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Friday, February 8, 2008

Medical Negligence/Medical Malpractice

Kenneth Vercammen, Esq. Helps persons injured as a result of negligence of another person or company
A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. The purpose of this article is to describe some of the caselaw in a medical malpractice/ negligence case.

Duty and Negligence

The plaintiff(s) must prove the doctors were negligent in the diagnosis and [/or] treatment, and that such negligence was a substantial factor in causing the plaintiff(s) to be injured.

Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm. Negligence may result from the performance of an act or the failure to act. The determination of whether a defendant was negligent requires a comparison of the defendant's conduct against a standard of care. If the defendant's conduct is found to have fallen below an accepted standard of care, then he or she was negligent.

Certain doctors are specialists. Specialists in a field of medicine represent that they will have and employ not merely the knowledge and skill of a general practitioner, but that they have and will employ the knowledge and skill normally possessed and used by the average specialist in the field. Thus, when a physician holds himself/herself out as a specialist and undertakes to diagnose and treat the medical needs of a patient, the law imposes a duty upon that physician to have and to use that degree of knowledge and skill which is normally possessed and used by the average specialist in that field, having regard to the state of scientific knowledge at the time that he/she or she attended the plaintiff.

Based upon common knowledge alone, and without technical training, jurors normally cannot know what conduct constitutes standard medical practice. Therefore, the standard of practice by which a physician's conduct is to be judged must be furnished by expert testimony, that is to say, by the testimony of persons who by knowledge, training or experience are deemed qualified to testify and to express their opinions on medical subjects.

Jurors should not speculate or guess about the standards of care by which the defendant physician(s) should have conducted himself/herself/themselves in the diagnosis and treatment of the plaintiff. Rather, they must determine the applicable medical standard from the testimony of the expert witness(es) you have heard in the case.

Where there is a conflict in the testimony of the medical experts on a subject, it is for the jury to resolve that conflict using the same guidelines in determining credibility. They are not required to accept arbitrarily the opinions offered. They should consider the expert's qualifications, training, and experience, as well as his/her understanding of the matters to which he/she or she testified.

Where an expert has offered an opinion upon an assumption that certain facts are true, it is for the jury to decide whether the facts upon which the opinion is based are true. The value and weight of an expert's testimony in such instances is dependent upon, and no stronger than, the facts upon which it is predicated.

When determining the applicable standard of care, the jury must focus on accepted standards of practice or specialty involved, and not on the personal subjective belief or practice of the defendant doctor.

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. Therefore, whether the defendant doctor was negligent depends not on the outcome, but on whether he/she adhered to or departed from the applicable standard of care.

If the jury finds that the defendant has complied with the accepted standard of care, then he/she is not liable to the plaintiff regardless of the result. On the other hand, if the jury find that the defendant has deviated from the standard of care resulting in injury or damage to plaintiff, then you should find defendant negligent and return a verdict for plaintiff.

Negligence is the failure to comply with the standard of care to protect a person from harm. Negligence in a doctor's medical practice, which is called malpractice, is the doctor's failure to comply with the standard of care in the care and treatment of his/her patient. Usually it is necessary to establish the standard of care by expert testimony, that is, by testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons, such as jurors, who lack such special training or experience. In the usual case the standard of care by which to judge the defendant's conduct cannot be determined by the jury without the assistance of expert medical testimony.

Where there has been expert medical testimony as to the standard of care, but the standard is one which can also be determined by the jury from its common knowledge and experience, the jury should determine the standard of care after considering all the evidence in the case, including the expert medical testimony, as well as its own common knowledge and experience.

