plume,103 the Court limited the interrogation of the defendant
to issues of “pure fact, i.e., what the physician actually saw and
did.”104
As will be seen, Hull is no longer the law. A review of the
cases analyzing the scope of discovery presently available from a
physician during a deposition begins with Rogotzki v. Schept,105
decided in the same year, but by a different appellate panel than
Myers, the seminal case regarding the scope of interrogatories
in medical malpractice cases. In Rogotzki, the plaintiffs alleged
101. N.J. Ct. R. 4:14-3(f).
102. N.J. Ct. R. 4:14-3(c).
103. Hull v. Plume, 131 N.J.L. 511 (E. & A. 1944).
104. Hull v. Plume, 131 N.J.L. 511, 516 (E. & A. 1944).
105. Rogotzki v. Schept, 91 N.J. Super. 135 (App. Div. 1966).
that the physicians were negligent in the treatment of their
child’s appendicitis. The defendants refused to answer a number
of deposition questions, objecting that the questions required
the defendants to render expert opinions. The court disagreed,
holding that there should be a “full explanation” of defendants’
findings, diagnoses, actions and “opinions as to the proper course
of treatment” for plaintiff’s child.106 The court therefore ordered
one defendant to answer all questions regarding the facts he took
into consideration, his observations, the objectives of treatment,
and the opinions or conclusions formed at the time of treatment.
These questions included:
2. ‘Q. There were no other physicians in
attendance, were there? . . .
Q. They would have been the only ones that
could properly remove a specimen. Isn’t
that correct?’
.…
6. ‘Q. Did you observe any pus coming out of
the pelvis prior to the operation?’
….
8. ‘Q. Well, what additional facts were taken into
account in reaching that conclusion [the
existence of a fistula of the small bowels]?’
14/15. ‘Q. What was the purpose of these X-rays
(taken before the second operation)?’
.…
18. ‘Q. What were your surgical objectives in
removing four inches of the ileum?’
.…
31. ‘Q. Do you recall during the appendectomy
operation *** on May 25, 1953, if there was
any surgical incident that might possibly or
probably, rather, be medically related to the
106. Rogotzki v. Schept, 91 N.J. Super. 135, 154 (App. Div. 1966).
peritonitis and the intestinal obstruction
that you subsequently diagnosed?’
32 & 33. ‘ Q. During the appendectomy operation of May
25, 1953, did you observe any inadvertent
cutting [or tearing, No. 33] of tissue?’
34. ‘Q. During the appendectomy operation of May
25, 1953, did you observe any hemorrhaging
from poorly tied blood vessels?’
35. ‘Q. During the treatment *** in the North
Hudson Hospital, to your knowledge,
was there any diagnostic error by you or
by any other person?’
36. ‘Q. Did you agree with the diagnosis arrived at
by Dr. Schept after the appendectomy?’107
In so holding, the court laid bare all of the opinions or
conclusions formed by the defendants at the time of treatment.
The court reasoned:
Only questions 2, 7, 8, 14 and 15, 18, 34 and 35 are
even debatable, but it should be remembered that
discovery is to be liberally applied. It is only proper
that defendants be required to come forward with
a full explanation of their actions. No. 2 asks for
a conclusion, but it is a conclusion that on its face
appears to be one that any qualified doctor can
answer. It relates to his knowledge of what was
actually happening or not happening. … No. 8 asks
how a diagnosis was arrived at. However, it does
not ask for any mental process; rather, it asks for
the facts used in arriving at the diagnosis. It thus
calls for no more than a recital of observed facts,
and is proper. Nos. 14 and 15 ask why something
was done, and were proper under Russo v.
Merck & Co., 21 F. R. D. 237 (D.R.I. 1957) and
the other cited cases. No. 18 is similar. Essentially,
these three questions seek out the facts. No. 34
107. Rogotzki v. Schept, 91 N.J. Super. 135, 154-55 (App. Div. 1966).
would appear to call for a conclusion, but it is one
which a qualified surgeon could make by mere
observation. Of course, it takes an expert to know
if blood vessels are ‘poorly tied,’ but the expert
(here a defendant) cannot hide behind his expert
knowledge when he actually observes something.
No. 35 is similar.108
The court ordered the second defendant to answer all questions
regarding his observations, the reasons for his actions and his
knowledge of medicine. These questions included:
1. ‘Q. Well, *** aren’t some of these findings which you
have testified to also diagnostically significant
of other diseases other than appendicitis?’
.…
9. ‘Q. Would any of those three findings alone have
justified your conclusion of the existence of an
infection or all three, if necessary?’
.…
13. ‘Q. *** Would you explain what you mean by
negative [urine test]?’
14. ‘Q. By negative do you mean that there was no
indication of an infection in the urinalysis?’
15. ‘Q. And what did that mean to you, the rise in
white blood count [a result of blood test]?’
.…
31. ‘Q. An indicated finding, Dr. Schept, of acute ileus
is not the same as a diagnosis of peritonitis and
intestinal obstruction, is it?’
32 & 33. ‘Q. What is an acute ileus?’
35. ‘Q. What were some of those other diseases
that had overlapping symptoms [with acute
appendicitis]?’109
108. Rogotzki v. Schept, 91 N.J. Super. 135, 156 (App. Div. 1966).
109. Rogotzki v. Schept, 91 N.J. Super. 135, 157 (App. Div. 1966).
The court held that these questions were proper, stating:
With the exception of questions 1, 9, 13 to 15, 31
to 33, and 35, the questions relate to what was
done and why it was done, and are proper under
Russo, above. Nos. 13 to 15, 32 and 33 ask for an
explanation of terms used by Dr. Schept. Surely it
was proper to ask him to explain so that a lay mind
could readily understand. Nos. 1, 9, 31 and 35 are
questions which normally would be asked on crossexamination.
However, McDermott v. Manhattan
Eye, Ear & Throat Hospital, [15 N.Y.2d 20, 255
N.Y.S.2d 65, 203 N.E.2d 469 (Ct. App. 1964)] above,
considered in light of the much broader reach of
pretrial discovery, would clearly allow them, and
the difficulty of proving malpractice would seem to
require that they be answered.110
See also Rabinowitz v. Wahrenberger,111 in which the Appellate
Division held:
Counsel must be free at a deposition to explore and
probe the claims that have been asserted against his
or her client. To expose the attorney to the risk of
litigation on the basis of such questioning would
subvert the underlying policy of the litigation
privilege and would be antithetical to the views
repeatedly expressed by our Supreme Court.112
Therefore, it would appear that any inquiry which may lead
to the discovery of relevant information is discoverable during a
deposition.
Deposition Questions Concerning Opinions
It is now settled that a party may not refuse to answer deposition
questions which call for opinion testimony. In Hutchinson v. Atlantic
City Medical Center-Mainland,113 one defendant ordered certain
tests after the birth of plaintiff’s child, including a complete blood
110. Rogotzki v. Schept, 91 N.J. Super. 135, 158 (App. Div. 1966).
111. Rabinowitz v. Wahrenberger, 406 N.J. Super. 126 (App. Div. 2009).
112. Rabinowitz v. Wahrenberger, 406 N.J. Super. 126 (App. Div. 2009).
113. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468 (App.
Div. 1998).
count (CBC). The infant was discharged from the hospital by
another pediatrician who did not have the results of the CBC. The
plaintiff was diagnosed with meningitis five days after his birth,
and was left with permanent disabilities, including total bilateral
deafness. On appeal, the defendant contended that the trial court
erroneously allowed plaintiff to use his deposition to establish the
standard of care. Plaintiff read the deposition testimony of this
defendant including questions such as the following:
‘Q. … Am I correct that in accordance with the standard
practice at the hospital a C.B.C. was ordered for
Matthew Hutchinson as it was for every newborn
at that time?
A. That is correct.
Q. And what is the purpose of the white blood cell count
in the analysis of the subsets with differential? What’s
the purpose if a pediatrician orders that test?
A. To assess the level of white blood cells.
Q. What’s the purpose of assessing the white blood
cells?
A. To look for possible signs of infection.
Q. Did you consider these particular orders, the ten
orders that appear here, to be the standard of care in
standing orders for newborns as of August of 1991?
A. Yes.
Q. In August of 1991, Dr. Dearden, did the standard
of care for pediatrics in discharging a newborn
infant from the hospital require that the discharging
physician ascertain the laboratory values of all
studies that had been conducted on the infant
during his stay in the hospital?
A. It would require proper follow up on that.
Q. I think my question was, did the standard of care
require that the discharging physician obtain the
results of all studies that had been conducted on
the child during his admission?
A. I can answer the question. Yes, it behooves the
Doctor to follow up on the lab values.’114
In affirming the trial court’s decision to allow plaintiff to utilize
this testimony, the Appellate Division explained that Hull “no
longer represents the law of this State.”115 The court relied on
Rogotzki v. Schept,116 for its holding that a plaintiff may question
a defendant physician regarding “expert opinions relevant to
the diagnosis and treatment of the plaintiff.”117 The Hutchinson
court noted that Rogotzki involved a deposition as opposed to
the trial testimony barred in Hull. However, the Hutchinson court
observed that in Rogotzki the Appellate Division had stated:
Were we called upon to pass on the question
considered in Hull, and were the Hull opinion that
of a court other than our former Court of Errors
and Appeals, we would deem its result somewhat
less than an enlightened one. In our view, it runs
counter to the trend of liberal decisions where the
aim is to reach at the truth of the matter, rather
than indulge in the niceties which have so often
characterized evidence law in the past.118
The Hutchinson court also cited Lanzet v. Greenberg,119 for the
Supreme Court’s approval of Rogotzki’s conclusion that “proof
of deviation elicited from the defendants themselves, because they
are competent professionals, could be relied on by the jury.” 120 The
Hutchinson court explained:
By referring to ‘[p]roof of deviation elicited from
the defendants . . . because they are competent
114. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 475-76
(App. Div.
1998).
115. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 477
(App. Div.
1998).
116. Rogotzki v. Schept, 91 N.J. Super. 135 (App. Div. 1966).
117. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 477
(App. Div.
1998).
118. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 477
(App. Div. 1998)
(citing Rogotzki v. Schept, 91 N.J. Super. 135, 147-48 (App. Div. 1966)).
119. Lanzet v. Greenberg, 126 N.J. 168, 191 (1991).
120. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 478
(App. Div. 1998)
(citing Lanzet v. Greenberg, 126 N.J. 168, 191 (1991) and Rogotzki v. Schept, 91
N.J. Super.
