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Medical MalpracticeColumnsLitigationLJN NewslettersMedical Malpractice Law & Strategy

Verdicts

By ljnstaff |
November 02, 2017

A Good-Faith Effort Is All That's Required

In an unpublished opinion, a two-judge panel of New Jersey's Appellate Division recently reinstated a medical malpractice case that had been dismissed for want of an expert. Judges Richard Hoffman and Susan Reisner pointed to 2010's state Supreme Court ruling in Ryan v. Renny, 203 N.J. 37 (2010), which interpreted 2004's New Jersey Medical Care Access and Responsibility and Patients First Act (PFA) to require only that plaintiffs make a good-faith effort to find a qualified expert to back their claims; even if ultimately unsuccessful, the PFA provided a “safety valve” to those who tried to find a medical expert practicing in the same specialty as the defendant, so that their medical malpractice suits need not necessarily be dismissed.

Kim Glucker underwent a colonoscopy in 2011, performed by Dr. Robert Barbalinardo of Montclair Surgical Associates. She suffered a ruptured spleen during the procedure and had to have it removed. Glucker and her husband sued the doctor and his practice, and obtained affidavits of merit from a general surgeon and from a gastroenterologist, but one of these experts later withdrew from the case because of personal health issues, while the other was disqualified by a judge. Glucker was able to show that her attorney then contacted over 100 more medical professionals in an effort to secure a new expert opinion, but to no avail.

Quoting Ryan, the appellate judges in Glucker v. Barbalinardo determined that the plaintiff's case could go forward because “the very existence of the waiver makes it obvious to us that the Legislature did not intend a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert.”

A Good-Faith Effort Is All That's Required

In an unpublished opinion, a two-judge panel of New Jersey's Appellate Division recently reinstated a medical malpractice case that had been dismissed for want of an expert. Judges Richard Hoffman and Susan Reisner pointed to 2010's state Supreme Court ruling in Ryan v. Renny , 203 N.J. 37 (2010), which interpreted 2004's New Jersey Medical Care Access and Responsibility and Patients First Act (PFA) to require only that plaintiffs make a good-faith effort to find a qualified expert to back their claims; even if ultimately unsuccessful, the PFA provided a “safety valve” to those who tried to find a medical expert practicing in the same specialty as the defendant, so that their medical malpractice suits need not necessarily be dismissed.

Kim Glucker underwent a colonoscopy in 2011, performed by Dr. Robert Barbalinardo of Montclair Surgical Associates. She suffered a ruptured spleen during the procedure and had to have it removed. Glucker and her husband sued the doctor and his practice, and obtained affidavits of merit from a general surgeon and from a gastroenterologist, but one of these experts later withdrew from the case because of personal health issues, while the other was disqualified by a judge. Glucker was able to show that her attorney then contacted over 100 more medical professionals in an effort to secure a new expert opinion, but to no avail.

Quoting Ryan, the appellate judges in Glucker v. Barbalinardo determined that the plaintiff's case could go forward because “the very existence of the waiver makes it obvious to us that the Legislature did not intend a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert.”

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