Category: Medical Malpractice

Recognized Complications of Treatment and Informed Consent – An Update

In a December 18, 2018 posting in this blog, the recent oral argument before the Pennsylvania Supreme Court in the case of Mitchell v. Shikora regarding exclusion of evidence of risks and complications of a surgical procedure was highlighted.  On June 18, 2019, a divided Pennsylvania Supreme Court filed its decision, 2019 WL 2504475, reversing the decision of the intermediate appellate Superior Court[1] which would exclude such evidence and reinstating the judgment entered on the jury verdict in favor of the defendant. The opinion helpfully illustrates how risk information can be presented at trial in support of a defense that the adverse outcome was a known complication of the procedure and not the result of negligence.

            The factual context of the case arose from a laparoscopic hysterectomy performed in 2016.  The operation began with the physician making an incision into the patient’s abdomen.  In the course of proceeding to separate the layers of tissue, the attending obstetrician-gynecologist detected fecal odor and realized the woman’s colon had been cut.  He discontinued the hysterectomy procedure and called for a general surgeon to evaluate the patient and promptly perform an operation to repair the bowel injury.  This was done with an emergency loop ileostomy during which a portion of the patient’s bowel was brought to the surface and connected to an external pouch.  The patient wore the colostomy bag for an unspecified time.

            In the opinion for the court, Justice Todd reiterated fundamental components of medical liability law.  She noted that ordinarily, a physician did not guarantee the result of treatment and that there was no presumption or inference of negligence merely because a medical procedure resulted in an unfortunate or adverse outcome.  “Indeed, the idea that complications may arise through no negligence of a physician is so ingrained in our jurisprudence that it is often included as part of the instructions to the jury.”  She emphasized, however, that an action for lack of informed consent as to possible risks and outcomes was distinct from a claim of medical negligence.  The justice emphasized a proposition that is widely accepted and had been adopted in the unanimous prior decision of Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), that admitting evidence that a patient had been informed of certain risks in a pure negligence action could erroneously suggest to the jury that the patient consented to negligent care and could confuse the jury and cause it to stray from assessing the central question of whether the physician’s actions conformed to the applicable standard of care.  Nonetheless, evidence of risks and complications was properly admitted elucidating the standard of care issues.

Determining what constitutes the standard of care is complicated, involving considerations of anatomy and medical procedures, and attention to a procedure’s risks and benefits. Further, a range of conduct may fall within the standard of care. While evidence that a specific injury is a known risk or complication does not definitively establish or disprove negligence, it is axiomatic that complications may arise even in the absence of negligence. We emphasize that “[t]he art of healing frequently calls for a balancing of risks and dangers to a patient. Consequently, if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the institution or agency actually seeking to assist the patient.” …. As a result, risks and complications evidence may clarify the applicable standard of care, and may be essential to provide, in this area, a complete picture of that standard, as well as whether such standard was breached. Stated another way, risks and complications evidence may assist the jury in determining whether the harm suffered was more or less likely to be the result of negligence. Therefore, it may aid the jury in determining both the standard of care and whether the physician’s conduct deviated from the standard of care.

The court concluded that the testimony of the defense expert went beyond the specific injury and included the conduct of the physician and the circumstances surrounding that conduct to allow an evaluation of whether the defendant had met the standard of care and the reasons why the injury could occur in the absence of negligence.  This testimony provides a fine example of an expert providing the “whys and wherefores” that New Jersey courts have so frequently identified as essential to sustain expert testimony against a charge of being an inadmissible net opinion.[2]  It quoted this testimony at some length:

I think that really the only place in this case where one can find fault is in the initial incision into the abdomen, and during that incision is the one time during the surgery — I think you have seen pictures of how narrow a site you are going down — it is the one time in the surgery when you are making an incision into a space where you can’t really see where you are going.

You know, you are cutting through tissue that occasionally you can see through it, but very often you can’t see through it at all. Everybody is very different. Most of the time, especially going through a little incision, the more fat, the deeper the longer that incision is. That initial incision, I’ve done over 8,000 case[s] and every time I make that incision, I hold my breath[ ] because you never know 100 percent that that is going to be okay. I feel much better once you are inside and seeing, but that initial incision is when you can’t be sure.

The benefit of doing it that way is that the patient will recover faster, have less pain, sort of both the surgeons and patients are happy to take that risk because it is going to benefit them in the long run; but there is going to be those times where that incision is going to cause a problem like in this case.

Half the time that doesn’t work, half the time you just have to make sure you are pulling up the thinnest amount of tissue you possibly can after you make that cut and you are hoping that there isn’t anything on the other side.

I mean there’s always something behind the peritoneum there. There’s not like there is free space. There’s not gas in your abdomen naturally. There’s always bowel, there’s always something right on the other side of that, whether it is large intestine or small intestine. It is always an incision where there can be injury.