135, 148-49 (App. Div. 1966)).
professionals’ and citing Rogotzki, the [Lanzet]
Court must have had in mind the expert opinions
of the defendant doctor relating to the alleged
malpractice.121
The Hutchinson court also noted that in Stigliano v. Connaught
Laboratories, Inc.,122 the New Jersey Supreme Court “adopted an
expansive view of the scope of questions which may be asked of
any treating physician, including a non-party.” 123 The Hutchinson
court adopted Stigliano’s conclusion that “the characterization
of the treating doctor’s testimony as ‘fact’ or ‘opinion’ creates an
artificial distinction.” 124
The Hutchinson court concluded that a defendant’s testimony
should not be considered expert opinion but
[r]ather, it was testimony explaining what he did,
and why, when treating the infant plaintiff. His
further testimony that the hospital’s standing orders
constitute the applicable standard of care did not
add materially to his prior testimony regarding his
examination of Matthew.125
The Appellate Division observed that pursuant to New Jersey
Rules of Evidence 402, all relevant evidence is admissible, and since
the testimony of the defendant was relevant it was also admissible.
The court added:
Furthermore, Hull’s prohibition against asking a
defendant doctor in a malpractice action for an
expert opinion relevant to the plaintiff’s claim
cannot be reconciled with the rules of evidence
adopted by our present Supreme Court. N.J.R.Evid.
402 provides that ‘[e]xcept as otherwise provided
in these rules or by law, all relevant evidence is
admissible.’ Because the opinion of a defendant
121. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 478
(App. Div. 1998).
122. Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995).
123. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 479
(App. Div.
1998).
124. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 479
(App. Div. 1998)
(citing Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995)).
125. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 479
(App. Div.
1998).
doctor in a malpractice action concerning the
standard of care which governed plaintiff’s care is
clearly relevant, that opinion is admissible unless
made inadmissible by law. . . . Therefore, we perceive
no basis under N.J.R.Evid. 402 for the exclusion of
a defendant doctor’s trial or deposition testimony
relating to the applicable standard of care.126
The court concluded:
In sum, we conclude that the authority of Hull
has been so thoroughly undermined by Lanzet,
Stigliano and the current evidence rules that it no
longer represents the controlling law in this State.
Therefore, the trial court properly allowed plaintiffs
to use Dr. Dearden’s deposition testimony as
evidence of the applicable standard of care.127
Deposition Testimony Supporting Learned Treatises
In an opinion important in informed consent cases, the Appellate
Division expanded the scope of discovery obtainable from a
defendant in a malpractice case in Adamski v. Moss.128 In Adamski,
the court noted that learned treatises became conditionally
admissible as substantive evidence as a result of the Court’s decision
in Jacober v. St. Peter’s Medical Center.129 The Court noted that
a prerequisite for use of learned treatises is that the “particular
treatise must be established as a reliable authority by testimony or
by judicial notice.”130 The Adamski court concluded that a plaintiff
could compel a defendant doctor in a deposition to provide the
opinion which is the foundational prerequisite to use of the learned
treatise.131 Adamski is particularly significant in informed consent
cases, because as the Adamski court noted while
126. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 479-80
(App. Div.
1998).
127. Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 481
(App. Div.
1998).
128. Adamski v. Moss, 271 N.J. Super. 513 (App. Div. 1994).
129. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475 (1992).
130. Adamski v. Moss, 271 N.J. Super. 513, 520 (App. Div. 1994).
131. Adamski v. Moss, 271 N.J. Super. 513, 520 (App. Div. 1994).
no medical expert is required to prove that an
undisclosed risk would have been material to the
patient’s consent, it must first be shown that the risk
… was recognized within the medical community.132
Adamski permits the plaintiff to compel the defendant to establish
the reliability of a publication which demonstrates knowledge in
the medical community of the risk which occurred. Thus when
a defendant concedes that the risk is recognized by a reliable
publication, the need for an expert may be eliminated in many
informed consent cases. The safe practice will be to file a pretrial
motion for partial summary judgment regarding the knowledge in
the medical community of the particular risk involved in the case.133
Depositions of Experts
There are almost no limits on what can be asked of an expert
during a deposition. The vast scope of the deposition of an
expert was set forth in Gewecke v. Wolarsky,134 where plaintiff’s
expert alleged that a defendant was negligent in failing to obtain
adequate information from another doctor prior to performing
surgery. During the deposition of plaintiff’s expert, the following
hypothetical question was posed:
Now, I am asking you in this case to assume
that Dr. Schwartz was aware of the status of this
man’s cardio-pulmonary and abdominal injuries,
if any, from Dr. Wolarsky in the emergency
room. Wouldn’t it be appropriate, and given that
information, for him to concentrate on the man’s
ENT complaints?135
Plaintiff’s counsel objected, arguing that the hypothetical
question was based on facts contradicted by the record, and
directed plaintiff’s expert not to answer the question. In resolving
the dispute the court first acknowledged the distinction between
inquiries made at trial from information sought at a deposition.
132. Adamski v. Moss, 271 N.J. Super. 513, 519 (App. Div. 1994) (citing
Febus v. Barot, 260
N.J. Super. 322, 327 (App. Div. 1992)).
133. See discussion Chapter 4, §§ 7-12 and 7-14.
134. Gewecke v. Wolarsky, 186 N.J. Super. 166 (Law Div. 1982).
135. Gewecke v. Wolarsky, 186 N.J. Super. 166, 168 (Law Div. 1982).
At trial, opinion testimony must be based on “facts or data
received by or made known to him at or before the hearing,” while
for discovery purposes, the information sought need only appear
“reasonably calculated to lead to the discovery of admissible
evidence.”136 The court distinguished Rogotzki v. Schept,137 because
although that case prohibited the asking of hypothetical questions
of a defendant, “an expert witness can be asked purely hypothetical
questions.”138 Nevertheless, the court concluded that it would
be improper to require the expert to respond to a hypothetical
question not based on the evidence, explaining:
It is entirely clear that some hypothetical questions
are beyond the pale. For example, suppose the
question here had been: ‘Doctor, if your patient
had been a horse and not a man, would your
opinion be different?’ No one would contend this
question was permissible. The information sought
would not be ‘reasonably calculated to lead to
the discovery of admissible evidence.’ Or take the
question proposed to Dr. Ciell paraphrased for
convenience: ‘Doctor, if Dr. Schwartz had known
facts which he did not know, namely, the status
of decedent’s cardio-pulmonary and abdominal
injuries, would your opinion be different?’ Can it
be said that the answer (‘the information sought’)
is ‘reasonably calculated to lead to the discovery
of admissible evidence?’ I conclude that it is not,
that an expert’s opinion based on unknown facts
is not likely, except in an unacceptably tenuous
way, to lead to the discovery of any admissible
evidence. Furthermore, it offers the opportunity
for endless hypothetical questions: it would
permit exploration of a witness’s opinion without
136. Gewecke v. Wolarsky, 186 N.J. Super. 166, 169 (Law Div. 1982) (citing
New Jersey
Court Rule 4:10-2(a)).
137. Rogotzki v. Schept, 91 N.J. Super. 135, 152 (App. Div. 1966).
138. Gewecke v. Wolarsky, 186 N.J. Super. 166, 170 (Law Div. 1982).
limitation and without profit. This would constitute
oppression.139
The Gewecke court therefore held that the
facts contained in a hypothetical question put to
an expert witness must be in the record or known
by counsel to be available. On request, counsel
conducting the examination must represent that
the facts do exist and must identify their source.140
However, the court acknowledged that in certain cases the
deposition may take place before “counsel knows with any
reasonable degree of certainty whether the fact in question is
available.”141
In such cases, it is unfair to apply the basic rule
and limit discovery, thereby excluding access to
information or duplicating and extending discovery
procedures. It is enough, in these situations, to
represent that in counsel’s presently held, honest
belief, the fact is likely to be available, that due
diligence will be exercised to make it available,
and, if discovered, that opposing counsel will be so
advised and will be supplied with an identification
of source. In making this representation, counsel
must state the reason that the limited representation
is required to be made, e.g., that an absent witness,
familiar with the circumstances surrounding the
fact in question, is yet to be interrogated, or that
an expert witness has not completed her analysis
and report.142
Nevertheless, directions to an expert not to answer a question
posed at a deposition should be used sparingly, if at all, given
the 1996 amendments to the rules regarding depositions. The
penalty for directing an expert not to answer a question may
139. Gewecke v. Wolarsky, 186 N.J. Super. 166, 171-72 (Law Div. 1982).
140. Gewecke v. Wolarsky, 186 N.J. Super. 166, 172 (Law Div. 1982).
141. Gewecke v. Wolarsky, 186 N.J. Super. 166, 172 (Law Div. 1982).
142. Gewecke v. Wolarsky, 186 N.J. Super. 166, 172-73 (Law Div. 1982).
be severe. For example, in Nguyen v. Tama,143 plaintiff alleged
that the defendant, an obstetrician, improperly managed her
labor and delivery and specifically failed to treat preeclampsia.
After the jury rendered a substantial verdict for the plaintiff,
the defendant appealed, arguing that the plaintiff should not
have been able to comment on the defendant’s failure to produce
expert testimony regarding defendant’s conduct in the recovery
room. However, the court noted that defendant’s expert had
been instructed by defendant’s attorney at depositions not to
answer questions regarding the recovery room conduct. The
court therefore decided:
Having been so instructed, plaintiff at trial
demanded that the witness not be permitted
to testify in this subject. Since defendant had
produced no other witness on this subject, he had
no testimony to rebut plaintiff’s claims concerning
what the recovery room conduct should have been.
Plaintiff’s comment on summation that the defense
expert had not testified in this area was proper.
Defendant cannot complain about a problem he
created.144
However, experts may not be compelled to disclose the work
product of the attorney that has retained the expert, unless the
expert’s opinion is based on the information received from the
attorney. In Coyle v. Estate of Simon,145 plaintiffs submitted a
statement to their attorney, and the attorney gave copies of the
statement to plaintiff’s experts. The experts admitted they read
the statements but stated they could not recall whether they relied
on any portion of the statements in forming their opinions. The
defendants filed a motion to compel disclosure of the statements
and the trial court ruled that the attorney-client privilege was
waived by disclosure of the statements to the experts. The Appellate
Division reversed, noting that communications between a lawyer
and a client are privileged and that the privilege is not lost by
143. Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997).
144. Nguyen v. Tama, 298 N.J. Super. 41, 53 (App. Div. 1997).
145. Coyle v. Estate of Simon, 247 N.J. Super. 277 (App. Div. 1991).
sharing the statement with an expert.146 However, the court noted
that even a document protected by the attorney-client privilege
becomes discoverable when utilized by an expert witness to form
the expert opinion.147 The court advised:
Care must be taken, however, to maintain the
protection of the privilege with respect to attorneyclient
communications that the client’s expert
will not use at trial and which therefore remain
confidential. We suspect that at most only portions
of plaintiffs’ statements to their attorney were used
by the expert witnesses to arrive at the opinions they
are expected to give at trial. Only those portions
are free of the attorney-client privilege. The trial
judge therefore erred in ordering that the entire
contents of the statements be disclosed without
first examining them in camera.148
Finally, the court noted that since the experts testified that they
could not recall what portions of the statements they relied on in
forming their opinions:
Instead of trying to discern what portions of
the statements the experts chose to rely upon,
the waiver must encompass those portions that
are relevant to an evaluation of their opinions.
