Verdicts

A Second Chance: Changed Rules Shouldn't Thwart Plaintiff's Claim

A plaintiff in a New Jersey medical malpractice case whose claims were dismissed after the New Jersey Supreme Court changed the rules on qualifications for expert witnesses midstream should have been given the chance to find a new expert, an appeals court said. Williams v. Atlanticare Regional Medical Center, 2014 N.J. Super. Unpub. LEXIS 2157 (9/3/14). Appellate Division Judges Victor Ashrafi and George Leone said in a Sept. 3 opinion that Atlantic County Superior Court Judge James Savio erred when he changed his mind after first refusing to grant summary judgment in the case. “Plaintiff should have the opportunity to seek a new expert,” the appeals court said. “The trial court should not have second-guessed itself.”

Plaintiff Veronica Williams sustained neck injuries in a January 2006 automobile accident and underwent spinal surgery in June of that year, according to the appeals court opinion. Two physicians, Dr. James Lowe and Dr. Joseph Zerbo, who belonged to the same practice, performed the surgery. Lowe is board-certified in neurological surgery and Zerbo is board-certified in orthopedic surgery. They both advertise themselves as specialists in spinal surgery.

Williams was sent home the same day the procedure was performed, but soon began having trouble breathing and noticed that her neck was swelling, the opinion said. She went to a hospital and doctors discovered she had a tear in her pharynx that had been caused by the surgery. She underwent emergency surgery to repair that tear and had to undergo another surgical procedure in 2007 because of further complications.

She filed a lawsuit against the medical center, Lowe and Zerbo and, as is required by statute, obtained an affidavit of merit. Her expert was Dr. Gregory Przybylski, who is board-certified in neurological surgery and specializes in spinal surgery. Another judge in 2010 rejected Zerbo's initial motion for summary judgment, which was based on the argument that Przybylski's specialty was not the same as Zerbo's. But in 2013, shortly before Williams' case was set to go to trial, the state Supreme Court issued its ruling in Nicholas v. Mynster . There, the court ruled that plaintiffs in medical malpractice cases must, in fact, obtain affidavits of merit from experts who specialize in the same field as the defendants, even if that means getting more than one expert. By then the case had been transferred to Savio. In August 2013, he ruled that Przybylski could not act as an expert witness against Zerbo because he was not a specialist in the same field. He also ruled, however, that Williams should be given the chance to find another expert. Nevertheless, in September of that year, on Zerbo's motion for reconsideration, Savio reversed himself and said the deadline for Williams to obtain an affidavit of merit to use against Zerbo had expired. Savio dismissed the claims against Zerbo.

Williams appealed and Ashrafi and Leone said Savio should have stuck with his first ruling. Savio, they said, “erroneously deprived” Williams of the right to retain an expert who specializes in orthopedic surgery. The judges quoted the Supreme Court's 2011 ruling in Buck v. Henry, which held that “the core purpose underlying the [affidavit of merit] statute is to require plaintiffs ' to make a threshold showing that their claim is meritorious, so that lawsuits lacking substance can be dismissed at an early stage. There is no legislative interest in barring meritorious claims brought in good faith.” Here, Ashrafi and Leone said, Williams was acting in good faith when she retained Przybylski. When the Supreme Court changed the law in Nicholas' that opened the door for Williams to find another expert, the judges said. “Because the litigation proceeded through three years of discovery and pretrial preparation, the purposes of strict enforcement of the affidavit of merit statute are not served in these circumstances,” Ashrafi and Leone said. “The ruling favorable to Zerbo just before trial was unforeseen by plaintiff and should not also deprive her of a witness and undercut her case at the last minute.” ' Michael Booth , New Jersey Law Journal

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A Second Chance: Changed Rules Shouldn't Thwart Plaintiff's Claim

A plaintiff in a New Jersey medical malpractice case whose claims were dismissed after the New Jersey Supreme Court changed the rules on qualifications for expert witnesses midstream should have been given the chance to find a new expert, an appeals court said. Williams v. Atlanticare Regional Medical Center, 2014 N.J. Super. Unpub. LEXIS 2157 (9/3/14). Appellate Division Judges Victor Ashrafi and George Leone said in a Sept. 3 opinion that Atlantic County Superior Court Judge James Savio erred when he changed his mind after first refusing to grant summary judgment in the case. “Plaintiff should have the opportunity to seek a new expert,” the appeals court said. “The trial court should not have second-guessed itself.”

Plaintiff Veronica Williams sustained neck injuries in a January 2006 automobile accident and underwent spinal surgery in June of that year, according to the appeals court opinion. Two physicians, Dr. James Lowe and Dr. Joseph Zerbo, who belonged to the same practice, performed the surgery. Lowe is board-certified in neurological surgery and Zerbo is board-certified in orthopedic surgery. They both advertise themselves as specialists in spinal surgery.

Williams was sent home the same day the procedure was performed, but soon began having trouble breathing and noticed that her neck was swelling, the opinion said. She went to a hospital and doctors discovered she had a tear in her pharynx that had been caused by the surgery. She underwent emergency surgery to repair that tear and had to undergo another surgical procedure in 2007 because of further complications.

She filed a lawsuit against the medical center, Lowe and Zerbo and, as is required by statute, obtained an affidavit of merit. Her expert was Dr. Gregory Przybylski, who is board-certified in neurological surgery and specializes in spinal surgery. Another judge in 2010 rejected Zerbo's initial motion for summary judgment, which was based on the argument that Przybylski's specialty was not the same as Zerbo's. But in 2013, shortly before Williams' case was set to go to trial, the state Supreme Court issued its ruling in Nicholas v. Mynster . There, the court ruled that plaintiffs in medical malpractice cases must, in fact, obtain affidavits of merit from experts who specialize in the same field as the defendants, even if that means getting more than one expert. By then the case had been transferred to Savio. In August 2013, he ruled that Przybylski could not act as an expert witness against Zerbo because he was not a specialist in the same field. He also ruled, however, that Williams should be given the chance to find another expert. Nevertheless, in September of that year, on Zerbo's motion for reconsideration, Savio reversed himself and said the deadline for Williams to obtain an affidavit of merit to use against Zerbo had expired. Savio dismissed the claims against Zerbo.

Williams appealed and Ashrafi and Leone said Savio should have stuck with his first ruling. Savio, they said, “erroneously deprived” Williams of the right to retain an expert who specializes in orthopedic surgery. The judges quoted the Supreme Court's 2011 ruling in Buck v. Henry, which held that “the core purpose underlying the [affidavit of merit] statute is to require plaintiffs ' to make a threshold showing that their claim is meritorious, so that lawsuits lacking substance can be dismissed at an early stage. There is no legislative interest in barring meritorious claims brought in good faith.” Here, Ashrafi and Leone said, Williams was acting in good faith when she retained Przybylski. When the Supreme Court changed the law in Nicholas' that opened the door for Williams to find another expert, the judges said. “Because the litigation proceeded through three years of discovery and pretrial preparation, the purposes of strict enforcement of the affidavit of merit statute are not served in these circumstances,” Ashrafi and Leone said. “The ruling favorable to Zerbo just before trial was unforeseen by plaintiff and should not also deprive her of a witness and undercut her case at the last minute.” ' Michael Booth , New Jersey Law Journal

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