            It also noted this exchange during cross-examination:

Q. [Mitchell’s Counsel] I see. And, doctor, as far as the literature is concerned — well, strike that. I think you had indicated in your report that the injury that Miss Mitchell sustained was unavoidable. That’s what you said?

A. Correct.

Q. If it was unavoidable it would happen every time, wouldn’t it?

A. No.

Q. Well, I don’t understand if it is unavoidable, wouldn’t it happen every time?

A. Not necessarily. It is unavoidable in the sense that he did everything he could to avoid it, yet it still happened, so, therefore, it was unavoidable.

            In contrast, in her concurring and dissenting opinion, Justice Donohue had a different perception of this evidence: “Informing the jury that a particular injury is one that can occur during the procedure does not make it more or less likely that the injury occurred as a result of the doctor’s negligence, rendering it entirely irrelevant.”  She also emphasized that the plaintiff’s expert had identified “a crucial step” of transvisualization of the abdomen before making the cut that had not been done by the defendant.  While the defense expert acknowledged that there was no evidence that the operating surgeons had transvisualized the peritoneum before making the cut, he denied that this step was required by the standard of care.  Justice Donohue distilled the defense expert’s testimony to the following: if transvisualization is not possible (or simply not done), proceed with caution and hope for the best.  She framed the issue for the jury as whether transvisualization was required by the standard of care or not. “If so, the failure to do so was negligent; if not, it was not. These questions should have been decided exclusively on this evidence of what was expected of the surgeon in this case.”  

            There was another separate opinion in Mitchell with Justice Wechtconcurring in the result but highlighting four areas of concern.  These included an emphasis on the “imperative that judges carefully police the line between evidence of consent and evidence of risks and complications” and the exclusion of any possible use of the informed consent form that had been signed by the patient even if limited to reading the possible complications set forth in it.  He also noted that studies or literature should not be admissible “if they do not distinguish between complications that occurred as a result of negligence and those that resulted from some other cause.”  He agreed with the majority’s conclusion that this objection went to the weight rather than the admissibility of this evidence and that the parties should have the opportunity to challenge the studies in a Frye hearing.[3]    He ended with his opinion commenting on the inclusion in one submission of a report that had labeled Philadelphia as “The City of Unbrotherly Torts” and putting that city and its courts on a list of “Judicial Hellholes.”  In an admonition to those filing amicus brief, he wrote:

While amici, like parties, are free (and indeed duty-bound) to engage in zealous advocacy, it seems imprudent to rely for such advocacy upon unduly caustic or inflammatory materials that insult or cast aspersions upon the judicial system itself, or upon its component parts. Those filing briefs as friends of the court should consider this as they engage in their important work of informing and enriching the perspectives available to appellate jurists as the latter perform their jurisprudential duties.


[1]  In the blog piece, the citation for the intermediate opinion was stated incorrectly.  The correct citation is 161 A.3d 970 (Pa. Super. 2017).

[2]  The “why and wherefore” or “whys and wherefores” epigram can be found repeatedly in published and unpublished opinions.  However, the more expressive catchphrase would be the “why and therefore” for communicating the basis for the expert’s conclusion.

[3]  Pennsylvania has declined to adopt the standards for expert testimony developed in Daubert v. Merrill Dow and adheres to the test promulgated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Betz v. Pneumo Abex, LLC, 44 A.3d 27, 53 (Pa. 2012).

Recognized Complications of Treatment and Informed Consent Evidence

It is axiomatic that negligence ordinarily will not be presumed from the occurrence of injury, but must be proven and with the burden in this regard being on the plaintiff. The standard jury charge for medical malpractice cases in New Jersey continues to reflect long-standing case law: “The law recognizes that the practice of medicine is not an exact science. Therefore, the practice of medicine according to accepted medical standards may not prevent a poor or unanticipated result.” Model Civil Jury Charges 5.50A. See, e.g., Schueler v. Strelinger, 43 N.J. 330, 346 (1964).  The poor outcome may be the result of a deviation from accepted standards of care – negligence in its most basic sense.  But when the physician has not disclosed the potential for an adverse event or complication, the doctrine of informed consent can be invoked.  Informed consent is considered a form of medical negligence. Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div. 1999).  New Jersey permits pleadings with alternative and inconsistent theories. R.4:5-6. In many instances, both theories are pursued.  But in some cases involving a treatment complication, no claim for lack of informed consent is advanced.

This has led to a substantial body of case law that holds, in broad terms, that in the absence of a claim for lack of informed consent, evidence of disclosure of risks to the plaintiff patient is irrelevant and should be excluded.  With the decision in Ehrlich v. Sorokin, 451 N.J. Super. 119 (App. Div. 2017), New Jersey joined what has become the majority view.  This was reiterated in a more recent New Jersey decision that was not approved for publication and as to which the Supreme Court denied certification on January 23, 2018. Granovsky v. Chagares, 2017 WL 3480771, 2017 N.J. Super. Unpub. LEXIS 2074 (App. Div. Aug. 15, 2017), certif. denied, 232 N.J. 85 (2018).