A party’s statements given to his or her expert
witness are not shielded by the attorney-client
privilege if they could reasonably aid a fact finder
in evaluating the opinions the expert is expected to
give at trial. Upon request of the other party, the
trial judge shall determine by an in camera review
of the statements which portions are relevant in
that respect and must therefore be disclosed in
discovery.149
146. Coyle v. Estate of Simon, 247 N.J. Super. 277, 281-82 (App. Div. 1991).
147. Coyle v. Estate of Simon, 247 N.J. Super. 277, 282 (App. Div. 1991)
(citing N.J. Ct.
R. 4:10-2(d)(1)).
148. Coyle v. Estate of Simon, 247 N.J. Super. 277, 283 (App. Div. 1991).
149. Coyle v. Estate of Simon, 247 N.J. Super. 277, 284 (App. Div. 1991).
See also Bendar v. Rosen,150 where plaintiff’s attorney questioned
the defendant about his affiliation with Princeton Insurance
Company. The Appellate Division concluded:
It does not appear to us that a mention of
insurance, and here not even the defendant’s own
insurance, warrants a mistrial. … The trial judge
ruled that the mere mention of insurance was
not fatal and permitted the continued inquiry,
limited to the issue of the doctor’s credibility. We
find the judge’s handling of this problem to be a
reasonable exercise of his discretion and the line of
questioning a proper attempt to induce [defendant]
to admit that he was biased towards the defense in
malpractice cases.151
In Gensollen v. Pareja,152 the Appellate Division discussed the
limits of an inquiry into an expert’s finances and litigation history
to demonstrate the expert’s “positional bias.”153 For discussion of
discovery of prior testimony or transcripts of an expert, see the
Appellate Division’s recent decision in Collado v. Roman.154
Finally, see also Haynes v. Ethicon,155 where the court granted
plaintiff leave to produce its expert witnesses, who were located in
Massachusetts, for depositions by live video conference.
Material Change in Testimony
by a Witness
The obligation to advise an adversary that the testimony of a
witness has materially changed between deposition and trial, and
the remedies available to a party when advised of such changed
testimony, were discussed in McKenney v. Jersey City Medical
Center.156 In McKenney, the plaintiffs brought an action seeking
150. Bendar v. Rosen, 247 N.J. Super. 219 (App. Div. 1991).
151. Bendar v. Rosen, 247 N.J. Super. 219, 236 (App. Div. 1991).
152. Gensollen v. Pareja, 416 N.J. Super. 585 (App. Div. 2010).
153. Gensollen v. Pareja, 416 N.J. Super. 585, 590-92 (App. Div. 2010). See
also § 9-19 for
discussion of the cross-examination of expert witnesses.
154. Collado v. Roman, No. A-0482-10T1, 2011 N.J. Super. Unpub. LEXIS
2324 (N.J.
Super. App. Div. Aug. 30, 2011).
155. Haynes v. Ethicon, 315 N.J. Super. 338 (Law Div. 1998).
156. McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001).
damages for the wrongful birth of their son. The plaintiffs alleged
that an ultrasound taken in August 1990 demonstrated evidence of
spina bifida. The plaintiffs contended that if they had been advised
of the possibility of a birth defect they would have terminated the
pregnancy.
The plaintiffs brought suit against several doctors and a certified
ultrasound technician, Ms. Sipra De. Prior to trial, the court
granted summary judgment to Ms. De based upon her pretrial
deposition testimony that she did not make a notation which
stated “follow-up study suggested” on the ultrasound report.
At trial, Ms. De was called as a witness by a defendant and she
testified that she had in fact made the notation “follow-up study
suggested” on the report of the ultrasound. At the end of Ms. De’s
direct testimony, the plaintiffs’ attorney informed the court that
Ms. De had contradicted her sworn testimony given during her
deposition and that the plaintiffs therefore moved for a mistrial
or for leave to bring Ms. De back into the case. Counsel for the
plaintiffs also moved for the opportunity to interview Ms. De out
of the presence of the jury and for additional time to prepare for
cross-examination. The trial court denied all of these motions.157
The jury found that certain defendants were not negligent and
that the negligence of the remaining defendants was not a proximate
cause of any injury to the plaintiff. The Appellate Division affirmed,
but the Supreme Court granted certification limited to the issue
of whether defense counsel were obligated to advise the plaintiffs
of the material changes in the anticipated testimony of Ms. De.158
At oral argument, counsel for the one of the defendants conceded
that he had in fact learned prior to trial that Ms. De would change
her testimony but did not advise plaintiffs’ counsel of this fact. The
Supreme Court held:
[D]efense counsel had a continuing obligation to
disclose to the trial court and counsel for plaintiffs
any anticipated material changes in a defendant’s
or material witness’s deposition testimony. Lawyers
have an obligation of candor to each other and
157. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 368 (2001).
158. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 369 (2001).
to the judicial system, which includes a duty of
disclosure to the court and opposing counsel.159
The issue, then, became what was the appropriate remedy for
“non-disclosure of the surprise testimony.”160 The McKenney Court
observed that the surprise testimony was severely prejudicial in that
it was not discovered until after plaintiffs had prepared the case
for trial and in fact concluded their presentation of the evidence.
Furthermore, the defendant, Ms. De, had been granted summary
judgment. The Supreme Court, emphasizing that “concealment and
surprise are not to be tolerated,” therefore reversed and remanded
for a new trial and granted the plaintiff leave to file a motion to
vacate the judgment dismissing the case against Ms. De.
The issue of a change in testimony also arose in Liguori v.
Elmann,161 where the plaintiff’s mother underwent quadruple
coronary artery bypass surgery performed by the defendant
Dr. Elmann, a cardiovascular and thoracic surgeon. During the
operation Dr. Elmann was assisted by the defendant Dr. Hunter, a
cardiac surgery fellow. After the operation, the plaintiff’s mother
developed a pneumothorax, or a collapsed lung, which results in
increased air pressure in the chest. Dr. Hunter decided to insert
a chest tube to relieve the air pressure in his patient’s chest. Soon
thereafter, the patient was noted to have substantial bleeding.
Another doctor, Dr. Praeger, “discovered a hole in the left
ventricle of her heart, which he repaired. He also noted that the
hole in the heart was ‘related to the insertion of the chest tube.’”162
Subsequently, “Mrs. Liguori suffered from a series of ‘cascading
complications,’ resulting in her death from septic shock in February
of 2000.”163
The jury ruled for the defendants on all claims. The Appellate
Division affirmed the dismissal, and the Supreme Court rejected
the plaintiffs’ claim “that they were deprived of a fair trial because
they were not alerted in advance of trial to a change in the
159. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001).
160. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 372 (2001).
161. Liguori v. Elmann, 191 N.J. 527 (2007).
162. Liguori v. Elmann, 191 N.J. 527, 535 (2007).
163. Liguori v. Elmann, 191 N.J. 527, 539 (2007).
causation opinion that would be offered by defendants’ expert.”164
The defendants’ expert, Dr. Richard Kline, testified during his
deposition that the injury to Mrs. Liguori’s heart could have been
caused because her heart had shifted inside of the chest cavity due
to increased pressure, and during the procedure her heart could
“have suddenly shifted back, causing her heart to strike the clamp
and be damaged.”165 Alternatively, Dr. Kline testified that “the
insertion of the clamp during the procedure to insert the chest tube
could have directly damaged the heart.”166 Shortly before trial,
Dr. Kline concluded that
the injury was caused by the clamp. In effect, this
change in his testimony brought his view about
causation directly into alignment with the views of
plaintiffs’ expert.167
As a result, the defendants conceded that their actions were the
cause of the patient’s death, and the trial court entered a directed
verdict on that issue.
The plaintiffs nevertheless contended that this change in
testimony entitled them to a new trial. The Court began the
analysis of this issue by recalling that “[l]awyers have an obligation
of candor to each other and to the judicial system, which includes
a duty of disclosure to the court and opposing counsel.”168 The
Court emphasized that
defense counsel has an ‘obligation to disclose
to the trial court and counsel for plaintiffs any
anticipated material changes in a defendant’s or a
material witness’s deposition testimony.’169
However, in rejecting the appeal, the Court explained that:
We do not retreat from the views we have previously
expressed about the significance of a failure to
abide by the requirements of our discovery rules.
164. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
165. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
166. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
167. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
168. Liguori v. Elmann, 191 N.J. 527, 551 (2007) (citing McKenney v. Jersey City
Med. Ctr.,
167 N.J. 359, 371 (2001)).
169. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
In this case, however, the record discloses that the
change in the expert’s opinion, although significant,
was one which brought his opinion into alignment
with plaintiffs’ expert. That is to say, although the
opinion he offered was a change from the view he
expressed in his deposition, it was, in the end, an
acknowledgment that plaintiffs’ expert’s opinion
on how the injury to Mrs. Liguori’s heart was
caused was correct. We do not perceive, in these
circumstances, any prejudice to plaintiffs.170
See also Cohen v. Community Medical Center,171 where the plaintiff
contended that the trial court erred by refusing to give an adverse
inference charge due to the failure of defendants to produce the triage
nurse who evaluated plaintiff when he first presented to the emergency
room. The plaintiff had served a notice in lieu of subpoena to compel
production of this nurse at trial. The defendant did not respond to
the notice until the day of trial, at which time the defendant’s counsel
advised that the nurse “would not be produced because she no longer
worked for CMC and was no longer in the state.”172 Plaintiff’s counsel
sought an adverse inference charge, which the court declined to give
based upon its determination that CMC no longer had any control
over the nurse. The Appellate Division observed:
‘Generally, failure of a party to produce before a
trial tribunal proof which, it appears, would serve
to elucidate the facts in issue, raises a natural
inference that the party so failing fears exposure of
those facts would be unfavorable to him.’ …
.…
The condition of plaintiff’s left foot at the time he
arrived at the emergency room on March 11, 2003,
was a contentious issue during the trial. Nurse
Gleason’s entries in the hospital record indicate that
plaintiff presented with ‘purulent drainage’ in the
left foot, a fact that defendant Chung denied. He
170. Liguori v. Elmann, 191 N.J. 527, 550 (2007).
171. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387 (App. Div. 2006).
172. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 402 (App. Div. 2006).
testified that had plaintiff presented with ‘purulent
discharge,’ he would have contacted plaintiff’s
doctor to admit plaintiff or to come to the hospital
to examine plaintiff. …
In advance of retrial, plaintiff is entitled to receive
from defendant CMC the last known address and
any other information CMC may possess relative
to Nurse Gleason’s whereabouts. McKenney v.
Jersey City Med. Ctr., 167 N.J. 359, 371-72 (2001)
(‘Lawyers have an obligation of candor to each
other and to the judicial system, which includes
a duty of disclosure to the court and opposing
counsel’). … If plaintiff is unable to locate and
depose the witness, the court should conduct
proceedings pursuant to R. 1:2-4 to determine
whether any sanctions should be imposed for
CMC’s failure to provide a timely response to the
notice in lieu of subpoena.173
TREATING PHYSICIANS’ OPINIONS,
REPORTS AND TESTIMONY
Use of Treating Physicians’ Opinions
Value of Treating Physicians’ Testimony
In Stigliano v. Connaught Laboratories,174 Justice Pollock observed
that the testimony of a treating physician is of special value to the
proponent of the opinion.
