A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. A-0589-14T1

A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, 

T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. 

A-0589-14T1 

The issue in this medical malpractice case is whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. The court concludes that Rule 4:37-1(b) cannot be used to circumvent the time strictures in the AOM statute even if the statute of limitations has not expired. 

Plaintiff's counsel failed to file an AOM within 120 days of the filing of the answer. No extraordinary circumstances were presented; just an "oversight" of counsel. After defendants moved for summary judgment, counsel requested leave to take a voluntary dismissal under Rule 4:37-1(b), reasoning that there remained many years until the expiration of the statute of limitations due to plaintiff's status as a minor and there was no prejudice to defendants. 

The court finds that permitting a voluntary dismissal in these circumstances would render the AOM statute and its underlying purpose meaningless. The minor's claim was pursued by her guardian ad litem and she was represented by counsel. The Legislature did not choose to carve out an exception for minors under the AOM statute as it has done with the statute of limitations in tort cases. 

Judge Fisher dissents, concluding that a trial judge should have the authority to exercise discretion and grant a voluntary dismissal, if appropriate, to preserve the future of a minor's malpractice action. He notes the protections afforded minors, including the equitable tolling of a minor's suit under the 

Wrongful Death Act and the process requiring judicial approval of settlement reached on behalf of minors, R. 4:44. He finds the minimal prejudice incurred by defendants can be addressed by the trial judge with the imposition of any terms necessary to alleviate that harm upon the re-filing of the complaint. 

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. A-3017-11T1

KHASHAYAR VOSOUGH, M.D., ET AL. VS. ROGER KIERCE, M.D., ET AL. 

A-3017-11T1 

In this common law contract and tortious interference case, plaintiff doctors claimed damages on the ground that defendant hospital's bylaws were violated and not enforced by the hospital. The jury's verdict of about $1.27 million for plaintiffs is reversed because they did not have viable theories of recovery and because they did not prove compensable damages. 

The same conduct of the individual defendants (the hospital's CEO and a department chairman) that allegedly constituted their tortious interference with plaintiffs' independent contractor agreements could not also constitute their conduct on behalf of the hospital that constituted the hospital's breach of the contract. 

Furthermore, the at-will independent contractor agreements limited the doctors' claim for future lost income to 60 days, which was the time for notice by either party that the contract would be terminated. 

C.A., ET AL. VS. ERIC BENTOLILA, M.D., ET AL. A-1261-11T1

C.A., ET AL. VS. ERIC BENTOLILA, M.D., ET AL. A-1261-11T1

In this case of first impression, we construe the confidentiality provisions within the Patient Safety Act (the "PSA"), N.J.S.A. 26:2H-12.23 to -12.25, and their interplay with other laws and procedures, including the qualified common-law privilege for self-critical analysis of medical peer review documents set forth in Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004).

We hold that post-event investigatory and analytic documents exclusively created by a medical facility in compliance with the PSA and its associated regulations, and not created for some other statutory or licensure purpose, are absolutely privileged from disclosure under the PSA. The PSA's confidentiality provisions insulate such documents from outside access. They do so regardless of a plaintiff's asserted needfor disclosure and regardless of whether the documents contain factual information in addition to subjective opinions.

However, if the specified procedures of the PSA and the related regulations have not been observed, or if the documents have been generated for additional non-PSA purposes, then the PSA's absolute privilege does not apply. Instead, other legal principles govern, such as those expressed in Christy, depending upon the kind of document involved. 8-09-12 

LAURIE NEWMARK-SHORTINO, ET AL. VS. ANDREI BUNA, M.D.

LAURIE NEWMARK-SHORTINO, ET AL. VS. ANDREI BUNA, M.D. A-0332-10T3

In this medical negligence action where the jury entered a no cause verdict in favor of defendant, we hold the trial court committed reversible error when it failed to submit to the jury plaintiffs' lack of informed consent theory, in addition to their claim of deviation from the standard of care (medical malpractice).  Although the facts supporting each theory of liability were intertwined, the evidence before the jury was sufficient to submit both theories of liability for their verdict.  We reversed and remanded for a new trial based solely upon a claim of lack of informed consent. 07-27-12

MARQUIS A. WALKER, ETC. VS. ILMIA CHOUDHARY, M.D., ET AL. A-1425-10T1

MARQUIS A. WALKER, ETC. VS. ILMIA CHOUDHARY,

 M.D., ET AL.

 A-1425-10T1

 In this appeal, we conclude that a dismissal against an

employee on the basis of the statute of limitations is not an

adjudication on the merits so as to bar the claims against the

principals.  

 We also determine that the matter shall be remanded to the

trial court for a Lopez hearing to determine whether the 

"relation-back" doctrine, Rule 4:9-3, is applicable and, if not,

whether, in the interest of justice, the Rule should be relaxed. 03-30-12

Selective Insurance Company of America v. Arthur C. Rothman, M.D.

Selective Insurance Company of America v. Arthur C.           Rothman, M.D. (066630; A-60-10) 

          Physician Assistants are not authorized to perform the           electrodiagnostic test known as needle           electromyography (EMG).  The Court declines to           consider defendant’s application that its decision be           given only prospective effect.  1-18-12   

JEFFREY LIPKOWITZ, M.D., ET AL. V. HAMILTON SURGERY CENTER, LLC, ET AL. A-4489-08T1

JEFFREY LIPKOWITZ, M.D., ET AL. V. HAMILTON SURGERY

CENTER, LLC, ET AL.

A-4489-08T1 08-04-10

In this appeal we construe the term "financial detriment"

as found in the New Jersey Uniform Securities Law (USL),

N.J.S.A. 49:3-47 to -76, which requires that claimants prove

that they suffered a "financial detriment." N.J.S.A. 49:3-71

(b)(1). We hold that the USL indicates a legislative intent to

place investors in the same position they were in before making

the investments, not a preference of giving them the benefit of

their bargains.

CATHERINE KENNEDY CARCHIDI, ET AL. V. MICHELLE ( A-4986-08T3 )

CATHERINE KENNEDY CARCHIDI, ET AL. V. MICHELLE
A. IAVICOLI, M.D., ET AL. ( A-4986-08T3 ) 3-24-10


To avoid inherent and unjustified prejudice to the medical
malpractice plaintiff and unwarranted interference with the
physician-patient relationship, the defense may not use as
causation experts physicians who have never treated plaintiff
but are members of his treatment group.