Verdicts

Court Reinterprets the 'Specialty' Required by Affidavit of Merit Law

Giving a liberal interpretation to a 2004 amendment that tightened the criteria for affidavits of merit in New Jersey, a federal judge in Camden, NJ, declared that, when considering who may vouch for the merits of a medical malpractice claim, the nature of the treatment at issue trumps the physician's specialty. Jorden v. Glass, 2010 WL 786533 (D.N.J. 3/5/10).

Plaintiff Brenda Jorden brought suit after her brother died of a heart attack while participating in a clinical trial for a new schizophrenia drug. He died after allegedly complaining of chest pains and showing signs of other ailments, which the psychiatrist conducting the clinical trial allegedly ignored. To satisfy the affidavit of merit requirement, the plaintiff provided the affidavits of a general practitioner, and later of a cardiologist, but not of a psychiatrist.

The 2004 amendment to New Jersey's affidavit of merit law says that, where the medical malpractice claim is against a medical specialist and “the care or treatment at issue involves that specialty,“ the person providing the affidavit must have the same specialty as the caregiver. Based on this, the defendant psychiatrist moved to dismiss for failure to comply with the affidavit statute. He argued that the affidavit had to come from a psychiatrist who, like him, was also board-certified to conduct phase I clinical trials. U.S. Magistrate Judge Joel Schneider denied the motion, finding that a general practitioner's affidavit was sufficient here because the alleged malpractice did not concern a psychiatric diagnosis, but rather a diagnosis of chest pain.

Plaintiff May File Late Notice of Claim Where Hospital Already Knew the Facts

A New York court declared a late notice of claim timely served on a hospital, as the hospital was privy to the circumstances of the subject infant's injuries as of the time that those injuries were suffered. Babb v. NYC Health & Hospitals Corp., 16661/07; Decided: March 2, 2010.

A mother, on behalf of her infant son, sued the hospital at which he was born, claiming her son suffered injuries caused by hospital personnel during labor and delivery. The child suffered seizures within hours of his birth, and his condition was then listed as critical. The mother sued for damages.

When the hospital moved for dismissal due to late notice of claim, the plaintiff argued that the medical records put the defendant on notice of the malpractice action within a reasonable time. She therefore asked that the notice of claim be deemed timely, or that she be permitted to file a late notice of claim.

The plaintiff provided expert testimony that the child suffered permanent brain injury following a series of hypoxic ischemic episodes in the hours preceding birth. The expert asserted that continued abnormalities in the fetal heart monitoring strips should have alerted the staff to the presence of fetal distress. The defendant's opposing papers offered no opposing expert affidavits or other contrary evidence. Finding that the hospital had actual notice of the essential facts constituting the claim within a reasonable period of time, the court permitted the plaintiff to file a late notice even though she had no reasonable excuse for the delay.

Georgia High Court Says 'No' to Damage Caps

In a unanimous ruling, Georgia's Supreme Court has struck down damage caps for pain and suffering in medical malpractice cases, finding that the right to trial by jury is impinged by the limits imposed by tort-reform legislation. Atlanta Oculoplastic Surgery, P.C., v. Nestlehutt, S09A1432 (Ga, 3/22/10).

The ruling came in a case brought by Betty Nestlehutt, who was left disfigured and without a normal blood supply to her face following plastic surgery. A jury awarded Nestlehutt $115,000 for medical expenses; $900,000 for pain and suffering, diminished earning capacity and loss of enjoyment of life; and $250,000 for her husband's loss of consortium. The defendant, Atlanta Oculoplastic Surgery, contended that 2005's Georgia Senate Bill 3 permitted the award of no more than $350,000 in pain and suffering damages. Therefore, the defendant argued, Nestlehutt's damages should be reduced to $115,000 for medical expenses and $350,000 for all non-economic damages, making a total of $465,000. The defense contended that this was not a question of denying the plaintiff the right to trial by jury, because the plaintiff did indeed have the right to have a jury, not a judge, serve as the trier of fact. A limitation on damages, argued the defendant, was unconnected to the right to trial by jury. The Supreme Court found, however, that the caps violated the right to trial by jury by nullifying the will of the jury, which had made a factual determination as to the amount of damages that were owed to the plaintiff.