Without impugning the expert witnesses who
may testify for either plaintiffs or defendants, the
treating doctors may be the only medical witnesses
who have not been retained in anticipation of trial.
A jury could find the treating doctors’ testimony
173. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 401-03 (App. Div. 2006)
174. Stigliano v. Connaught Labs., 140 N.J. 305 (1995).
to be more impartial and credible than that of the
retained experts.175
See also Bober v. Independent Plating Corp.,176 where the Supreme
Court acknowledged that:
In the process of evaluation, a criterion of
recognized significance is the greater opportunity
of a treating physician, as compared with a doctor
who conducts a single examination in order to
become an expert medical witness, to know,
understand and decide upon the producing cause
of the patient’s condition.177
Another reason the opinions of treating doctors are often given
extra consideration is that a subsequent treating physician is often a
specialist who possesses a detailed knowledge of the patient’s history
and medical condition, as well as specialized expertise in the illness
or disease involved in the case. However, physicians are required
by the Principles of Medical Ethics to maintain the confidentiality
of a patient’s medical condition and records. Patients have argued
that it is improper for a treating physician to serve as an expert
against the patient. The courts have struggled to reconcile the
conflict between the patient’s right to confidentiality and the policy
against the exclusion of relevant and probative evidence.
Discovery of Treating Physician’s Opinion
Whether and to what extent a defendant is entitled to discover
the opinions of the plaintiff’s treating doctor was discussed in
Di Donna v. Zigarelli.178 In Di Donna, the defendant was permitted
to take the deposition of plaintiff’s subsequent treating physician,
but the scope of the inquiry was limited.
175. Stigliano v. Connaught Labs., 140 N.J. 305, 317 (1995); see also Jarrell v.
Kaul, No.
A-3492-11T1, 2013 N.J. Super. Unpub. LEXIS 469 (N.J. Super. App. Div.
Mar. 1, 2013)
(approving use of a treating doctor as a fact witness, not an expert witness,
who “may
discuss his diagnosis and treatment, including his opinion as to the cause of
the patient’s
disorder. Stigliano v. Connaught Laboratories, 140 N.J. 305, 314 (1995).”).
176. Bober v. Indep. Plating Corp., 28 N.J. 160 (1958).
177. Bober v. Indep. Plating Corp., 28 N.J. 160, 167 (1958); accord Mewes v.
Union Bldg. &
Constr. Co., 45 N.J. Super. 89 (App. Div. 1957); Celeste v. Progressive Silk
Finishing Co.,
72 N.J. Super. 125 (App. Div. 1962); Abelit v. Gen. Motors Corp., 46 N.J.
Super. 475 (App.
Div. 1957).
178. Di Donna v. Zigarelli, 61 N.J. Super. 302 (App. Div. 1960).
There can be no doubt that in this case defendant is
entitled to inquire of the physician, who treated the
minor plaintiff subsequent to the time that he was
under defendant’s care, as to the dates and places
of his treatment, his observations, results of tests
conducted and relevant statements or admissions
made by the adult plaintiff, as well as the ‘history’
which he may have received from the parents of
the infant. Also, specifically limiting our ruling to
the situation existing in the case at bar, we hold
that the defendant herein is entitled by deposition
to inquire into the findings and diagnoses made in
the opinion of the treating physician and to require
the production of records incident to his activity as
a treating physician.179
The discovery permitted by the court in Di Donna was the same
discovery that a plaintiff could compel a defendant to divulge
under Rogotzki and Myers.180
Use of Subsequent Treating Physician as Witness
Subsequent Treating Physician as Witness
Concerning Liability Issues
The use of a subsequent treating doctor was then the subject of
a series of four appellate cases, Piller v. Kovarsky,181 Lazorick v.
Brown,182 Serrano v. Levitsky183 and Kurdek v. West Orange.184
In Piller, plaintiff alleged that the defendants negligently treated
a fractured arm, permitting development of a Volkman’s ischemic
contracture. Upon diagnosing the condition, the defendant referred
plaintiff to Dr. Harold Dick, who was described as
a prominent orthopedist at Columbia Presbyterian
Hospital who specialized in pediatric reconstructive
179. Di Donna v. Zigarelli, 61 N.J. Super. 302, 311-12 (App. Div. 1960).
180. See discussion, §§ 9-6, 9-11:2 and 9-11:3.
181. Piller v. Kovarsky, 194 N.J. Super. 392 (Law Div. 1983).
182. Lazorick v. Brown, 195 N.J. Super. 444 (App. Div. 1984).
183. Serrano v. Levitsky, 215 N.J. Super. 454 (Law Div. 1986).
184. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218 (Law Div. 1987).
surgery, and under whom defendant, Dr. Levine,
had once trained. Dr. Dick has performed
numerous operations on the infant plaintiff and
she still remains under his care.185
After plaintiff filed suit against the defendant, counsel for the
defendant retained Dr. Dick as an expert on liability, and Dr. Dick was
prepared to testify that the defendant did not commit malpractice.
The court noted that plaintiffs intended to call Dr. Dick at trial to
testify solely as to damages.186 The court concluded that the
patientphysician
privilege N.J.S.A. 2A:84A-22.1 does not bar the physician’s
testimony since the patient had put her physical condition in issue.187
However, the court held that the plaintiff’s treating physician could
not testify as an expert against her as to liability:
[I]t could not help but have a detrimental effect on
the quality of the relationship, and who can say
that this would not thereby affect the well-being
of the patient. Furthermore, volunteering to be
an adversary exploits the relationship because
the physician’s opinions as to liability may rest
partially on information gained indirectly by him
only because of his position of trust, whereas
precluding his opinion testimony on liability will
no way hinder the jury’s quest for the true facts. I
conclude the fiduciary nature of the relationship
should preclude a physician from testifying against
his patient as a liability expert, at least in a medical
malpractice action involving the very condition for
which the defendant has treated a patient.188
The Piller court also held that the probative value of the
subsequent treating doctor’s opinion testimony on liability
is substantially outweighed by the unduly prejudicial
manner of its presentation, as well as the substantial
danger that the jury will be misled. The prejudice
arises from the fact that the plaintiff was referred by
185. Piller v. Kovarsky, 194 N.J. Super. 392, 395 (Law Div. 1983).
186. Piller v. Kovarsky, 194 N.J. Super. 392, 395 (Law Div. 1983).
187. Piller v. Kovarsky, 194 N.J. Super. 392, 396 (Law Div. 1983).
188. Piller v. Kovarsky, 194 N.J. Super. 392, 398-99 (Law Div. 1983).
defendants to Dr. Dick for treatment because of his
outstanding ability to treat the particular condition
involved, that they will have to call him as a witness
on the damage phase of their case and present him
as a highly qualified expert in his field, and that they
then will have to answer an argument that ‘their own
doctor says there is no malpractice.’ The defendants
have an unfair advantage when they present Dr.
Dick because the plaintiffs have already necessarily
vouched for his credibility and the value of his
opinions. While this may be a clever defense strategy,
its inherent prejudice substantially outweighs the
probative value of Dr. Dick’s opinion on liability. A
trial judge has discretion to prevent unfair innuendo
which might arise as a result of trial strategy. Surely
the defense can find another specialist of Dr. Dick’s
caliber to testify as their expert; indeed, they have
named another orthopedist who is presumably
qualified to state the same opinions.189
The Court therefore barred Dr. Dick from testifying on behalf
of the defendants as an expert on liability.190
A similar holding, prohibiting the rendering of an opinion on
liability is found in Serrano v. Levitsky.191 In Serrano, plaintiff
sustained injuries during surgery performed by the defendant.
Plaintiff’s attorney obtained the report from a subsequent treating
doctor which contained, in addition to a description of the diagnosis,
treatment and prognosis, the opinion that the defendant was not
negligent during the surgery. The opinion regarding negligence was
not requested by plaintiff’s attorney. Plaintiff served the report,
but disclaimed that portion of the report regarding negligence.
During the trial, defendants attempted to elicit the opinion of the
subsequent treating doctor regarding the absence of negligence by
the defendant doctor. The trial court held:
The mere fact that an expert report is furnished to
the opposing party in accordance with the rules
189. Piller v. Kovarsky, 194 N.J. Super. 392, 399-400 (Law Div. 1983).
190. Piller v. Kovarsky, 194 N.J. Super. 392, 400 (Law Div. 1983).
191. Serrano v. Levitsky, 215 N.J. Super. 454 (Law Div. 1986).
does not thereby constitute an adoption of the
report by the person forwarding it. An expression
that the party does not adopt the report is a
sufficient disclaimer of the report.192
The court held that as to liability, the subsequent treating
physician was an expert who was not expected to be called at
trial. Therefore, the defendant could not utilize the opinion of
this physician at trial as to liability unless there were “exceptional
circumstances“ under New Jersey Court Rule 4:10-2(d)(2), -2(d)(3).
Since defendant already had an expert on liability, no exceptional
circumstances existed and the court prohibited the defendant from
calling plaintiff’s subsequent treating doctor as an expert as to
liability.193 The court concluded:
It would be unfair in this case to permit plaintiff’s
own physician to undermine plaintiff’s case. Plaintiff
had no choice but to use the report furnished to
him by his treating physician, who apparently felt
that his professional loyalty to another physician
outweighed his loyalty to his patient. The doctor’s
professional fealty must not be allowed to harm
his patient to whom he owes the greater duty. To
allow this evidence to be admitted against plaintiff
would, in effect, rob plaintiff of his case. It would
simply be outrageous and totally unjust to permit
the opinion of plaintiff’s own treating physician
and expert to be used against him.194
Similarly, in Cogdell v. Brown,195 the court noted:
A defendant cannot cross-examine plaintiff’s
treating doctor as to whether defendant doctor was
negligent in his treatment of plaintiff. Serrano v.
Levitsky, 215 N.J. Super. 454 (Law Div. 1986).196
192. Serrano v. Levitsky, 215 N.J. Super. 454, 458 (Law Div. 1986).
193. Serrano v. Levitsky, 215 N.J. Super. 454, 459 (Law Div. 1986).
194. Serrano v. Levitsky, 215 N.J. Super. 454, 460 (Law Div. 1986).
195. Cogdell v. Brown, 220 N.J. Super. 330 (Law Div. 1987).
196. Cogdell v. Brown, 220 N.J. Super. 330, 333-34 (Law Div. 1987).
Subsequent Treating Physician as Witness
Regarding Causation
However, in Lazorick v. Brown,197 the issue was whether subsequent
treating doctors could serve as experts as to causation. In Lazorick,
plaintiff contended that she developed severe systemic vasculitis
as a result of the defendants improperly prescribing an antibiotic.
Counsel for the defendant intended to call plaintiff’s subsequent
treating doctors who were of the opinion that the amoxicillin was
“not the cause of the disease.”198 Thus, defendant proffered the
witnesses not as to the standard of care or deviation therefrom,
but solely as to causation.199 The trial court nevertheless barred
the subsequent treating doctors from testifying against plaintiff.
