Medical Malpractice Claims: Something You Should Know

Whether you are suffering from an illness or need surgery, one thing is for sure. Above all, you expect confidence in the doctors, nurses and other providers entrusted with your care. However, what happens when they fail you? How exactly do medical malpractice claims work?

It’s well established that medical personnel has a responsibility to provide a defined standard of care. Their failure to do so may well represent negligent actions. One example that bounces around frequently is the surgeon who operates on the left leg when it’s the right limb that needs repair. No doubt the patient was asleep and unable to complain.

Unfortunately, a select number of patients are unhappy with the outcome of their treatment and believe that this means the doctors or nurses did not do their job. Truth be told, that’s not necessarily the case. Sadly, medicine is not as predictable as one might like.

Meanwhile, that’s not to say that gut instincts should be so arbitrarily dismissed. If you suspect something has gone awry with your treatment, it makes perfect sense to meet with an experienced medical malpractice attorney to review your situation.

Although your lawyer may have some knowledge of medicine, he or she has resources that will be critical in determining the validity of your claim. For starters, it is crucial to obtain medical documentation, including actual tests and scan results.

Under New Jersey law, NJSA 2A:53A-27 calls for an Affidavit of Merit from an appropriately licensed professional attesting the “reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment…fell outside acceptable professional or occupational standards or treatment practices.”

There is one exception to the need for an Affidavit of Merit as confirmed in a recent New Jersey Appellate Court decision.

Medical Malpractice Claims: “Common Knowledge”

As you might guess, expert opinion just makes sense when dealing with prospective medical malpractice or negligence claims. After all, the idea is to weed out frivolous claims.

However, the case of Cowley v. Virtua Systems suggests there should be some flexibility in the way the statute reads. After all, the court acknowledges that “An [AOM or Affidavit of Merit] is not required in a case where the ‘common knowledge’ doctrine applies and obviates the need for expert testimony to establish a deviation from the professional’s standard of care.”

Cowley provides an example of what constitutes “common knowledge.”  According to the facts of the case, Linda Cowley was admitted to the hospital with pain. Diagnostic testing showed a number of issues, including a bowel obstruction, multiple gallstones, and some bile duct obstruction.

As a result of the diagnoses, the treating physician determined that Linda needed surgery. A nasogastric or NG tube was ordered for insertion. When Linda allegedly pulled it out a couple of days later, she also refused reinsertion. Notably, the doctor’s orders did not address whether it should be replaced in the event it became dislodged.

Herein lies part of the problem. The fact that the doctor did not address the issue was one thing. However, the nurse who was aware that the NG tube was not in place never bothered to contact the physician who ordered its insertion. Of concern is the fact that Linda aspirated and her condition severely deteriorated.

When Linda was discharged from the hospital, her records indicate that she suffered from a dozen different medical conditions. Some appeared attributable to post-surgery complications.

Ultimately, Linda sought legal counsel and filed a lawsuit, alleging a number of problems. They included the failure to diagnose, treat and properly notify medical personnel concerning the replacement of the NG tube. No Affidavit of Merit was submitted citing expert opinion.

The defendants in the matter attempted to get out of the case because of the missing AOM. However, plaintiff’s counsel suggested that an exception was appropriate based on common knowledge.

When considered by the court, the judge opined that “an AOM is not required where a “jur[or]’s common knowledge as a layperson is sufficient to enable them to use ordinary understanding and experience to determine a defendant’s negligence, without the benefit of the specialized knowledge of an expert.”

Appellate Division Speaks

The Appellate Division acknowledged that expert opinion is expected in professional negligence lawsuits, but also indicated it is not an absolute requirement.  The court cited other cases where exceptions have been made concerning the need for an Affidavit of Merit.

Meanwhile, the court expanded on the definition of common knowledge, indicating that it focuses on events that demonstrate either “obvious or extreme error.” In the Appellate Division’s opinion, the circumstances of this matter suggested obvious acts of omission. The nurse should have contacted the physician for instructions when the NG tube was removed. The case was referred back to the lower court for further consideration.

Contact Us

After three decades of personal injury experience, the Law Offices of Anthony Carbone has worked on a number of medical malpractice claims. We can help you determine the best way to proceed with your case. There is no cost to meet with us and we are not paid unless we obtain a successful recovery on your behalf. Call us now to schedule an appointment.

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