Med Mal News

Following trial, Hintz filed a medical malpractice claim against the Medical Center and the two doctors. The Boozers and Allstate intervened in that lawsuit, but a circuit judge dismissed those claims. They were reinstated on appeal. Judge Jay Cohen, writing for the majority, said: “Put simply, we agree with (the Boozers and Allstate) that the right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim's entire damages.”

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NJ: No Patient Recovery for Doctor's Failure to Comply with Insurance Statute

New Jersey's Supreme Court has ruled that a patient has no private right of action against a doctor for his failure to inform him that he has not obtained medical malpractice insurance coverage as required by law, but a hospital that employs the doctor is fair game. Jarrell v. Kaul, 2015 N.J. LEXIS 963 (N.J. 9/29/15).

The plaintiff in Jerrell underwent spinal fusion surgery at defendant Market Street Surgical Center in September 2005. The surgeon, Dr. Richard A. Kaul, was a board-certified anesthesiologist who carried medical malpractice insurance that specifically exempted spinal surgery from its coverage. Dr. Kaul claimed to have $500,000 in liquid assets, but he did not have a letter of credit to prove it. Since 1998, New Jersey Statutes Annotated (N.J.S.A.) 45:9-19.17 has required all physicians to maintain medical malpractice liability insurance, or to post a letter of credit in the amount of $500,000. The legislature's intent in passing the statute was to ensure that injured patients would have a means of recovering for harm caused them by medical malpractice.

Instead of improving, the plaintiff suffered additional pain following the surgery, and it worsened over time. This led to a condition called “drop foot.” The patient sought answers from a board-certified neurosurgeon, who opined that the pain and drop foot were caused by nerves that were being pinched by badly placed screws. (The State Board of Medical Examiners (BME) revoked Dr. Kaul's license to practice medicine in 2012.)

The patient and his wife brought suit against the surgical center and against Dr. Kaul, claiming he deceived them, and thus had not obtained valid informed consent from them; or that the doctor's failure to maintain insurance while operating on the patient amounted to battery. They also asserted that MSSC deviated from the accepted standard of medical care by failing to properly vet Dr. Kaul's credentials to perform spinal surgery and by permitting an uninsured practitioner to perform such procedures in its facility. The trial court dismissed the claims against the hospital because the plaintiffs did not provide an expert to testify as to the hospital's failure to adhere to the standard of care. It also dismissed the battery and informed consent claims, concluding that N.J.S.A. 45:9-19.17 provides no private right of action by a patient against a doctor or hospital. The jury found Dr. Kaul guilty of medical malpractice for improperly performing the spinal fusion procedure.

After intermediate appeal, the case moved to New Jersey's Supreme Court, where the plaintiffs got partial satisfaction on the question of New Jersey's statutory insurance requirement.

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Subrogation Claims Against Medical Care Providers Reinstated

A Florida appeals court has reversed a trial court's dismissal of claims made by third parties against medical care providers, after concluding that they had a legitimate interest in not paying an injured plaintiffs damages attributable not to the negligent operation of a motor vehicle, but to medical malpractice. Allstate Insurance Co. v. Theodotou, 2015 Fla. App. LEXIS 11187 (Fla. 5th DCA 7/24/15).

The plaintiff in the underlying case, Benjamin Edward Hintz, was struck by a car driven by Emily Boozer while riding his scooter. Boozer and her father (who owned car) were found liable for damages of more than $11 million. Their auto insurer, Allstate, paid the policy limit of $1.1 million, but the remainder is still unpaid. During trial, the the defendants had attempted to present evidence that Hintz was negligently treated for his injuries by two doctors at Holmes Regional Medical Center, but they were prevented.

Following trial, Hintz filed a medical malpractice claim against the Medical Center and the two doctors. The Boozers and Allstate intervened in that lawsuit, but a circuit judge dismissed those claims. They were reinstated on appeal. Judge Jay Cohen, writing for the majority, said: “Put simply, we agree with (the Boozers and Allstate) that the right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim's entire damages.”

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NJ: No Patient Recovery for Doctor's Failure to Comply with Insurance Statute

New Jersey's Supreme Court has ruled that a patient has no private right of action against a doctor for his failure to inform him that he has not obtained medical malpractice insurance coverage as required by law, but a hospital that employs the doctor is fair game. Jarrell v. Kaul, 2015 N.J. LEXIS 963 (N.J. 9/29/15).

The plaintiff in Jerrell underwent spinal fusion surgery at defendant Market Street Surgical Center in September 2005. The surgeon, Dr. Richard A. Kaul, was a board-certified anesthesiologist who carried medical malpractice insurance that specifically exempted spinal surgery from its coverage. Dr. Kaul claimed to have $500,000 in liquid assets, but he did not have a letter of credit to prove it. Since 1998, New Jersey Statutes Annotated (N.J.S.A.) 45:9-19.17 has required all physicians to maintain medical malpractice liability insurance, or to post a letter of credit in the amount of $500,000. The legislature's intent in passing the statute was to ensure that injured patients would have a means of recovering for harm caused them by medical malpractice.

Instead of improving, the plaintiff suffered additional pain following the surgery, and it worsened over time. This led to a condition called “drop foot.” The patient sought answers from a board-certified neurosurgeon, who opined that the pain and drop foot were caused by nerves that were being pinched by badly placed screws. (The State Board of Medical Examiners (BME) revoked Dr. Kaul's license to practice medicine in 2012.)

The patient and his wife brought suit against the surgical center and against Dr. Kaul, claiming he deceived them, and thus had not obtained valid informed consent from them; or that the doctor's failure to maintain insurance while operating on the patient amounted to battery. They also asserted that MSSC deviated from the accepted standard of medical care by failing to properly vet Dr. Kaul's credentials to perform spinal surgery and by permitting an uninsured practitioner to perform such procedures in its facility. The trial court dismissed the claims against the hospital because the plaintiffs did not provide an expert to testify as to the hospital's failure to adhere to the standard of care. It also dismissed the battery and informed consent claims, concluding that N.J.S.A. 45:9-19.17 provides no private right of action by a patient against a doctor or hospital. The jury found Dr. Kaul guilty of medical malpractice for improperly performing the spinal fusion procedure.

After intermediate appeal, the case moved to New Jersey's Supreme Court, where the plaintiffs got partial satisfaction on the question of New Jersey's statutory insurance requirement.

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