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.

Before Litigation

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. 8:43G-4.1(a)(25).

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 patient’s care.

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.

Potted Plants

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 (1997):

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 resulting therefrom.

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 growth.

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.

Trial

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 specific case.

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 started.

Copyright 1997 New Jersey Law Journal. Reprinted with permission.