The patient in Ehrlich, experiencing back pain and rectal bleeding, had undergone a diagnostic colonoscopy procedure by Dr. Sorokin in 2003 that identified the presence of a polyp in her colon. The patient declined a recommendation for surgery and elected to undergo removal with a colonoscope.  This was done by a different gastroenterologist who referred the patient back to Dr. Sorokin for follow-up monitoring and surveillance of her GI status.  Several procedures were done by Dr. Sorokin for recurrent polyps using different techniques.  Following one of these procedures in which an electric charge was used to vaporize the polyp, the patient was found to have a perforation of her colon and peritonitis.  She underwent surgery to remove a portion of her colon.

Plaintiff intended to proceed at trial only on the assertion of a deviation from accepted standards of care in the manner in which the defendant gastroenterologist had performed this particular procedure.  Plaintiff’s counsel moved in limine to exclude informed consent evidence.  The motion was denied.  The patient was cross-examined with the signed consent form that stated that the procedure could result in injury with perforation and hospitalization for further care.  The jury returned a verdict that the defendant did not breach the standard of care.

In reversing, the Appellate Division found that in the absence of an allegation of lack of informed consent, the information concerning risk disclosure was irrelevant and prejudicial.  Drawing on the analysis developed in various out-of-state cases, the court indicated that a jury’s knowledge of a treatment’s risks, where lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver of liability for negligence, which is plainly wrong. A patient does not consent to being treated negligently.  Similarly, in Granovsky, the surgeon did an operation to remove the patient’s gallbladder through a laparoscopic cholecystectomy procedure.  In the course of the operation, the common bile duct was cut.  The defense experts stated that common bile duct injuries were known complications of this type of surgery that occur in the absence of negligence.  The defendant also introduced and relied on the signed surgical consent which made reference to possible injury to the common bile duct requiring surgical repair.  The Appellate Division reversed.  It followed the reasoning of Ehrlich that the patient’s knowledge of the risk of bile duct injury was irrelevant to whether the defendant had performed the operation in accordance with accepted standards of care with the risk of confusing the jury.

Neither Ehrlich nor Granovsky established an absolute prohibition on presenting evidence of known risks of a surgical procedure in general as opposed to the discussions with the particular patient.  Indeed, the Granovsky panel noted that in support of an argument that common bile duct injuries can occur in the absence of negligence, a defendant could present evidence of the known risks of a surgical procedure.  The documented presence of the complication on the patient’s surgical consent limits the perception that the claim of “recognized complication” was an after-the-fact excuse.  It also provides a very tangible piece of physical evidence to be used in cross-examining an opposing expert who denies the status of the outcome as a recognized complication of the procedure.

But the Appellate Division indicated that such evidence should be presented “through the testimony of a defense expert regarding the risks of procedure, without reference to what advice the expert provides or what plaintiff was told of the risks of the surgery.” 2017 WL 3480771 at *9, 2017 N.J. Super. Unpub. LEXIS 2074 at *27-28. See also Hayes v. Camel, 927 A.2d 880, 890 (Conn. 2007); Waller v. Aggarwal, 688 N.E.2d 274, 276 (Ohio Ct. App. 1996).  In Brady v. Urbas, 111 A.2d 1155, 1162 (Pa. 2015), the Pennsylvania Supreme Court had seemed to agree with the admissibility of evidence of general risks and complications in a medical negligence claim.

But the Pennsylvania intermediate appellate court in Mitchell v. Shikora, 161 A.2d 90 (Pa. Super. 2017), rejected the admissibility of such evidence even when presented through experts:

The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by Mitchell does not make it more or less probable that Dr. Shikora conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. … Moreover, the evidence would tend to mislead and/or confuse the jury by leading it to believe that Mitchell’s injuries were simply the result of the risks and complications of the surgery. … Thus, the risks and complications evidence was immaterial to the issue of whether Defendants’ treatment of Mitchell met the standard of care. Accordingly, we hold that the evidence was inadmissible.   [Id. at 975.]

The Pennsylvania Supreme Court agreed to review this decision and whether it conflicted with the earlier Brady v. Urbas ruling. 174 A.2d 573 (2017). Oral argument took place on October 23, 2018. The forthcoming opinion is something to watch for. Some commentators have remarked that without being able to introduce evidence that a complication occurs in the absence of negligence, the potential is created that the medical negligence claim will be turned into one of strict liability. The occurrence of the complication without the context of how it occurs without breach of the standard of care would effectively create a presumption of liability. Such an outcome in the Mitchell case would represent a tectonic shift in principles of medical liability law.

