By Lee S. Goldsmith
The author, an attorney and medical doctor, is a partner with Goldsmith Ctorides & Rodriguez
in Englewood Cliffs.
Case selection in the professional negligence area is crucial. Physicians will often
have the right to consent to any potential settlement. Therefore, no matter how clear a
case may appear from the onset there is always the potential that the case will have to be
tried. With this fact in mind the factors of clarity of liability and causation, prior
medical conditions, the nature and permanency of the injury and litigation costs all play
prominent roles in the selection process.
Current cases, rules changes and statutes have not affected the initial process but do
affect the management of that case once taken under consideration. In addition, changes in
federal Law may well have an effect on cases either settled or taken to verdict.
The first step will always be the contact by the potential client with the initial
interview following shortly thereafter. The purposes will be to identify the potential
defendants and identify the records that will have to be obtained if, the initial
information and impression warrants that these steps should be taken. Records can and
should be obtained from each relevant provider and institution. The records in a
physician’s possession must be provided within a period of 30 days upon the receipt
of the patient’s signed authorization pursuant to N.J.A.C. 13:35-6.5. Hospitals must
provide records pursuant to the provisions and monetary limits of the N.J.A.C.
When obtaining the records one usually hopes that they are complete but in fact there
are usually additional records that must be requested and obtained. A request for a
physician's records of a patient should not be limited to the records associated with his
or her treatment but should include billing records, office phone logs, intake card files,
correspondence with other physicians, laboratory findings, etc. When requesting hospital
records, intra-hospital request forms are not provided, fetal monitor strips may not be
included and most certainly billing records and log books containing relevant information
are often simply not provided. Appropriate follow-ups, Notices to Produce and motions
ultimately may be necessary. Frequently, it takes months for complete records to be
compiled and for the record room to deem the record completed.
There is a requirement that operative reports be dictated within 24 hours of a surgery
and discharge summaries be dictated within 30 days of a patient's discharge. These
regulations will be part of the Rules, Regulations and By-Laws of the Medical Staff of the
particular hospital. Any attempt to get a record before these documents are completed will
produce either a record stamped "Incomplete" or a delay until such time that all
documents are made part of the record. Therefore, while the attorney will want all
relevant information it is often not obtained without a considerable and unnecessary delay
or until after litigation is commenced. When a record is not completed in a timely
fashion, there is usually a reason and that reason may be associated with the
The case of In re Petition of Woodrow Hall, 147 N.J.379, has interest in the
context of the affidavit of merit requirement. See N.J.S.A. 2A:53A-26 to -29 [See also,
related article page X]. Here counsel attempted to obtain pre-suit depositions of the
knowledgeable individuals and medical personnel. The facts as reported all occurred within
the operating room of the hospital with the patient being unconscious at the time and
there being no relatives in attendance.
Typically, during the course of surgery there will be many medical personnel in
attendance. Usually only the anesthesiologist will be making contemporaneous notes and
those notes will relate to his/her professional duties and activities. The surgeon may
make a handwritten note after the surgery but may not dictate an operative note for weeks
or months. The assistant surgeon rarely will make any notations. Among the nursing staff
present the scrub or the instrument nurse will usually make no notations while the
circulating nurse may or may not record any intraoperative contemporaneous information. If
any other individuals are present they usually will not include any notes in the patient's
record or even be identified in the record.
Therefore, it is not unusual to see evidence of an intraoperative problem without any
relevant information associated with the event being noted. Generally, there will be no
explanation as to the reasons for the event to have occurred.
In Woodrow Hall the incident was a cardiac arrest during the course of surgery.
Such an event can occur with or without negligence. The Court denied the use of pre-suit
discovery in order to obtain information to complete an affidavit of merit. However, at
the same time the Court did not preclude its use in the exceptional circumstance. Given
the facts of Woodrow Hall, the exceptional case will, in all probability, be a
rarity. As a result, plaintiffs' attorneys will have to be resourceful in obtaining the
information necessary for the physician to supply an appropriate affidavit of merit.
Once Litigation Is Instituted
There have been three changes that have occurred that have had and will have a
continuing effect on current malpractice litigation practices. The first, which has
received a great deal of discussion is Circle Chevrolet. [See related article, page
X.] If it is necessary to bring all parties into one suit, then the affidavit of merit
requirements may become a significant burden.
