by Mark Bauman | May 19, 2014 | Medical Malpractice, New Jersey, Successes
Heather Hansen recently obtained a directed verdict in favor of an orthopedic surgeon in the Superior Court of New Jersey-Atlantic County.
The plaintiff had sustained a work-related knee injury and had an arthroscopy prior to seeing the defendant orthopedic surgeon. After failing conservative therapy, the defendant orthopedic surgeon performed a total knee replacement. In the months thereafter, plaintiff’s pain and function progressively improved and radiographs showed a well-positioned total knee replacement. However, plaintiff sought the opinion of another orthopedic surgeon for complaints of pain. Plaintiff alleged that surgeon commented that while plaintiff had excellent alignment and range of motion of the knee, he thought there may be an elevated joint line or a patella baja (an abnormally low lying patella). He later performed an arthroscopic debridement with resection of scar tissue.
Plaintiffs alleged that the defendant orthopedic surgeon negligently performed the total knee replacement by elevating the joint line which caused a patella baja. It was the defendant’s position that the surgery was appropriately performed and that there was no elevation of the joint line.
After the plaintiffs presented their case at trial, Ms. Hansen moved for a directed verdict, and successfully argued that plaintiffs’ liability expert provided only net opinions and did not provide the requisite testimony needed to establish that the defendant’s care and treatment of the plaintiff deviated from the standard of care. The Court agreed with Ms. Hansen’s arguments and granted the motion for a directed verdict.
by Mark Bauman | Nov 20, 2012 | Informed Consent, New Jersey, Successes
UPDATE: Third Circuit Upholds Dismissal on Appeal (See below)
O’Brien & Ryan attorneys Dan Ryan and Anthony P. DeMichele obtained a dismissal of all claims lodged against a kidney transplant team in New Jersey federal court.
The plaintiff had received a kidney from a co-worker, who was positive for the CMV virus, rather than his wife, who was negative for the CMV virus. After contracting the CMV virus, the plaintiff alleged that he would have chosen to receive a kidney from his wife had he been made aware of the donor’s positive CMV virus. He alleged that the defendant transplant team failed to adhere to the standard of care and failed to obtain informed consent for the procedure. He also brought a claim against the hospital where the transplant took place for fraudulent misrepresentation. The defendants denied these allegations.
Pursuant to New Jersey substantive law, the plaintiff submitted an affidavit of merit by a family physician. The defendants thereafter moved to dismiss the plaintiff’s complaint for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, et seq. The plaintiff argued that no affidavit of merit was required, or, in the alternative, the affidavit of merit by the family physician met the requirements of the statute.
The court, in its written opinion, disagreed. It found that the plaintiff’s allegations did not meet the common knowledge exception to the obligation to present expert testimony. Further, each of the plaintiff’s claims, including the claims for lack of informed consent and fraudulent misrepresentation, required proof of deviation from a professional standard, and, therefore, an affidavit of merit.
Finally, the court characterized the plaintiff’s contention that informed consent is the same across all medical disciplines as nonsense. “Certainly there is a difference between informed consent for a flu shot and informed consent for a kidney transplant.” Even if a family physician has general knowledge regarding the CMV virus, “there is no evidence that he has expertise as to how the viruses relate to the risks involved in kidney transplant surgery.” Accordingly, the plaintiff’s claims were dismissed with prejudice.
—————————————————————————————————-
Following the dismissal of his claims with prejudice by the District Court, the plaintiff filed an appeal to the United States Court of Appeals for the Third Circuit. After reviewing briefs and holding oral argument, the Third Circuit issued an opinion affirming the dismissal.
The court found that this case falls squarely within prior Third Circuit precedent which held that affidavits of merit are required to pursue informed consent cases. Despite the plaintiff’s argument that the facts of this case meet the common knowledge exception to the affidavit of merit requirement, the Third Circuit held the intervening New Jersey Supreme Court cases, including those relating to the common knowledge exception, did not alter the analysis for informed consent cases. The court also held that the plaintiff did not substantially comply with the affidavit of merit requirement. Therefore, the judgment below was upheld.
by Mark Bauman | Aug 20, 2012 | Medical Malpractice, New Jersey, Successes
Daniel F. Ryan, III obtained a defense verdict for an orthopedic spine surgeon in Camden County, New Jersey. Plaintiff presented to the orthopedic spine surgeon with symptoms and physical findings of cervical myelopathy. Cervical myelopathy is a dangerous and progressive disease of the spinal cord which if left untreated can result in catastrophic consequences for the patient. Plaintiff also presented with known problems of his lower back which were causing him pain. MRIs of the cervical and lumbar spine were obtained and the MRI of the cervical spine did show cord compression indicative of a diagnosis of cervical myelopathy. After confirmation from a neurologist that plaintiff’s symptoms were not being caused by some underlying neurologic condition (MS, Lou Gehrig’s Disease, Brain Tumor, etc.), the spine surgeon confirmed his diagnosis of cervical myelopathy and with the plaintiff’s informed consent performed an anterior cervical decompression and fusion on the plaintiff.
Plaintiff alleged that the orthopedic spine surgeon misdiagnosed him with cervical myelopathy. This alleged misdiagnosis resulted in plaintiff undergoing an unindicated anterior cervical fusion where plaintiff’s real complaints were centered around the pain emanating from his lower back.
The defense maintained that the surgeon appropriately elicited plaintiff’s symptoms of cervical myelopathy. The plaintiff had hyperreflexia, a positive Hoffmann’s sign, clumsiness with his hands and gait abnormalities, all of which offered further evidence in support of the diagnosis of cervical myelopathy. Plaintiff also had cord compression on the MRI of his cervical spine. Taking plaintiff’s symptoms and physical findings into account, the surgeon acted appropriately and saved the plaintiff from potential catastrophic future consequences related to his cervical myelopathy. After a one week trial, the jury rendered a verdict for the surgeon after deliberating for two and a half hours.
by Mark Bauman | Aug 20, 2012 | Commercial Liability / Litigation, New Jersey, Successes
Anthony P. DeMichele, along with co-counsel, Domenick Carmagnola of Carmagnola & Ritardi, LLC in Morristown, New Jersey, obtained a defense verdict for a closely held office products company and its chief executive officer in a breach of contract and conversion claim brought by the company’s former president. The lawsuit, initially filed in Philadelphia County but transferred to Bucks County where the company maintains its operations, claimed that the former president was entitled to the value of 10% stock ownership in the company, basing his right to the stock on a handshake deal he claimed he reached with the founder and chief executive officer of the company. As part of his claim, the former president argued that he paid $100,000 for the first 4% of the stock and that the remaining 6% was owed to him because his rights to obtain the remaining stock vested when he was terminated without cause. The former president contended that the acceptance of the payment created a contract for the sale of the 4% stock interest. The company and chief executive officer argued that the payment of the $100,000 was made through misrepresentations and fraud by the former president and that the company and chief executive officer were wrongfully induced into accepting the $100,000 payment. Further, the company and chief executive officer presented evidence that that the former president failed to perform his duties as president of the company, and as a result, his termination was for cause. As part of his claim, the former president presented expert witness testimony that the company was worth in excess of $70 million dollars at the time of his termination, and therefore, he was entitled to damages in excess of $7 million dollars. After a six day trial, the jury returned a unanimous defense verdict on all claims and did not award any damages to the former president.