The Affidavit of Merit: A Moment of Kaizen?

On December 14, 2017, the Supreme Court released its opinion in A.T. v. Cohen, another in a series of opinions issued by the Court concerning the Affidavit of Merit Statute in the context of professional liability litigation.  Under this statute, plaintiffs have 60 days from the filing of an answer to a professional malpractice complaint to submit an affidavit of merit from an appropriately licensed person supporting the validity of the claim. The Legislature enacted the statute in an effort to weed out non-meritorious claims rather quickly.  The statute authorizes an additional period of 60 days for plaintiffs to submit the affidavit. Extensions to the 120-day limit are routinely, if not automatically, granted in practice.  The Affidavit of Merit statute states that failure to provide the required affidavit “shall be deemed a failure to state a cause of action” and result in dismissal.  The Court has consistently ruled that in the absence of extraordinary circumstances, the dismissal would be with prejudice.

Following the original enactment of N.J.S.A. 2A:53A-26 et seq. in 1995, the Court has issued at least 9 opinions concerning the applicability and enforcement of the statute.  Since the 2004 adoption of certain enhanced features concerning expert witnesses in cases involving board-certified specialist in the Patients First Act, N.J.S.A. 2A:53A-41, the Court rendered at least five more decisions in this area.  There is an even more substantial body of case law in Appellate Division opinions.   The cases have ranged from the complete lack of a supporting affidavit through late submission of an affidavit sometime due to counsel overlooking the dissemination of an otherwise timely document, submission of an affidavit from an inappropriately credentialed affiant, and delays by defense counsel well beyond the outside 120-day due date.  The decisions frequently invoke “substantial compliance,” “waiver,” “estoppel” or “extraordinary circumstances” to avoid dismissal or at least dismissal with prejudice.  Nonetheless, the issues of compliance with and enforcement of the Affidavit of Merit statute has been described as a “vexing and recurring issue.” Meehan v. Antonellis, 226 N.J. 216, 220 (2016).

The issues in the most recent case involved a minor child as the primary plaintiff who had sustained an Erb’s palsy injury at birth in 2011.  The lawsuit based on this neurological impairment was filed within two years of her birth.  The complaint was filed by a New York law firm which included some New Jersey-admitted attorneys.  When a timely AOM was not filed, defense counsel moved for summary judgment of dismissal.  After the motion was filed, plaintiff’s counsel obtained and served an AOM from a seemingly appropriate expert OB-GYN but out of time.  Plaintiff’s counsel requested an adjournment, which was granted and then substituted out to a new attorney who recognized the untimeliness of the AOM and cross-moved to dismiss voluntarily without prejudice pursuant to R.4:37-1(b) with the intention of re-filing since the statute of limitations applicable to a minor had not expired.  New counsel also requested that the summary judgment motion again be adjourned to assert a challenge to the constitutionality of the statute.  Those applications were denied as was a motion for reconsideration.

The Appellate Division affirmed the dismissal with prejudice.  It declined to address the constitutional challenge because it had not been properly raised below.  One judge dissented from the “with prejudice” dismissal but did not comment on the constitutionality of the AOM statute.

The Supreme Court reversed the dismissal and remanded the matter for further proceedings.  The case had a compelling factual matrix with an injured minor with many years left before expiration of the statute of limitations and a presumptively valid claim in light of the untimely but uncontradicted expert affidavit.  Leading up to the consideration of A.T., there was something of a groundswell of support, including an Editorial in the New Jersey Law Journal, for the notion that dismissal with prejudice was grossly unfair and unnecessarily harsh and that the remedy should instead be dismissal without prejudice.  However, in ruling, the Court did not abandon the paradigm that an AOM-related dismissal should be “with prejudice.” It weighed a number of factors in arriving at this conclusion, including the impact of a without prejudice dismissal on a physician where there were many years left to run on the applicable statute of limitations and there was a known potential claim that might impair the physician’s ability to obtain statutorily mandated liability insurance in order to practice.

While the Court did find “extraordinary circumstances” justifying the continuation of the litigation, more significantly, it focused on the role of the court in the administration of the statute, emphasizing its 2003 decision in Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2001), and its companion case of Knorr v. Smeal, 178 N.J. 169 (2001), and clarifying its ruling in Paragon Contractors, Inc. v. Peachtree Condo Ass’n, 202 N.J. 415 (2010). In Ferreira the Court had announced the establishment of discovery-stage case management conferences to encourage and facilitate compliance with the AMS requirements and to avoid dismissal of meritorious claims due to inadvertence while promoting the AMS goal of weeding out insubstantial claims.  It emphasized that it had intended such conferences within 90 days of the filing of an answer were to be “mandatory” unless waived by the parties based on submission of an acceptable affidavit.  The later Paragon decision that had warned that the lack of a Ferriera conference would not toll the time for submission of the affidavit but did not dispense with its requirement.  No Ferreira conference had been held in the A.T. lawsuit.