Usually in malpractice litigation the sued defendants will try to develop a unified
defense that includes all of the defendants involved. However, if one physician involved
in the medical scenario is not included in the litigation then it is common to find that
the named defendants will construct a defense pointing to the potential liability of the
unnamed physician, provided the statute of limitations has already expired. If the
physician providing the affidavit of merit does not include either by name or inference
all of the potential physicians, then it may be difficult to include and hold in all
defendants named. Since there will be no discovery until after litigation has been
commenced it may be difficult to have the defendants define their positions early enough
in the litigation so that the empty chair defense is averted.
On the other hand, two rule changes are advantageous in expediting litigation and
insuring that the appropriate information is elicited. The rule limiting interrogatories
to a Uniform set are very good for both sides. The items are all inclusive and permit
sufficient information to discover other relevant information.
The physician is required to provide a copy of his/her curriculum vitae. This document
will provide a wide variety of information and you may wish to obtain documents relevant
to the C.V. A physician is expected to maintain a file of continuing medical education
credits obtained. If the physician does not keep the file then it will be maintained for
the physician by the hospital staff or a local medical association. A complete list of the
continuing medical education materials should be procured and, when relevant, the course
materials of particular programs.
Portions of personal files can be obtained from hospitals, when relevant, and some
National Practitioner Data bank records can be requested. The personal files from the
hospitals can provide information regarding privileges, and from this information it can
be determined whether surgeons are performing procedures for which they have no
credentials or privileges.
The National Practitioner Data Bank will contain information regarding reported
malpractice cases and professional problems. In addition there is a national net site
listing adverse information relating to physicians. The newly organized American Medical
Association net site will not contain available negative information as currently
functioning. Regardless of whether one is representing plaintiff or defendant the
interrogatories should be used and carefully examined to make sure that all of the
information is supplied.
The other rule change is 4:14-3(c). Titled "Objections" this provision has
been referred to as the "Potted Plant Rule" by many attorneys. The clear purpose
of the rule is to enable the properly prepared attorney to take a complete and thorough
deposition without interference and coaching. It is often surprising to find that the
defense attorney knows more of the medicine in the particular case than the physician
defendant. One still may see objections "to form" being used to alert the
physician and "kicking under the table" occurs, but the rule is a marked
improvement and clearly should be used to the fullest advantage.
Before taking the deposition of a defendant or an expert it is incumbent upon the
plaintiff's attorney to have as much of the relevant medical information at hand as is
possible. The first source of information is the patient's medical records. These would
include the hospital and physician’s office records. Various forms of analysis are
used but what may be one of the most constructive is rebuilding the records to define what
has occurred in a particular case on either a day by day or minute by minute basis,
depending on the type of case one is dealing with. In this respect one would be able to
identify all who were involved in the delivery of care, their respective roles, their
degree of involvement and the individuals with whom they interacted. To this information
would be added the information obtained from the curriculum vitae and then the information
from the medical literature. Combining the sources of information with the intelligent
input of the expert allows for a focused and detailed examination of the defendant without
distraction and interference.
A recurring problem for plaintiffs is the manner in which expert reports are prepared
and the requirement that there be no "net-opinion." This can occur either in the
report prepared by the expert, the deposition given by the expert or the testimony given
at trial. This problem was revisited in Nguyen v Tama et al. 298 N.J. Super. 41
The "net opinion" rule appears to be a mere restatement of the
established rule that an expert's bare conclusions, unsupported by factual evidence is
inadmissible. It frequently focuses on the failure of the expert to explain a causal
connection between the act or incident complained of and the injury or damage allegedly
To avoid the "net opinion" problem, the development of the case requires the
step-by-step assembly of materials for the experts to review, analyze and ultimately
prepare a report to be used as a basis for subsequent testimony. In many cases more than
one expert will be used -- one on liability and one on causation. Under these
circumstances the reports and testimony have to dovetail.
A clear example of the problem is seen in the management of the case in which there is
the failure to promptly diagnose cancer, which leads to a deterioration in the patient's
condition and loss of a chance for survival. In the case of breast cancer the first
witness may be the radiologist who has reviewed the mammograms. The radiologist would be
able to testify that if the mass was seen in the initial reading and should have been
seen, that a diagnosis of cancer would have been made and that based on that diagnosis the
patient would have had treatment available. The radiologist can identify the lesion and
explain why it should have been identified.
The second expert has to make a determination as to the stage of cancer had the
diagnosis been made when the first expert indicated the diagnosis should have been made.