a) Common Knowledge

The common knowledge doctrine was applied in Martin v. Perth Amboy General Hospital, 104 N.J. Super. 335 (App. Div. 1969), where a laparotomy pad was left in plaintiff's body during an operation, Tramutola v. Bortone, 63 N.J. 9 (1973), where plaintiff discovered that a needle had been left in her chest during surgery; Steinke v. Bell, 32 N.J. Super. 67 (App. Div. 1954), where a dentist removed the wrong tooth; Becker v. Eisenstodt, 60 N.J. Super. 240 (App. Div. 1960), where the defendant used a caustic substance instead of an anesthetic; and Terhune v. Margaret Hague Maternity Hospital, 63 N.J. Super. 106 (App. Div. 1960), where plaintiff was burned as a result of the improper administration of an anesthetic during childbirth, Nowacki v. Community Medical Center, 279 N.J. Super. 276 (App. Div. 1995), where plaintiff alleged that she fell while attempting to lift herself onto a treatment table, Tierney v. St. Michael's, 214 N.J. Super. 27 (App. Div. 1986), certif. den. 107 N.J. 114 (1987), where plaintiff's infant crawled out of a crib while hospitalized at the defendant hospital, Winters v. Jersey City Medical Center, 120 N.J. Super. 129 (App. Div. 1972), where 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. The common knowledge doctrine was applied to a failure to communicate an abnormal finding and the signing of an incorrect discharge summary in Jenoff v. Gleason, 215 N.J. Super. 349 (App. Div. 1987). In Rosenberg by Rosenberg v. Cahill, 99 N.J. 318 (1985), the common knowledge doctrine was not applied to the failure to observe a tumor in an x-ray.

The court rejected the plaintiff's reliance on the common knowledge doctrine in Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997), involving hernia surgery.

See also, Sanzari v. Rosenfeld, 34 N.J. 128 (1961), Jones v. Stess, 111 N.J. Super. 283 (App. Div. 1970), Klimko v. Rose, 84 N.J. 496 (1980).

b) Res ispa loquitur

There are three requirements which must be demonstrated in order to apply the doctrine of res ipsa loquitur:

(1) The occurrence must be one which ordinarily bespeaks negligence;

(2) The instrumentality causing the injury must have been within defendant's exclusive control; and

(3) There must be no indication that the plaintiff's injury was in any way the result of his own voluntary act or neglect.

A detailed analysis of the doctrine of res ipsa is found in Gould v. Winokur, 98 N.J. Super. 554 (Law Div. 1968), aff'd., 104 N.J. Super. 329 (App. Div. 1969), certif. den. 53 N.J. 582 (1969). See also, Buckelew v. Grossbard, 87 N.J. 512 (1981).

The difference between the res ipsa doctrine and the common knowledge doctrine is that the res ipsa doctrine requires expert testimony to prove the first element of proof, i.e., that the occurrence does not usually happen in the absence of negligence. Smallwood v. Mitchell, 264 N.J. Super. 295 (App. Div. 1993), certif. den. 134 N.J. 481 (1993).

The logical extension of the res ipsa and common knowledge doctrines is the conclusion that there are cases where the facts are such that at least one defendant must be liable as a matter of law. The genesis of this concept in New Jersey is found in Anderson v. Somberg, 67 N.J. 291 (1975), cert. den. 423 U.S. 929 (1975). See also, Chin v. St. Barnabas Medical Center, 160 N.J. 454 (1999).

The doctrine of res ipsa loquitur was deemed applicable in Yerzy v. Levine, 108 N.J. Super. 222 (App. Div. 1970), aff'd. 57 N.J. 234 (1970), where the common bile duct had been completely severed during gall bladder surgery; Pearson v. St. Paul, 220 N.J. Super. 110 (App. Div. 1987), where plaintiff's sixteen year old daughter died after arthroscopic knee surgery.

The doctrine of res ipsa loquitur was deemed inapplicable in Toy v. Rickert, 53 N.J. Super. 27 (App. Div. 1958), where plaintiff alleged that the defendant negligently administered a shot of penicillin into plaintiff's right buttock causing nerve damage; in Renrick v. Newark, 74 N.J. Super. 200 (App. Div. 1962), where plaintiff alleged that the defendant negligently injected a drug resulting in severe burning of both forearms and widespread scarring; Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997), involving hernia surgery.

c) Common knowledge can be employed in some cases although expert medical testimony is also offered as to the standard of care and defendant's alleged departure therefrom. See Sanzari v. Rosenfeld, supra, 34 N.J. at 138 and 143.


We appreciate that this is a great deal of information to absorb. We also appreciate that our requests for client's assistance have been numerous. However, we are certain that clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for an injury.