The Court chose to use its supervisory powers to deal with the recurrent problems concerning the AOM.  It noted the recent advancements and improvements in the New Jersey judiciary’s electronic case management system that would allow notification of counsel regarding the AOM requirement and the scheduling of a Ferreira case management conference.  Further details are to be forthcoming from the Administrative Office of the Courts.  The objective of the conference within 90 days is to identify and deal with any deficiency in the AOM process and to allow plaintiffs to demonstrate the merits of the case within the remaining time permitted under the statute.

The Court’s plan has great promise in a one-plaintiff-versus-one-defendant case.  However, the devil in the details is sure to emerge in the complexities of multiple defendant matters.  Most simply, without fault or wrongful intent, there can be delays and variability in effecting service of the complaint on all defendants.  This sets up the complexity because “[t]he time for filing the affidavit is calculated not from the date the complaint is filed but from the date of each defendant’s answer.” In re Petition of Hall, 147 N.J. 379, 391 (1997). Accord, Kubiak v. Robert Wood Johnson Univ. Hosp. 332 N.J. Super. 230, 236 (App. Div. 2000). The electronic case management system will need to track the filing of the multiple answers and the trial judge should be able to handle the multiple conferences through use of the late-19th Century invention known as the telephone.

In Gnapinsky v. Goldyn, 23 N.J. 243, 256 (1957), a dissenting Chief Justice Vanderbilt had stated:  “No attorney should get the idea that no matter how complacent or negligent he is with respect to abiding by the rules, neither he nor his client will suffer because the court will pull the chestnuts out of the fire and for the sake of justice to a personally blameless client permit a consideration of the matter on the merits.”  Nonetheless, the long-standing jurisprudence of the New Jersey Supreme Court is to favor disposition of a case on the merits rather than on the basis of some technical shortcoming, especially when attributable to counsel.  The A.T. decision is consistent with that jurisprudence.  And by inserting the court into the process of assuring compliance with the Affidavit of Merit statute early in the case, the objectives of preserving meritorious claims and weeding out insubstantial lawsuits takes on more robust substance.  This is a change for the better.  It is kaizen.

The A.T. matter has one other component worth noting.  Belatedly at the trial level, plaintiff’s counsel sought to challenge the constitutionality of the Affidavit of Merit Statute but was rebuffed for not having raised the issue in a timely fashion. For similar reasons, the Appellate Division majority noted the issue was not properly before it and did not address the contention.  The dissenting member of the panel made no analysis or comment regarding the supposed constitutional deficiencies.  Based primarily on the separation of powers doctrine, the unconstitutionality of the AMS and the related Patients First Act has been raised on a number of occasions, including in four Supreme Court matters since the seminal decision in Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218 (1998), in which the contention was summarily rejected but in what would properly be characterized as dicta.  Since then the Supreme Court has manifested its interest in the issue by handling the constitutional challenges with footnotes or passing references without addressing the substance of the argument.

At the outset of the A.T. oral argument on September 25, 2016, the Chief Justice advised all counsel:  “We are here on the basis of the dissent and the constitutionality of the statute was not part of the appeal of right.  So to the extent part of any argument you want to present is that, please rest on your papers and proceed to focus on other items.”  There was no discussion of the constitutionality of the statute in the Court’s unanimous opinion and not even a mention of it having been asserted.  It remains to be seen if there will be any further attempts to flog what surely looks like a dead horse.

Termination of the Designation of Trial Counsel for Medical Malpractice Defendants: Presumptive But Not Automatic

The highly respected and distinguished judge Wilfred H. Jayne made the following observation in Amo v. Genovese, 17 N.J. Super. 109, 85 A.2d 529 (App. Div. 1951), certif. denied, 9 N.J. 181, 87 A.2d 576 (1952):  “It is exceedingly desirable, if not imperative, that in the disposition of the modern quantity of litigation, expedition must supplant languor, but never at the expense of justice.”  With the issuance of its 2014 Omnibus Rules Amendment Order at the end of July, the New Jersey Supreme Court found a way to balance the clamor for administrative efficiency and calendar control regarding medical malpractice litigation with the administration of justice in individual cases.