The Appellate Division granted leave to appeal and reversed. In
allowing the testimony of the subsequent treating doctors as to
causation, the court stated:
The policy of law is to allow all competent,
relevant evidence to be produced, subject only to
a limited number of privileges. See Evid. R. 7. As
stated in Hague v. Williams, 37 N.J. at 335, ‘society
has a right to testimony and . . . all privileges of
exemption from this duty are exceptional.’ . . . It
would be a mistake to say that all testimony of a
treating doctor is so tainted because he conversed
with his patient’s adversary that his testimony must
be excluded. Such a rule would inevitably impede
the search for truth. Nor can we say that the justice
system should pay this price so that the doctorpatient
relationship will not be bruised. Defendants
ought to have the same right of access as plaintiffs
have to potential witnesses, even if they are treating
physicians.
Accordingly, we hold that plaintiffs cannot
prevent defendants and their attorneys from
speaking privately with plaintiff ’s other
197. Lazorick v. Brown, 195 N.J. Super. 444 (App. Div. 1984).
198. Lazorick v. Brown, 195 N.J. Super. 444, 449 (App. Div. 1984).
199. Lazorick v. Brown, 195 N.J. Super. 444, 449 (App. Div. 1984).
treating physicians about any matter that is not
privileged. To allay the concerns of a doctor
who may be interviewed by defense counsel, a
plaintiff should be required to sign a document
which authorizes a release of such unprivileged
information. As stated above, the authority to
release information to a patient’s adversary does
not place any obligation upon treating doctors
to cooperate with that adversary. A doctor need
not serve voluntarily as an expert for his patient’s
adversary in litigation. Except for obligations to
their patients, doctors may refuse to divulge any
information or give any opinion unless compelled
to do so by judicial process.200
The issue was re-examined in Kurdek v. West Orange Board of
Education,201 an automobile negligence case, where defendant
called plaintiff’s treating physician for the opinion that there was
no permanent injury. At a preliminary hearing, the court advised
the doctor that he had no obligation to testify for the defendant.202
The doctor stated:
‘I have an obligation for truth. I consider myself
to be a highly ethical person. I will state the facts
of my opinion as I see them without influence one
way or the other.’203
When asked by plaintiff’s attorney whether the doctor had a “duty
of loyalty to his patient,” the doctor disclosed a significant bias when
he questioned whether such a duty was owed “[t]o a patient who
hasn’t paid my bill.”204 The plaintiff’s primary objection to testimony
from this doctor regarding the absence of a permanent injury was
that counsel for the defendant did not submit a report from plaintiff’s
treating physician. The court rejected this argument stating,
200. Lazorick v. Brown, 195 N.J. Super. 444, 456-57 (App. Div. 1984).
201. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218 (Law Div. 1987).
202. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 221 (Law Div.
1987) (citing
Lazorick v. Brown, 195 N.J. Super. 444, 457 (App. Div. 1984)).
203. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 221 (Law Div.
1987).
204. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 222 (Law Div.
1987).
It was the attorney for plaintiff who sent plaintiff
to Dr. Coblentz for a final examination and it
was plaintiff’s attorney who ‘failed’ to obtain an
expert’s report.205
The court also held that the physician-patient privilege did not
bar the testimony because by bringing a civil action the physicianpatient
privilege is waived.206 The Kurdek court noted that such
testimony is permissible where the physical condition of the patient
is made an element of the claim. Finally, the court noted that:
A statutory privilege, such as that between a patient
and physician, is to be construed restrictively, since
its ‘allowance obstructs the search for the truth. …
.…
Truth is the ultimate quest’ of all judicial
proceedings. … The fundamental principle is that
a trial is essentially a search for the truth. …
….
No party has anything resembling any proprietary
right to a witnesses’ evidence. ...
The policy of the law is to allow all competent,
relevant evidence to be produced, subject only to a
limited number of privileges.207
The Supreme Court analyzed whether a defendant could discover
and utilize the opinions of the subsequent treating physician in
Stigliano v. Connaught Laboratories.208 In Stigliano, plaintiffs
brought a medical malpractice and product liability action on
behalf of their daughter, alleging that the child’s seizure disorder
was caused by the administration of a DPT vaccine. The child
suffered a series of convulsive disorders about six and one half
hours after the pediatrician administered a DPT shot. Plaintiffs
alleged that defendant deviated from accepted standards by
administering the vaccine while the child had a fever. Plaintiffs
205. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 222 (Law Div.
1987).
206. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 224 (Law Div.
1987).
207. Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 225-26 (Law Div.
1987).
208. Stigliano v. Connaught Labs., 140 N.J. 305 (1995).
retained two experts who found a causal relationship between
the DPT immunization and the seizure disorder. The defendants
retained three experts who rendered opinions that the DPT
vaccine did not cause the seizures. Additionally, the defendant
deposed the three pediatric neurologists who had actually treated
the child for the seizure disorder. These physicians testified that
the child’s condition was not caused by the DPT shot. Two of the
treating physicians testified that the child’s condition “was not
consistent with a pertussis encephalopathy.”209 The third treating
physician testified that the child probably had a “congenital and
possibly genetic epilepsy.” The defendants gave notice that they
intended to call the child’s subsequent treating physicians as
experts at trial.
Plaintiffs moved to preclude defendants from making any
reference at trial to the opinions of the treating doctors regarding
the causation of the seizure disorder. Plaintiffs argued that (1) the
asserted “unsolicited opinions … are protected from disclosure by
the physicians’ fiduciary duties” to the plaintiffs, (2) the treating
physicians could not be called to testify because the defendants
already had experts regarding causation and thus could not
demonstrate an “exceptional need,” and (3) the causation testimony
of the treating physicians would be “unduly prejudicial and should
be excluded under Evid.R. 4 [now N.J.R.E. 403].”210 The trial court
granted the plaintiffs’ motion and barred the defendants from
utilizing the opinions of the treating doctors as to causation. The
Appellate Division reversed, stating:
We therefore see no reason to distinguish the
doctors’ testimony as to causation and their
testimony as to diagnoses and prognoses. All arise
out of and are inextricably linked to [plaintiff’s]
treatment. Defendants are entitled to elicit that
relevant and material evidence from the treating
physicians.211
209. Stigliano v. Connaught Labs., 140 N.J. 305, 308 (1995).
210. Stigliano v. Connaught Labs., 270 N.J. Super. 373, 376-77 (App. Div.
1994), aff’d, 140
N.J. 305 (1995).
211. Stigliano v. Connaught Labs., 270 N.J. Super. 373, 379 (App. Div. 1994),
aff’d, 140
N.J. 305 (1995).
The Supreme Court, in a unanimous decision, affirmed the use
of the opinions of the subsequent treating physicians. The Court
started its analysis by noting that the exercise of any privilege
results in the withholding of probative evidence and thus is contrary
to the goal of seeking the truth.212 The Court reiterated that the
filing of a personal injury claim “extinguishes” the physicianpatient
privilege.213 In response to the plaintiffs’ arguments that
the treating physicians should only be permitted to testify as fact
witnesses regarding their examination and diagnosis of the child,
the Court noted that once a patient waives the physician-patient
privilege, “it is a waiver of the privilege in regard to all of his
knowledge.”214 Therefore, the Court held that the treating doctors
may “testify about their diagnosis and treatment . . . including their
determination of that disorder’s cause. Their testimony about the
likely and unlikely causes of [plaintiff’s] seizure disorder is factual
information, albeit in the form of opinion.”215
The Stigliano Court distinguished Graham v. Gielchinsky,216 where
defendant wanted to utilize an expert that plaintiff had already
consulted but did not intend to call at trial.217 In Graham, the Court
discussed several public policies which mandate the prohibition of
the use of an expert witness who was initially consulted by the
other side. The Stigliano Court noted that such policy issues were
not implicated in this case, and that allowing the treating doctors
to testify “will not effect either [plaintiff’s] medical treatment or
counsel’s search for experts.”218 However, Stigliano does not resolve
whether treating physicians who have also been consulted by
counsel in anticipation of litigation may be barred from rendering
harmful opinions as a result of the consultation.
The plaintiffs in Stigliano had relied on Spedick v. Murphy,219
wherein the Appellate Division set limits on the use of opinions
of treating doctors. In Spedick, an automobile negligence action,
212. Stigliano v. Connaught Labs., 140 N.J. 305, 310 (1995).
213. Stigliano v. Connaught Labs., 140 N.J. 305, 311 (1995).
214. Stigliano v. Connaught Labs., 140 N.J. 305, 312 (1995).
215. Stigliano v. Connaught Labs., 140 N.J. 305, 314 (1995).
216. Graham v. Gielchinsky, 126 N.J. 361 (1991).
217. Stigliano v. Connaught Labs., 140 N.J. 305, 313 (1995).
218. Stigliano v. Connaught Labs., 140 N.J. 305, 313 (1995).
219. Spedick v. Murphy, 266 N.J. Super. 573 (App. Div. 1993).
defendant wished to present the testimony of doctors who had
treated plaintiff, but who plaintiff did not call as witnesses. The
trial court ruled that these doctors would only be allowed to testify
as to plaintiff’s complaints, medical history, and their physical
examinations and diagnosis, but not their prognosis, stating:
Defendant, therefore, was properly permitted to
call these witnesses, not to obtain opinions about
plaintiff’s disabilities, but to testify concerning their
physical examinations and diagnosis of plaintiff
shortly after the injury. This testimony was clearly
relevant and material. To bar such testimony of
the initial treating physicians would only serve to
hinder the search for truth.220
The Stigliano Court did not clearly distinguish Spedick, merely
stating,
In sum, plaintiffs misplace their reliance on
Graham and Spedick. The treating doctors did
not examine [plaintiff] in anticipation of litigation
or in preparation for trial, but for purpose of
treatment.221
However, the Court acknowledged that in Spedick, the plaintiff
had also only consulted the doctors for treatment and had not
intended to call the doctors as witnesses. The Supreme Court
simply disregarded Spedick’s limitation on the scope of the treating
doctors’ testimony, stating:
Unlike an expert retained to testify at trial, the
treating doctors gained no confidential information
about plaintiffs’ trial strategy. Although the
treating doctors are doubtless ‘experts,’ in this
case they are more accurately fact witnesses. Their
testimony relates to their diagnosis and treatment
of the infant plaintiff. In this context, moreover, the
characterization of the treating doctors’ testimony
as ‘fact’ or ‘opinion’ creates an artificial distinction.