Court Reinterprets the 'Specialty' Required by Affidavit of Merit Law

Giving a liberal interpretation to a 2004 amendment that tightened the criteria for affidavits of merit in New Jersey, a federal judge in Camden, NJ, declared that, when considering who may vouch for the merits of a medical malpractice claim, the nature of the treatment at issue trumps the physician's specialty. Jorden v. Glass, 2010 WL 786533 (D.N.J. 3/5/10).

Plaintiff Brenda Jorden brought suit after her brother died of a heart attack while participating in a clinical trial for a new schizophrenia drug. He died after allegedly complaining of chest pains and showing signs of other ailments, which the psychiatrist conducting the clinical trial allegedly ignored. To satisfy the affidavit of merit requirement, the plaintiff provided the affidavits of a general practitioner, and later of a cardiologist, but not of a psychiatrist.

The 2004 amendment to New Jersey's affidavit of merit law says that, where the medical malpractice claim is against a medical specialist and “the care or treatment at issue involves that specialty,“ the person providing the affidavit must have the same specialty as the caregiver. Based on this, the defendant psychiatrist moved to dismiss for failure to comply with the affidavit statute. He argued that the affidavit had to come from a psychiatrist who, like him, was also board-certified to conduct phase I clinical trials. U.S. Magistrate Judge Joel Schneider denied the motion, finding that a general practitioner's affidavit was sufficient here because the alleged malpractice did not concern a psychiatric diagnosis, but rather a diagnosis of chest pain.

Plaintiff May File Late Notice of Claim Where Hospital Already Knew the Facts

A New York court declared a late notice of claim timely served on a hospital, as the hospital was privy to the circumstances of the subject infant's injuries as of the time that those injuries were suffered. Babb v. NYC Health & Hospitals Corp., 16661/07; Decided: March 2, 2010.

A mother, on behalf of her infant son, sued the hospital at which he was born, claiming her son suffered injuries caused by hospital personnel during labor and delivery. The child suffered seizures within hours of his birth, and his condition was then listed as critical. The mother sued for damages.

When the hospital moved for dismissal due to late notice of claim, the plaintiff argued that the medical records put the defendant on notice of the malpractice action within a reasonable time. She therefore asked that the notice of claim be deemed timely, or that she be permitted to file a late notice of claim.

The plaintiff provided expert testimony that the child suffered permanent brain injury following a series of hypoxic ischemic episodes in the hours preceding birth. The expert asserted that continued abnormalities in the fetal heart monitoring strips should have alerted the staff to the presence of fetal distress. The defendant's opposing papers offered no opposing expert affidavits or other contrary evidence. Finding that the hospital had actual notice of the essential facts constituting the claim within a reasonable period of time, the court permitted the plaintiff to file a late notice even though she had no reasonable excuse for the delay.

Georgia High Court Says 'No' to Damage Caps

In a unanimous ruling, Georgia's Supreme Court has struck down damage caps for pain and suffering in medical malpractice cases, finding that the right to trial by jury is impinged by the limits imposed by tort-reform legislation. Atlanta Oculoplastic Surgery, P.C., v. Nestlehutt, S09A1432 (Ga, 3/22/10).

The ruling came in a case brought by Betty Nestlehutt, who was left disfigured and without a normal blood supply to her face following plastic surgery. A jury awarded Nestlehutt $115,000 for medical expenses; $900,000 for pain and suffering, diminished earning capacity and loss of enjoyment of life; and $250,000 for her husband's loss of consortium. The defendant, Atlanta Oculoplastic Surgery, contended that 2005's Georgia Senate Bill 3 permitted the award of no more than $350,000 in pain and suffering damages. Therefore, the defendant argued, Nestlehutt's damages should be reduced to $115,000 for medical expenses and $350,000 for all non-economic damages, making a total of $465,000. The defense contended that this was not a question of denying the plaintiff the right to trial by jury, because the plaintiff did indeed have the right to have a jury, not a judge, serve as the trier of fact. A limitation on damages, argued the defendant, was unconnected to the right to trial by jury. The Supreme Court found, however, that the caps violated the right to trial by jury by nullifying the will of the jury, which had made a factual determination as to the amount of damages that were owed to the plaintiff.