The Court adopted a modification of the recommendation made by its Civil Practice Committee for an amendment to Rule 4:25-4.  Since 1964 the Rules of Court have provided that a party in a civil lawsuit may notify the court that a particular lawyer is designated to try the case.  If there is no attorney designated as trial counsel in accordance with the Rule, then the court and opposing counsel have the right to expect any partner or associate to proceed with the trial when the case is reached on the trial calendar.  By its terms, the Rule applies to counsel for plaintiffs and for defendants.  A subcommittee of the Civil Practice Committee reviewed data concerning significant backlogs in the disposition of medical malpractice cases and find that on average such case took almost four years to reach a trial date and such cases had the highest frequency of trial date adjournments.  The Report asserted that trials were “routinely adjourned” on the basis of the unavailability of designated trial counsel and noted that there were a “limited number of defense counsel permitted to try these cases.”  After due consideration, the Civil Practice Committee proposed an amendment that continued the designation of trial counsel procedure but revising the Rule so that such designation “shall expire” in all medical malpractice cases “pending for more than three years.”  The Committee’s Report adopted the subcommittee’s proposal for “the automatic expiration” of the designation of trial counsel.  It recommended that the amendment not go into effect until January 1, 2015 to allow time to accommodate the impact on already existing cases.  No type of case other than medical malpractice matters would be affected by the proposed amendment to terminate trial counsel designation.

The Supreme Court received comments from various bar organizations, some law firms, and stakeholders such as the Medical Society of New Jersey.  While the Supreme Court accepted the deferred effective date rather than using the September 1, 2014 date for most of the approximately 50 rule amendments in the Omnibus Order, it changed the language of the amendment to R.4:25-4.  As implemented by the Supreme Court, designation of trial counsel “shall presumptively expire” in medical malpractice cases that have been pending for more than three years.  The changed language sets an expectation regarding the ready status of a case but continues to repose in the bench – whether the presiding judge for the county or the actual trial judge – the need for the exercise of judicial discretion.

The defense of physicians in medical malpractice claims frequently present issues that will require the careful exercise of this discretion.  While meritorious claims are advanced against physicians, there are many cases that are either without merit or that present substantial defenses and answers to the asserted wrongdoing and liability.  But the only way for a physician sued for malpractice to avoid permanent harm to a professional career and reputation is to litigate the lawsuit to a successful conclusion.

Physicians must report to both the Federal Government’s National Practitioner Data Bank (NPDB) and the State Medical Practitioner Review Panel any settlements of malpractice suits filed against them as well as the entry of judgments against them resulting from a malpractice lawsuit.  Such collateral consequences of being sued and having a resulting judgment or settlement in tort cases are virtually unique to health care providers.  This reporting alone has a significant adverse impact on a physician’s professional career and reputation. Reports to the NPDB are accessed by health plans and insurance carriers; hospitals; nursing homes; and other healthcare entities.  Based on the information reported health plans may terminate participation agreements; hospitals may undertake a review of the circumstances of the settlement and take negative actions; privileging and credentialing may be negatively impacted; healthcare entities may revoke privileges or use the settlement as a basis not to privilege or employ the physician in the future.  Reports to the State Medical Practitioner Review Panel may result in investigations or disciplinary proceedings that could jeopardize one’s license but in any event will cause a disruption in one’s practice and life.  The compulsory change of defense lawyers from a previously designated trial counsel can result in a switch from a lawyer familiar with the matter to one who comes to the case late with the risk of lesser preparation and insight.  This heightens the potential for an adverse outcome in a case that could be won and increases the pressure to accept a settlement in a matter that should be taken to verdict.  Even the settlement of a case without merit must be reported by physicians. In fact, the only way for a physician to avoid harm to his/her professional career and reputation is to litigate to a successful conclusion.

In many instances physicians can and do choose an individual attorney, not a firm or the defense bar, to represent them in malpractice cases. The choice is frequently personal and is based on trust in that individual’s skill to bring the matter to a successful conclusion. The choice may be based on prior experience with the attorney, the recommendation of a trusted colleague, or the attorney’s successful record with similar cases. The bond between the physician-client and attorney grows throughout discovery and preparation for the trial. The physician-client puts his professional career and reputation in the hands of the designated trial attorney the same way a patient puts his health in the hands of a surgeon.  Thus, two important bonds are at risk here: the physician-patient relationship which is the subject of the litigation, and the attorney-client relationship which is crucial in the eyes of the physician to ensure that he/she has the counsel who has prepared the case and who will handle the trial to its conclusion.  In its case law the New Jersey Supreme Court frowned on “ghost surgery” where another surgeon was substituted for the individual who had been engaged and expected to do the operation.  A similar dynamic is presented by an automatic waiver of designated trial counsel status.

In addition to the trust that the physician has placed in his/her trial attorney, that attorney is best prepared to try the case. The attorney will know facts and medical and legal issues better than another attorney who is brought in simply to move the calendar. In fact, the designated trial attorney may be able to move the case more quickly, once the trial has started, than a newly designated one.

The need to move the calendar and to bring malpractice cases to a timely resolution is a mutually shared objective of all parties to the litigation. The pendency of a lawsuit has negative ramifications for all parties involved.  The toll of protracted litigation is significant in terms of the time required to defend and the emotional strain when a patient has suffered a bad outcome and believes that the physician did not exercise the appropriate standard of care. However, the need for trials to commence in an appropriate amount of time and the physician’s right to proceed at trial with his/her choice of counsel must be balanced against each other and assessed in light of reasons for delay.