A determination of causation partakes of both fact
220. Spedick v. Murphy, 266 N.J. Super. 573, 592 (App. Div. 1993).
221. Stigliano v. Connaught Labs., 140 N.J. 305, 313 (1995).
and opinion. The critical point is that the treating
doctors to treat their patients must determine the
cause of the disease, whether that determination is
characterized as fact or opinion.222
Stigliano permits attorneys for both plaintiffs and defendants to
affirmatively utilize the opinions of treating physicians which are
favorable to their position. Initially, it becomes more important
than ever for the plaintiff ’s attorney to instruct treating physicians
that they may not disclose any records or discuss the plaintiff, even
informally, with any representative of the defendant without strict
compliance with the notice requirements of Stempler v. Speidell.223
Additionally, plaintiffs must be certain to move to prohibit
treating doctors from rendering the opinion that, for example,
the defendant physician did not commit malpractice. Obviously,
defendants must take advantage of all subsequent treating
physicians who harbor opinions favorable to the defendant as to
causation. Furthermore, since parties may now use opinions of
treating doctors, both parties must serve interrogatories to discover
whether any party intends to elicit from treating physicians what
Stigliano described as “factual information, albeit in the form of
opinions.”224
Admissibility of Subsequent Treating
Physician’s Reports
It is important to note, however, that the report of the subsequent
treating doctor is not admissible into evidence. In Day v. Lorenc,225
plaintiff alleged that the defendant negligently performed septum
surgery, causing her to lose her sense of smell. Plaintiff ’s expert
had asked one of the doctors who treated plaintiff after the
malpractice to send a report regarding plaintiff ’s condition. The
subsequent treating physician sent a report which stated that
although there was a temporal relationship between the surgery
and the loss of smell, the subsequent treating physician believed
that the loss of smell was due to nasal polyposis. Plaintiff ’s expert
222. Stigliano v. Connaught Labs., 140 N.J. 305, 313-14 (1995).
223. Stempler v. Speidell, 100 N.J. 368 (1985).
224. Stigliano v. Connaught Labs., 140 N.J. 305, 314 (1995).
225. Day v. Lorenc, 296 N.J. Super. 262 (App. Div. 1996).
conceded at the time of trial that he read and relied upon the report
of the subsequent treating doctor. Counsel for the defendant then
offered the subsequent treating physician’s report into evidence
based upon the fact that plaintiff ’s expert relied on it. The trial
judge admitted the report into evidence over plaintiff ’s objection.
The Appellate Division held that admission of the report was
reversible error. The court noted that although New Jersey Rules
of Evidence 703 allows an expert to rely on the report, and
although New Jersey Rules of Evidence 705 permitted defense
counsel to cross-examine the expert with the report, “neither
of these rules provides a basis for the admission of [treating
physician’s] report into evidence.”226 The Appellate Division
also held that New Jersey Rules of Evidence 803(b)(2) and (3)
do not permit the admission of the reports since plaintiff “not
only did not adopt [the treating physician’s] unsolicited opinion
but, in fact, necessarily rejected it” since it was contradictory to
the testimony of plaintiff ’s expert.227 The court therefore held
that even though the report dealt with proximate causation, the
trial was tainted and the verdict must be reversed. In significant
language, the Appellate Division noted:
As in most malpractice cases, this case boiled down
to a pitched battle between plaintiff’s expert and
defendant’s expert. Anything which could have
tipped the scales, ever so slightly, in favor of one or
the other had the capacity to change the outcome.
We simply cannot know whether the jury was
swayed by the fact that defendant effectively had
two experts on his ‘side’ while plaintiff had only
one, or by the fact one of plaintiff’s ‘own’ treating
doctor’s did not agree with her or her expert.
Because we believe that this state of affairs had
the capacity to produce an unjust result, we reverse
and remand the case for a new trial.228
226. Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996).
227. Day v. Lorenc, 296 N.J. Super. 262, 268 (App. Div. 1996).
228. Day v. Lorenc, 296 N.J. Super. 262, 269 (App. Div. 1996).
Other Issues Concerning Treating
Physician’s Testimony
Case law has addressed a myriad of other issues raised when parties
have sought to introduce testimony of a treating physician.
See, for example, Nowacki v. Community Medical Center,229
where the Appellate Division affirmed the decision of the trial
court to prohibit the defendants from utilizing portions of the
hospital record which recorded that various physicians diagnosed
the plaintiff as having pathological fractures.
In Macaluso v. Pleskin,230 the Appellate Division held that a
treating doctor may testify about the opinions of a non-testifying
doctor if the treating doctor relied on those opinions.
See also Mahoney v. Podolnick,231 holding that generally a treating
doctor should not be permitted to testify as to the standard of care.
See for example, Glowacki v. Underwood Mem’l Hosp.,232 where
a physician was permitted to testify that her diagnosis was based
in part on a conversation with a radiologist. However, the court
noted that the witness was an orthopedic surgeon who had herself
reviewed the MRI.233 In Brun v. Cardoso,234 the court held that an
MRI must be interpreted by a physician qualified to read such
films, and that the MRI report could not be “bootstrapped into
evidence” through the testimony of another doctor.235
Additionally, the Appellate Division in Alves v. Rosenberg,236
held that New Jersey Court Rule 4:16-1(d) prohibits the use of a
defendant’s own deposition when the defendant was available to
testify.
In Carchidi v. Iavicolli,237 the court held that a defendant may not
use the partner of the plaintiff’s treating physician on the issue of
causation.
229. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995).
230. Macaluso v. Pleskin, 329 N.J. Super. 346, 355-358 (App. Div. 2000).
231. Mahoney v. Podolnick, 168 N.J. 202, 228-229 (2001).
232. Glowacki v. Underwood Mem’l Hosp., 270 N.J. Super. 1 (App. Div. 1994).
233. Glowacki v. Underwood Mem’l Hosp., 270 N.J. Super. 1 (App. Div. 1994).
234. Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).
235. Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006).
236. Alves v. Rosenberg, 400 N.J. Super. 553 (App. Div. 2008).
237. Carchidi v. Iavicolli, 412 N.J. Super. 374 (App. Div. 2010).
Finally, in Kalola v. Eisenberg,238 a court held that evidence
of a defendant’s threatening phone calls to an expert witness/
subsequent treating doctor was admissible pursuant to New Jersey
Rules of Evidence 403.239
Opinions of Psychiatrists or
Mental Health Care Professionals
The medical records of mental health care professionals are
entitled to an extra measure of protection from disclosure. In
contrast to the physician-patient privilege provided by N.J.S.A.
2A:84A-22.1,240 the psychotherapist’s privilege is based on the
attorney-client privilege. See N.J.S.A. 45:14B-28 and New Jersey
Rules of Evidence 505, which provide that
communications between and among a licensed
practicing psychologist and individuals, couples,
families or groups in the course of the practice of
psychology are placed on the same basis as those
provided between attorney and client.
The caselaw instructs that the conflict between the right to
privacy regarding psychiatric records and the need to know by a
defendant in a personal injury claim is best reconciled by the court
during an in camera review of the records. In Rosegay v. Canter,241
plaintiff alleged “mental anguish, severe depression, severe anxiety
attacks, insomnia, nervousness, irritability, personality change …
and misery.”242 During her deposition, plaintiff revealed that she
had been treated by a psychologist and a psychiatrist. Defendant
moved to depose the psychologist and the psychiatrist and plaintiff
objected, claiming that any discussion with her psychotherapists is
privileged. The court held that the defendants were permitted to
take the deposition of the psychotherapists. The court first noted
that the information is relevant, and even if not admissible, can
reasonably be expected to lead to the discovery of admissible
238. Kalola v. Eisenberg, 344 N.J. Super. 198 (Law Div. 2001).
239. Kalola v. Eisenberg, 344 N.J. Super. 198, 210 (Law Div. 2001).
240. See discussions in Chapter 1, § 1-8, and §§ 9-6 and 9-7.
241. Rosegay v. Canter, 187 N.J. Super. 652 (Law Div. 1982).
242. Rosegay v. Canter, 187 N.J. Super. 652, 654 (Law Div. 1982).
evidence.243 The court also held that any privilege was waived when
plaintiff made her mental condition and status an element in the
case.244
However, in Arena v. Saphier,245 the court demonstrated an
increased sensitivity to the psychiatric records of a plaintiff. In
Arena, plaintiff alleged that the defendant negligently failed to
diagnose and treat “ectopic pregnancies resulting in the loss of her
fallopian tubes and consequent inability to conceive.”246 Plaintiff
sought damages for emotional distress and acute depression, and
defendant moved to compel production of the notes of plaintiff’s
treating psychologist. The trial court barred production of the
notes, but the Appellate Division reversed. The Appellate panel
first acknowledged that communications between a patient and
a psychologist are privileged despite the waiver of the physicianpatient
privilege found in N.J.S.A. 2A:84A-22.4. The court
explained that the psychologist-patient privilege, found at N.J.S.A.
45:14B-28, was created separately
as part of a comprehensive statutory scheme
designed to license and regulate practicing
psychologists. This legislation and the subsequent
enactment pertaining to the physician-patient
privilege are wholly distinct and cannot clearly be
read in pari materia.247
The court described the psychotherapist privilege as “coterminous
with that provided under the attorney-client privilege.”248 The
court also noted that there is a reasonable distinction between a
physician treating a disease and a psychologist treating a mental
problem:
The nature of psychotherapy might well justify a
greater degree of confidentiality and protection than
is generally afforded medical treatment of a physical
condition. The nature of the psychotherapeutic
243. Rosegay v. Canter, 187 N.J. Super. 652, 652 (Law Div. 1982).
244. Rosegay v. Canter, 187 N.J. Super. 652, 652 (Law Div. 1982).
245. Arena v. Saphier, 201 N.J. Super. 79 (App. Div. 1985).
246. Arena v. Saphier, 201 N.J. Super. 79, 81 (App. Div. 1985).
247. Arena v. Saphier, 201 N.J. Super. 79, 85 (App. Div. 1985).
248. Arena v. Saphier, 201 N.J. Super. 79, 87 (App. Div. 1985).
process is such that full disclosure to the therapist
of the patient’s most intimate emotions, fears, and
fantasies is required. The patient rightfully expects
that his personal revelations will not generally be
subject to public scrutiny or exposure.249
The Arena court concluded that
a sensible accommodation of these mutually
competing values requires pretrial disclosure of the
communications between plaintiff and her treating
psychologist to the extent that they are relevant to
her present mental and emotional condition and
its cause.250
Further, plaintiff should not be permitted merely to invoke
the privilege and make a conclusive evaluation of the notes and
records. The court therefore ordered the production of the records
for an in camera review, reasoning:
We hold that a psychologist may be compelled to
reveal relevant confidences of treatment when the
patient tenders her mental or emotional condition
in issue during the course of litigation. Under
such circumstances, the patient’s communications
to her psychotherapist should not be enshrouded
in the veil of absolute privilege. Rather, important
public policy considerations favoring liberal
pretrial discovery compel disclosure of all relevant
information. Nevertheless, we are not insensitive
to the countervailing necessity of protecting the
patient from needless humiliation, harassment and
exposure. In our view, these antithetical interests
can best be accommodated by the trial court’s
thorough in camera inspection of the consultation
notes to determine their relevance.251
249. Arena v. Saphier, 201 N.J. Super. 79, 86 (App. Div. 1985).
250. Arena v. Saphier, 201 N.J. Super. 79, 90 (App. Div. 1985).
251. Arena v. Saphier, 201 N.J. Super. 79, 81 (App. Div. 1985).
This analysis was expanded in Kinsella v. Kinsella,252 where
the Supreme Court held that New Jersey’s psychologist-patient
privilege requires that three factors be met prior to release of
psychiatric records:
(1) there must be a legitimate need for the evidence;
(2) the evidence must be relevant and material
to the issue before the court; and (3) by a fair
preponderance of the evidence, the party must
show that the information cannot be secured from
any less intrusive source.253
In enforcing the psychologist privilege in all but the most
exceptional circumstances, the Supreme Court held:
Courts should be mindful that, although New
Jersey’s psychologist-patient privilege is modeled
on the attorney-client privilege, the public policy
behind the psychologist-patient privilege is in
some respects even more compelling. Like the
attorney-client privilege, the psychologist-patient
privilege serves the functional purpose of enabling
a relationship that ultimately redounds to the good
of all parties and the public. The psychologistpatient
privilege further serves to protect an
individual’s privacy interest in communications that
will frequently be even more personal, potentially
embarrassing, and more often readily misconstrued
than those between attorney and client. Made
public and taken out of context, the disclosure of
notes from therapy sessions could have devastating
personal consequences for the patient and his
or her family, and the threat of such disclosure
could be wielded to unfairly influence settlement
negotiations or the course of litigation. Especially
in the context of matrimonial litigation, the value
of the therapist-patient relationship and of the
patient’s privacy is intertwined with one of the
252. Kinsella v. Kinsella, 150 N.J. 276 (1997).
253. Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1997).