Multiple factors will enter into this discussion. The length of time between the initial
mammogram when the cancer was missed and the second mammogram when the diagnosis was made,
the change in the size of the tumor, the number of lymph nodes found to be affected at the
time of the diagnosis and finally the type of cancer that is found to be present. The
greater the length of time the greater the likelihood that the stage of the cancer will
advance, which will decrease the chance that the individual will survive that cancer. This
information will correlate with the node involvement and tumor size. However, the type of
cancer can skew all of the information as some cancers are more likely to advance more
rapidly than others and the patient’s outcome will not be affected by time or tumor
The statistical information for cancers such as breast cancer is readily available and
experts can testify with a great deal of authority. The net opinion rule, though at times
apparently onerous, is really an asset to plaintiff’s counsel. Ultimately, the expert
will have to testify that the delay in the diagnosis adversely affected the plaintiff. By
forcing the plaintiff to pin down the expert early in the litigation process a
determination can be made as to whether or not the expert evidence will be present for a
compelling viable case. A causal relationship would be defined and a net opinion averted.
The State Board of Medical Examiners and the Department of Health regularly review the
practices associated with the delivery of health care. While we will check the case law
for changes, we usually do not avail ourselves of the regulatory changes that will affect
the standards within which the parties have to function. The State Board of Medical
Examiners recently proposed rules setting Surgical and Anesthesia Standards in Physician
Offices. N.J.A.C. 13;35-4.3 through 4.20. Considering the amount of anesthesia being
provided outside of hospitals and licensed surgicenters it was deemed that such rules were
necessary. Review of the administrative regulations is often helpful in particular cases.
The doctrine of res ipsa loquitur was also revisited during this past year in Kelly
v. Berlin, et al, 300 N.J. Super 256, (App. Div. 1997). The theory of res ipsa
loquitur is tantalizing to the plaintiff's attorney who is presented with a situation that
is so "clear" that there should be no question as to how a jury would decide.
However, if the facts are so clear then there should be no problem with finding an expert
who would agree that there has been a deviation from the accepted standards of care. An
expert's opinion is far better than the chance acceptance of the res ipsa doctrine in a
Obviously the clearest of cases would be those in which a sponge or clamp was left in
during the course of an operation. However, even in those cases the question will be
raised as to which individual was at fault. Considering the number of people who may have
had their hands in the patient's abdomen or the problems that presented themselves during
the surgery, an argument might be made that leaving the sponge was not negligent. There
are hundreds of trial judges in New Jersey and there is no hard rule as to the res ipsa
argument. It would be best to have an expert in every medical malpractice case otherwise
you are relying on a judge to accept your argument and as seen in Kelly the
argument was unsuccessful.
Closure, Settlement or Verdict
Settling a case is not as simple as the parties agreeing on a figure and sending signed
releases, receiving a check and depositing that check into the trust account.
Attorneys are used to the fact that when dealing with an estate there has to be an
administrator ad prosequendum appointed and that the distribution may require approval of
the Court. We are all used to preparing the papers for a "friendly" and making
an application for the appropriate fee. However, recently U.S. Healthcare and some other
carriers are attacking the collateral source rule. [See related article, page XX.]
Recently Metropolitan Insurance Company and Lucent Technologies, Inc moved to intervene
"to protect their subrogation rights against plaintiffs and defendants." Berry
v. St. Peter's Hospital of The City of Albany (N.Y.L.J., June 17, 1997). Both
companies had spent in excess of $1.7 million in providing healthcare and there was the
concern that their interests would not be addressed during the course of the litigation.
New York does have a "collateral source" rule but that rule is to prevent
unjust enrichment for the plaintiff, not as indicated here, to deprive an interested party
from receiving appropriate reimbursement. HMO contracts now often have such a clause so
that if there is any recovery for medical expenses that they would have a right to those
funds for the purposes of reimbursement. The question is whether they will become
proactive and enter into litigation to recover medical expenses when the outlay or the
potential outlay is in the millions of dollars. We are currently obligated to reimburse
Medicaid regardless of whether or not there is a recovery for medical expenses in a
settlement. In addition we have to be aware of any Workers' Compensation liens.
Federal law is now making taxable some funds obtained through settlement of trial.
Punitive damages awarded are taxable. O'Gilvie v. United States 117 S.Ct. 452
(1966). Recent statutes have broadened the taxability of awards. In 26 U.S.C. Sect. 14 the
taxability of awards has been expanded to include all funds awarded that do not arise from
a physical injury. That is, if there is an emotional injury without a physical injury, the
sum received is taxable. The key is connecting a physical injury to the individual to the
sum collected to avoid taxation.
Current changes are affecting how the individual case is
to be managed. One can only expect that there will be additional
modifications and additional materials to be accessed for each case as it is
Copyright 1997 New Jersey Law
Journal. Reprinted with permission.