The “presumptive” waiver of designated counsel after three years should not become “automatic” without taking into consideration the reasons that counsel is unavailable or whether counsel was available prior to reaching the three-year benchmark.  Judges should have discretion to consider all the reasons for delay, including the late identification of additional defendants and the need for additional discovery extending the time to get trial-ready as well as the continuing impact of prolonged judicial vacancies, on the trial schedule. Judges must have the discretion to weigh the potential harm to a physician of going to trial with a new attorney against the need to move the calendar.

It is the duty of the court to consider and determine issues before it so that the rights of the parties may be fairly protected in an orderly manner. It is as much an abuse of judicial discretion in refusing to exercise such discretion when warranted by the facts before the court, as it is to exercise that discretion improperly by means of a decision that is clearly erroneous on the facts or under the law.  But whether “presumptively” becomes “automatically” and the discretion is exercised in favor of mandatory waiver remains to be tested in the crucible of the trial calendar call.

Affordable Care and the Continuing Debate on Malpractice Damages Caps

The Affordable Care Act contains only a passing reference to malpractice tort reform in a section providing the “sense of the Senate” as well as establishing funding for pilot programs at the state level.  Lobbying efforts to achieve any significant tort reform measures were unsuccessful.  Those efforts included the pursuit of a federal cap on medical malpractice awards.  Such efforts at both the federal and state levels can be traced to the 1975 innovation in California with its passage of the Medical Injury Compensation Reform Act (“MICRA”) limiting noneconomic damages to $250,000.  California’s MICRA has withstood court challenges to its constitutionality.  A number of other states followed similar paths to that taken in California, enacting various iterations of the MICRA model; no such legislation has been enacted in New Jersey although such bills have been introduced in the legislature.   While some state courts around the country have upheld such legislation against constitutional attacks, there are several states that have found the legislation to violate several different constitutional guarantees.

The intensity of the debate over damages caps waxes and wanes.  Renewed activity is likely to be sparked by a March 24, 2014 ballot initiative in California to raise the cap amount from $250,000 to $1.1 million and an opinion filed March 13, 2014 by the Florida Supreme Court.  In Estate of McCall v. United States, 2014 WL 959180 (Fl. 2014), the court ruled that that state’s statutory cap enacted in 2003 limiting the wrongful death noneconomic damages that could be recovered in a medical malpractice case was an unconstitutional violation of the equal protection clause of the Florida constitution.  Five of the seven justices agreed with that conclusion but fractured over the reasoning to get to it.  The opinion for the court was actually a plurality decision rather than a majority.  There were two justices who dissented as to the entirety of the decision and who would have deferred to the legislature’s policy choice of enacting a cap of $1 million on noneconomic damages in medical malpractice cases involving death as being rationally related to legitimate state interests of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.

The issue in the case arose out of the prenatal care given to a patient at a United States Air Force clinic who was suffering from preeclampsia.  There was an extended delay in performing an emergency cesarean section.  Although a healthy baby was born, the mother went into shock and cardiac arrest.   The woman never regained consciousness and died four days later.   A lawsuit was filed under the Federal Tort Claims Act which provides that damages are determined by the law of the state where the tortious act was committed.  Sitting without a jury in accordance with the Federal Tort Claims Act, the trial judge determined that the economic damages for financial losses were in the amount of $980,462.40 and that there were noneconomic damages of $2 million in favor of the surviving family members.   The trial judge then proceeded to reduce the noneconomic damages recovery to $1 million pursuant to the Florida statutory cap for medical malpractice matters.   The trial judge rejected challenges to the constitutionality of the damages cap.  On appeal, the Eleventh Circuit rejected several components of the plaintiff’s constitutional challenges.  Estate of McCall ex rel McCall v. United States, 642 F.3d 944 (11th Cir. 2011).  These included the alleged violations of the Fourteenth Amendment’s Equal Protection Clause.  (The United States Supreme Court had declined to review constitutional challenges to California’s MICRA in Fein v. Permanente Medical Group, 474 U.S. 892 (1985) dismissing the appeal “for want of a substantial federal question.”). With regard to state constitutional challenges, the Court of Appeals concluded that there was inadequate state precedent and it used an available procedure to certify questions directly to the Florida Supreme Court.   It identified four questions to be addressed but the Florida Supreme Court chose to answer only one, which it rephrased in terms of the wrongful death noneconomic damages and equal protection.  Since the court found the constitution was violated, it did not need to address the remaining alternative grounds of challenge.  It emphasized the wrongful death claim as being of statutory nature and unknown at common law.  It did not address the constitutional status of the damages cap in a non-wrongful death context.