most important concerns of the courts—the safety
and well-being of children and families. Therefore,
only in the most compelling circumstances should
the courts permit the privilege to be pierced.254
See also Correia v. Sherry,255 where the plaintiffs’ son died in a
motor vehicle accident and the plaintiffs provided the defendant
with the decedent’s academic records but would not authorize
release of the decedent’s Child Study Team records. The trial court
held that the psychologist-patient privileges set forth in N.J.S.A.
45:14B-28 and New Jersey Rules of Evidence 505 survive the death
of a person. The trial court therefore conducted an in camera
review of the Child Study Team records and concluded that the
need for confidentiality outweighed the need for disclosure.
Opinions in Medical Records
Medical experts will often rely not only on the facts recorded
in the medical records, but also on the opinions of other medical
professionals contained in those records. The extent that reliance
can be placed on such hearsay opinions depends on the nature and
the complexity of the opinion contained in the medical record. In
Lazorick v. Brown,256 the court noted:
Notwithstanding the business record exception to
the hearsay rule, Evid. R. 63(13), expert opinions
recorded in business records by a declarant who
is not available for cross-examination may be
excluded as substantive proof if the opinions
relate to diagnosis of complex medical conditions
difficult to determine or substantiate.257
The contrary view was expressed in Baldyga v. Oldman,258 where
plaintiff brought a claim alleging that the defendant negligently
prescribed tetracycline resulting in discoloration of his permanent
254. Kinsella v. Kinsella, 150 N.J. 276, 329-30 (1997).
255. Correia v. Sherry, 335 N.J. Super. 60 (Law Div. 2000).
256. Lazorick v. Brown, 195 N.J. Super. 444 (App. Div. 1984).
257. Lazorick v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984).
258. Baldyga v. Oldman, 261 N.J. Super. 259 (App. Div. 1993).
teeth. Defendant moved for summary judgment, asserting that
there was no proof that the defendant had prescribed tetracycline
to the plaintiff. In response to the motion, plaintiff supplied the
report of an expert which stated that with a reasonable degree of
dental certainty plaintiff had been prescribed tetracycline between
the ages of three and six, which was during the time period that
plaintiff was under the defendant’s care. The court noted that
an expert may rely upon hearsay evidence to confirm an opinion
which he reached by independent means.259
A more extensive analysis of the issue is found in Nowacki v.
Community Medical Center,260 where plaintiff alleged that she
broke her leg in several places when she fell while attempting to lift
herself onto a treatment table. Plaintiff’s expert, an orthopedist,
testified that the fall caused plaintiff to sustain the fractures. The
defendants contended that the fractures were pathological and
unrelated to the trauma. The trial court prohibited the defendants
from utilizing portions of the hospital record which recorded that
various physicians diagnosed the plaintiff as having pathological
fractures. The trial court also precluded the defendants’ experts
from testifying about those portions of the records. In affirming
this decision, the Appellate Division stated:
[T]he trial judge did not abuse her discretion by
excluding portions of the hospital records in
which non-testifying physicians concluded that the
fractures suffered by plaintiff from her fall were
‘pathologic’ or ‘non-traumatic’. These records
involved a complex diagnosis involving the critical
issue in dispute as opposed to an uncontested
diagnosis or insignificant issue.261
The Nowacki court distinguished Blanks v. Murphy,262 where “the
included hearsay to which plaintiff objected was a straightforward
observation of a treating physician.”263 The court also held that
even though an expert can rely on hearsay, it was appropriate for
259. Baldyga v. Oldman, 261 N.J. Super. 259, 266 (App. Div. 1993).
260. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995).
261. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 284 (App. Div. 1995).
262. Blanks v. Murphy, 268 N.J. Super. 152 (App. Div. 1993).
263. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 284 (App. Div. 1995).
the trial judge to “exclude hearsay of a complex medical condition
under N.J.R.E. 808 and prior case law.”264 The court also noted
that since defendant’s expert testified that he was able to make his
diagnosis by reviewing the X-rays, the additional value of these
hearsay statements by non-testifying physicians was marginal.
In Blanks v. Murphy,265 the court allowed the use of the opinions
found in medical records, and in Palmisano v. Pear,266 the trial court
held that certain statements of the plaintiff found in the medical
records of subsequent treating doctors were “self-serving and
unnecessary for the purpose of medical diagnosis and treatment”
and excluded the statements from evidence, and the Appellate
Division affirmed.267
In Konop v. Rosen,268 the court ruled admissible a consulting
physician’s report, distinguishing Nowacki, and observing that
the “notation at issue in this case is a factual statement, not an
opinion or complex diagnosis of a medical condition subject to
exclusion under N.J.R.E. 808.”269 In Konop, the plaintiff suffered
a perforated colon during a colonoscopy performed by defendant.
The plaintiff’s expert concluded that the patient had not been
adequately sedated. The expert’s opinion was based “exclusively
upon a notation that appeared in a consultation report prepared
by Dr. Victor S. Flores” which stated that the plaintiff’s colon was
“accidentally perforated” and that “Pt. has tics and was moving too
much at time of procedure.”270 Dr. Flores testified that he did not
recall where he obtained the information contained in his note.271
The defendant moved to bar use of the note, asserting that it
was inadmissible hearsay. The trial court granted the motion, and
granted summary judgment to defendant.272 The appellate division
reversed, relying upon New Jersey Rules of Evidence 803(c)(6),
holding that the consultation report was admissible as a business
264. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 285 (App. Div. 1995).
265. Blanks v. Murphy, 268 N.J. Super. 152 (App. Div. 1993).
266. Palmisano v. Pear, 306 N.J. Super. 395 (App. Div. 1997).
267. Palmisano v. Pear, 306 N.J. Super. 395, 399 (App. Div. 1997).
268. Konop v. Rosen, 425 N.J. Super. 391 (App. Div. 2012).
269. Konop v. Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012).
270. Konop v. Rosen, 425 N.J. Super. 391, 400 (App. Div. 2012).
271. Konop v. Rosen, 425 N.J. Super. 391, 399 (App. Div. 2012).
272. Konop v. Rosen, 425 N.J. Super. 391, 397-98 (App. Div. 2012).
record.273 The court then noted, however, that Jersey Rule of
Evidence 803(c)(6) is subject to New Jersey Rule of Evidence 808,
which provides:
Expert opinion which is included in an admissible
hearsay statement shall be excluded if the declarant
has not been produced as a witness unless the
trial judge finds that the circumstances involved
in rendering the opinion ... tend to establish its
trustworthiness.274
However, the Konop court also held that since the notation was
hearsay, and since the plaintiff offered the notation “to prove
the truth of the matter asserted,” the notation should have been
redacted from the report unless it fell within an exception to the
hearsay rule. The court rejected claims that the note was admissible
pursuant to New Jersey Rules of Evidence 803(c)(5), or New Jersey
Rules of Evidence 703.275
In this case, the only condition to admissibility
of Flores’ notation was that defendant made the
statement. There was significant circumstantial
evidence that she did. Other than plaintiff, defendant
was the only person who was present both during the
colonoscopy and at the hospital emergency room.
The information contained in the notation regarding
plaintiff’s physical condition, that she suffered from
diverticulosis, immediately preceded the contested
statement that plaintiff was ‘moving too much’
during the procedure. That plaintiff suffered from
diverticulosis reflects information peculiarly within
defendant’s knowledge, since she had just performed
the procedure. It can be inferred further from
McLean’s testimony–‘we always ask what ... the
colonoscopy [was] done for, what did they see’—that
defendant was the source of that information.276
273. Konop v. Rosen, 425 N.J. Super. 391, 404 (App. Div. 2012).
274. Konop v. Rosen, 425 N.J. Super. 391, 405 (App. Div. 2012) (quoting
New Jersey Rules
of Evidence 808).
275. Konop v. Rosen, 425 N.J. Super. 391, 405-07 (App. Div. 2012).
276. Konop v. Rosen, 425 N.J. Super. 391, 421 (App. Div. 2012).
Therefore, in reversing, the court instructed:
If the case proceeds to trial, the judge must
provide a limiting instruction that the disputed
notation may only be considered if the jury finds
by a preponderance of the evidence that defendant
made the statement. See Mays, supra, 321 N.J.
Super. at 629; Kalola, supra, 344 N.J. Super. at
209. The parties are free to address with the judge
whether a preliminary interrogatory should be
submitted to the jury since the notation provides
the only support for Solny’s opinion that defendant
deviated from accepted medical standards.277
See also Macaluso v. Pleskin,278 which held that a treating doctor
may testify about the opinions of a non-testifying doctor if the
treating doctor relied on those opinions.
See also Brun v. Cardoso,279 where the court held that an MRI
may be interpreted by a physician qualified to read such films, and
that the MRI report could not be “bootstrapped into evidence”
through the testimony of another doctor.
We have held that before introducing complex
medical reports pursuant to N.J.R.E. 803(c)(6), the
ability of the opposing side to cross-examine the
author of such a report must be assured. Nowacki v.
Cmty. Med. Ctr., 279 N.J. Super. 276, 282-83 (App.
Div.), certif. denied, 141 N.J. 95 (1995). In Nowacki,
we held that it is ‘clearly established that medical
opinions in hospital records should not be admitted
under the business records exception where the
opponent will be deprived of an opportunity to
cross-examine the declarant on a critical issue
277. Konop v. Rosen, 425 N.J. Super. 391, 422 (App. Div. 2012); see also
McLean v. Liberty
Health Sys., 430 N.J. Super. 156 (App. Div. 2013) (holding that the trial
court correctly
granted an application for redaction of portions of medical records) (citing
Nowacki v.
Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div. 1995); Agha v. Feiner, 198
N.J. 50, 63
(2009)).
278. Macaluso v. Pleskin, 329 N.J. Super. 346, 355-358 (App. Div. 2000).
279. Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).
such as the basis for the diagnosis or cause of the
condition in question.’ Ibid.280
Medical Examiner’s/Autopsy
Reports
The report of a medical examiner is admissible as evidence
pursuant to N.J.S.A. 52:17B-92, which provides in relevant part
that the records of the office of the State Medical Examiner shall
be received as competent evidence of the matters and facts therein
contained in any court in this State. This statute was relied upon
in Pearson v. St. Paul,281 where the court held that the opinions
contained in the medical examiners report are admissible in evidence.
In Pearson, plaintiff’s 16-year-old daughter died after undergoing
arthroscopic knee surgery. The procedure had been performed
under general anesthesia administered by a nurse anesthetist. After
the procedure, the child was brought to the recovery room where
she went into cardiac arrest. The child suffered severe brain damage
and died after being in a coma for five days. Because the medical
examiner was not satisfied regarding the cause of death, he hired
a board-certified anesthesiologist to review all of the records and
information. The anesthesiologist stated “it appears that in the 10
or 15 minutes that the patient was in the recovery room, the watchful
eye was not focused on the patient as much as it should have been,
and therefore, allowed the arrest to have been longer than it appears
on paper to have caused this kind of damage in a well 16 year old
female.”282 The medical examiner’s expert also concluded that the
patient received a considerable amount of respiratory depressant
which was not properly neutralized, plus a muscle relaxant which
also was not properly neutralized.283
The trial court excluded from evidence the report of the
anesthesiologist retained by the medical examiner, Dr. Shapiro.
The Appellate Division reversed, holding that “any defect in
the prima facie case would have been cured by the report of an
280. Brun v. Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006); see also
Agha v. Feiner,
198 N.J. 50 (2009); Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).
281. Pearson v. St. Paul, 220 N.J. Super. 110 (App. Div. 1987).
282. Pearson v. St. Paul, 220 N.J. Super. 110, 117 (App. Div. 1987).
283. Pearson v. St. Paul, 220 N.J. Super. 110, 118 (App. Div. 1987).
anesthesiologist hired by the medical examiner.”284 The court
explained that the report of the anesthesiologist retained by the
medical examiner was admissible pursuant to N.J.S.A. 52:17B92, which provides that the records of the medical examiner shall
be admissible as evidence in any court of the state. The court
reasoned:
Dr. Shapiro’s report was not prepared for litigation.
It was solicited by the medical examiner’s office
and relied upon by that office in certifying to the
cause of death. Dr. Shapiro’s opinions respecting
the cause of death were medical rather than nonmedical,
opinions based on medical facts. We are
satisfied that it was therefore as much a part of the
admissible record under that statute as any other
part of the medical examiner’s file.285
A similar issue was addressed in Gaido v. Weiser,286 where
plaintiff alleged that the defendant negligently failed to prevent
her husband from committing suicide. Plaintiff ’s husband had a
history of depression and attempted suicide, and therefore had
been hospitalized. After discharge, plaintiff ’s husband came
under the care of the defendant. Plaintiff ’s husband experienced
severe anxiety attacks and depression after his discharge from
the hospital, and he and his wife called the defendant on several
occasions but was not seen by the defendant. The body of plaintiff ’s
husband was found six days after his discharge from the hospital.
The decedent, despite not being a drinker, was found to have a
blood alcohol level of .23. The medical examiner concluded that
the plaintiff ’s husband had drowned in an “accident,” as opposed
to committing suicide. The jury found that the defendant was
negligent but that his negligence was not a proximate cause of the
decedent’s death.
On appeal, plaintiff contended that the medical examiner was
only a fact witness and that it was improper to allow the medical
examiner’s opinions to be elicited by counsel for the defendant.
284. Pearson v. St. Paul, 220 N.J. Super. 110, 117 (App. Div. 1987).
285. Pearson v. St. Paul, 220 N.J. Super. 110, 118-19 (App. Div. 1987).
286. Gaido v. Weiser, 227 N.J. Super. 175 (App. Div. 1988), aff’d, 115 N.J.
310 (1989).
The Gaido court noted that under Biro v. Prudential Insurance Co.
of America,287 the defendant would not have been able to introduce
the death certificate with the opinion.288 This was in conformance
with N.J.S.A. 2A:82-12 (repealed January 6, 2000), which
permitted the introduction into evidence of the death certificate
for the “facts therein stated.” However, the Gaido court held that
plaintiff opened the door to this testimony, and the trial court
exercised appropriate discretion in admitting the death certificate
into evidence.289
See also, Ausley v. County of Middlesex,290 where the plaintiff
sought the release of laboratory specimens taken in connection with
the autopsy of her sister. The husband of the decedent objected.
Although the autopsy performed by the county medical examiner
revealed no evidence of any improper treatment or misconduct,
plaintiff retained a pathologist and sought access to the specimens
taken during the autopsy. The county medical examiner refused to
produce the specimens. The court observed that,
medical specimens taken from a body during
an autopsy are not included in the definition of
‘government records’ under OPRA, N.J.S.A.
47:1A-1.1, except, among other situations, ‘for
the use as a court of this State permits, by order
after good cause has been shown’ upon application
made on notice to the county prosecutor.291
The court reviewed the relevant statute and regulations and held
that the
regulations plainly confer standing upon a member
of the deceased’s immediate family. Hence plaintiff,
as the decedent’s sister, had standing to apply for
permission to examine the specimens.292
287. Biro v. Prudential Ins. Co. of Am., 57 N.J. 204 (1970), rev’g on dissent 110
N.J. Super.
391, 402 (App. Div. 1970).
288. Gaido v. Weiser, 227 N.J. Super. 175, 188 (App. Div. 1988), aff’d, 115
N.J. 310 (1989).
289. Gaido v. Weiser, 227 N.J. Super. 175, 189 (App. Div. 1988), aff’d, 115
N.J. 310 (1989).
290. Ausley v. Cnty. of Middlesex, 396 N.J. Super. 45 (App. Div. 2007).
291. Ausley v. Cnty. of Middlesex, 396 N.J. Super. 45, 49-50 (App. Div. 2007).
292. Ausley v. Cnty. of Middlesex, 396 N.J. Super. 45, 50 (App. Div. 2007).
See also N.J.S.A. 52:17B-86, which requires an investigation of
certain types of deaths, including
Violent deaths, … Deaths not caused by
readily recognizable disease, disability or
infirmity … Deaths under suspicious or unusual
circumstances … Deaths within 24 hours after
admission to a hospital or institution.
See also, N.J.S.A. 52:17B-87, Notification of county medical
examiner and prosecutor, and N.J.S.A. 52:17B-88, Findings;
report; autopsy; conclusions; copy to closest surviving relative;
transportation of body.
See also, N.J.A.C. 8:43G-25.3, Post Mortem Patient Services,
which provides that
“[t]he medical staff shall attempt to secure autopsies in cases
of unusual deaths, deaths from unknown causes, and cases of
medicolegal and educational interest, unless otherwise provided
for by law.” That section also states that “[t]he hospital shall notify
the county medical examiner or prosecutor immediately upon a
patient’s death when the circumstances of the death fall within
the criteria specified in N.J.S.A. 52:17B-86 of the State Medical
Examiners Act, N.J.S.A. 52:17B-78 et seq.”
See also, N.J.S.A. 47:1A-1.1 which permits disclosure of autopsy
photographs “[f]or the use as a Court of this State permits, by
order after good cause has been shown.”
Records and Reports of Board of
Health , Board of Medical Examiners
The New Jersey Department of Health, P.O. Box 367, Trenton,
New Jersey 08625, investigates complaints against health care
facilities. The Department of Health maintains a complaint hotline
at 1-800-792-9770. The New Jersey Board of Medical Examiners,
Box 183, Trenton, NJ 08625-0183, investigates complaints against
physicians. Complaints can be filed at http://www.state.nj.us/lps/
ca/bme/. These agencies will issue reports and sometimes order
that corrective action be taken where appropriate. In certain
circumstances portions of the reports of these agencies may be
evidential in cases against the health care provider.
In Delgaudio v. Rodriguera,293 plaintiff alleged that the
defendant prescribed a medication which had the side effect
of destruction of red blood cells. Plaintiff claimed that he told
the doctor during an office visit that he saw blood in his urine,
which would have been a symptom of this side effect. Defendant,
noting the absence of such a complaint in his office chart, denied
being advised of this complaint. All of the experts agreed that if
plaintiff complained of blood in his urine then the defendant was
obligated to discontinue the medication. Plaintiff obtained certain
portions of the records of the Board of Medical Examiners, which
had held license suspension and revocation proceedings against
defendant. The trial court precluded plaintiff from utilizing this
information and the jury returned a verdict for the defendant.
The Appellate Division reversed, stating that the information was
admissible for impeachment of the defendant’s credibility. The
court concluded:
Here, the Board expressly opined that defendant
was not truthful and, more to the point, not truthful
within the context of his record-keeping. We think
that opinion is expressed in the portions of its two
decisions which we have isolated. Those portions
may be used to impeach defendant, albeit the
underlying incidents that form the basis therefor
may not be.
Again, we caution that this is not bad conduct,
habit or custom, or skill or care evidence and
we reject plaintiff’s contentions in connection
therewith. The underlying instances of misconduct
or the fact of a suspension and revocation are
likewise not admissible.294
However, the court warned:
We emphasize, however, that our ruling is quite
narrow in scope. It is limited to very specific
portions of the Board’s decisions and limited to
the use of those portions only as extrinsic evidence
293. Delgaudio v. Rodriguera, 280 N.J. Super. 135 (App. Div. 1995).
294. Delgaudio v. Rodriguera, 280 N.J. Super. 135, 144 (App. Div. 1995).
of impeachment pursuant to N.J.R.E. 607 and 608
and not as substantive evidence. As such, its use
requires an accompanying jury instruction as to
its limited consideration which, we would think,
should be given by the trial judge, at the least,
upon its initial use and again in the jury charge
at the end of the case. Moreover, because there
are only small portions of the Board’s decisions
that can be used by counsel in examining the
witnesses, the Board’s decisions, or any other part
of the administrative record, which should of
course be marked for identification, should not
be independently admitted into evidence. Rather,
counsel should incorporate the critical portions in
appropriate questions. We leave it to trial counsel
to formulate such questions, but any reference to
the Board’s decisions must be limited to what we
herein set forth. We hasten, however, to add that
our ruling is based upon the record as it has been
presented to us and limited to our consideration
of plaintiff’s examination of defendant and
defendant’s liability experts. Our ruling should not
be read to limit further use of the Board’s decisions
or the relevant underlying findings in the event
defense counsel, through his or her own questions,
opens the proverbial door.295