The equal protection deficiencies with damages caps have been articulated in various ways.  These include an arbitrary distinction between injured victims of medical negligence and persons injured through other forms of negligence or tortuous conduct and distinguishing the recovery available for a slightly injured person from that available for a severely injured person.  Interference with the right to a jury trial to resolve the extent of any damages award has also been involved.  The assessment of governmental purposes of reducing costs and assuring access to care has been subject to differing levels of scrutiny, affecting the conclusion reached by various courts.

While New Jersey does not have a statute generally applying to recoverable damages in medical malpractice cases, it has long had a statute limiting recoverable damages in malpractice claims against nonprofit hospitals.  N.J.S.A. 2A:53A-8.  As originally enacted this limit was $10,000.  The statute was amended in 1991 to increase the recoverable amount to $250,000.  This limitation only applies to the institution and not to employees or agents who can be identified as culpable actors.   The constitutional validity of N.J.S.A. 2A:53A-8 was challenged but upheld in Edwards v. Our Lady of Lourdes Hosp., 217 N.J. Super. 448 (App. Div. 1987).  The court noted that the limitation on the hospital liability was an exception to the complete immunity afforded to charitable institutions in a preceding statutory provision.  The constitutionality of the statute was again challenged in Johnson v. Mountainside Hosp., 239 N.J. Super. 312 (App. Div.), certif. denied, 122 N.J. 188 (1990).   Plaintiff argued that the statute was “special legislation” and violated the due process and equal protection clauses of the federal constitution and the comparable protections of the New Jersey constitution.  The intermediate appellate court upheld the statute’s constitutionality and further review was denied by the New Jersey Supreme Court.

There currently are bills pending in the New Jersey legislature that would cap recoverable noneconomic damages in a professional negligence action against a “health care provider” at $250,000.  Similar bills have been introduced in prior sessions but not been released from committee.  There is substantial literature looking at the impact of tort reform with damages caps on lowering direct and indirect costs of medical care and the access to health care.

Engaging in an analysis of malpractice tort reform – whether in the form of damages caps or otherwise – is likely to be critical to the full implementation of the Affordable Care Act.

Limitation On Medical Malpractice Insurers’ Ability to Cancel Coverage

In a precedential opinion filed on January 22, 2014 in DeMarco v. Stoddard, the intermediate appellate court of the New Jersey Superior Court ruled that a malpractice insurer could not deny coverage for an insured who had made material misrepresentations in obtaining his insurance policy.  This is the first published opinion in New Jersey addressing broadly the implications of the mandatory nature of medical malpractice insurance in the state.

While physicians have long obtained professional liability insurance coverage as a matter of prudent financial planning, such coverage was not required in New Jersey until 1998 when the Legislature enacted a statutory requirement that a physician with an office in the state and having patient care responsibilities was to be covered by malpractice insurance or a posted letter of credit.  See N.J.S.A. 45:9-19-17.  In 2004 N.J.S.A 45:9-19-17 was amended to require a specific amount of malpractice insurance as a minimum – $1 million – to be maintained by a physician with patient responsibilities.

In DeMarco the court dealt with a malpractice claim that was brought by a patient against a podiatrist.  The defendant podiatrist had obtained insurance coverage through the Medical Malpractice Joint Underwriting Association of Rhode Island encompassing the period of 2007 through 2011.   Dr. Stoddard was licensed in both Rhode Island and New Jersey.  He had a Rhode Island office address that was included in his application.  He also indicated that “at least 51%” of his practice was generated in Rhode Island.  That statement was false.  The false statement was repeated in renewal applications.

In September 2010 Dr. Stoddard performed surgery on the patient DeMarco in New Jersey.  The patient had difficulties and his condition worsened.  He came under the treatment of another provider and eventually filed suit in October 2011.  Dr. Stoddard forwarded notice of the suit to the Rhode Island JUA for defense.  It responded that it would not provide a defense if more than half his practice were in New Jersey and considered the policy void because of the misrepresentations.  The patient’s attorney sought a declaratory judgment as to the JUA’s obligation to defend and indemnify Dr. Stoddard.  This was granted in the patient’s favor by the trial judge.

The Appellate Division affirmed. The court viewed the statutory requirement for medical malpractice insurance as the equivalent to the financial responsibility provisions of mandatory automobile insurance in New Jersey. The court noted that New Jersey requires that doctors carry malpractice insurance of at least $1 million coverage per occurrence, or if insurance coverage is not available, doctors must demonstrate their financial responsibility with a letter of credit of at least $500,000.   There is a similar requirement for podiatrists found in N.J.S.A. 45:5-5.3(a).  It quoted the legislative history that these laws were enacted to “ensure the citizens of the State that they will have some recourse for adequate compensation in the event that a physician or podiatrist is found responsible for acts of malpractice.”