New Jersey Medical Malpractice Law 2022

by Jonathan H. Lomurro, Gary L Riveles, Abbott S. Brown

Overview

New Jersey Medical Malpractice Law provides a comprehensive, reader-friendly guide for all medical malpractice practitioners. Discretely focused subheadings allow users to precisely pinpoint relevant discussions, and footnotes highlight helpful resources and explanations. The chapters address issues as they commonly arise through the litigation process—from considering the elements of a malpractice cause of action, through investigating and preparing a case, to managing trial issues.

Chapters are organized to address the issues as they commonly arise for the practicing attorney through the litigation process, from evaluation of potential claims and consideration of the elements of a malpractice cause of action, through pretrial investigation and case preparation, and finally, to the trial. Footnotes provide helpful explanatory information and resources, and add to the ease of finding answers quickly.  Descriptive and discretely focused subheadings allow the reader to pinpoint precisely the discussion most relevant to his or her concerns. Practice pointers appear at the end of each chapter to aid in navigating complex medical malpractice cases.

Chapters 1 and 2 discuss the first essential component of medical malpractice causes of action, the breach of a health care provider’s duty of care or failure to obtain informed consent. Chapter 3 addresses related but distinct causes of action such as assault and battery, fraud, breach of contract, medical records alteration or destruction and sexual misconduct. Chapters 4 and 5 discuss the second and third essential components of malpractice cases, causation and damages. Chapter 4 has been revised to keep pace with the evolving complex case law governing proof of proximate causation in cases involving pre-existing injuries, delayed cancer diagnoses and avoidable consequences. Chapter 5 discusses damages claims in general, and those particular to malpractice and wrongful death causes of action.

Chapters 6 through 9 deal with issues related to pretrial proceedings and trial of malpractice cases, including pre-suit investigation of such claims. Chapter 7 has been revised to discuss the rapidly changing case law regarding the affidavit of merit, pretrial discovery, and presents an extremely thorough discussion of expert testimony, particularly as it evolves through the implementation of the New Jersey Medical Care Access and Responsibility and Patients First Act. These chapters also examine the pleadings, defenses including the statute of limitations, voir dire and jury charges specific to malpractice cases. Finally, Chapter 10 provides a thorough discussion of the federal and New Jersey statutes and regulations regarding electronic medical records.

Product Details

ISBN-13:	9781588525291
Publisher:	ALM Media Properties, LLC
Publication date:	06/28/2021
Sold by:	Barnes & Noble
Format:	eBook
Pages:	1326
File size:	2 MB

About the Author

Abbott S. Brown

Abbott S. Brown is a Certified Civil Trial Attorney whose practice focuses on medical and legal malpractice, products liability and insurance litigation.

Abbott S. Brown is a partner with Lomurro, Munson, Comer, Brown & Schottland, LLC. in Freehold, New Jersey.

Mr. Brown received his J.D. in 1978 from Rutgers University School of Law, Newark. He is admitted to practice in New Jersey and before the U.S. District Court for the Districts of New Jersey and the Eastern and Southern Districts of New York, and the Second and Third Circuit Courts of Appeal. Mr. Brown has been counsel for one or more bar associations as amicus curiae in 12 published malpractice decisions, including Cornblatt v. Barow, 153 N.J. 218 (1998), Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), and Nicholas v. Mynster, 213 N.J. 463 (2013).

Mr. Brown served on the Supreme Court Committee on Jury Selection and Voir Dire from 2004-2010, the Supreme Court Committee on Model Civil Jury Charges from 1998-2009, where he served on the medical malpractice sub-committee, and the Board of Governors of the New Jersey Association for Justice (formerly the Association of Trial Lawyers of America - New Jersey) from 1996 to 2011. He has also served on the District V-B Ethics Committee, as Chair of the Medical Malpractice Committee of the New Jersey State Bar Association and on the Special Committee on Implementation of a Pilot Medical Malpractice Mediation project. Mr. Brown was an Adjunct Professor at Seton Hall University School of Law in the Health Law and Policy Program, teaching medical malpractice law between 1998 and 2012. He has also lectured at the New Jersey Judicial College and delivered more than 70 lectures for N.J.I.C.L.E., the Association of Trial Lawyers of America, the New Jersey Association for Justice, the New  Jersey State Bar Association, and other organizations.

Mr. Brown is also the author of New Jersey Medical Malpractice Cases, 3rd Ed. (NJICLE 2009) and a chapter titled “Medical Experts” in New Jersey Trial and Evidence Law (NJICLE 2003).

He has written more than 35 articles for numerous professional publications, and had opinion or editorials published in the New York Times, The Star-Ledger, and the New Jersey Law Journal. Mr. Brown was awarded the Gold Medal for Distinguished Service by the Association of Trial Lawyers of America – New Jersey in April 2001. He was named as one of New Jersey’s “Top Ten Lawyers” in 2006 and named one of New Jersey’s “Top 100 Lawyers” in 2005 and every year since 2007. In April 2012, Mr. Brown was recognized by NJBIZ as one of the 50 Most Powerful People in New Jersey Healthcare.

Jonathan H. Lomurro
Jonathan H. Lomurro is a certified civil trial attorney and partner with Lomurro, Munson, Comer, Brown & Schottland, P.A., where he handles matters relating to medical malpractice and personal injury.

Gary L. Riveles
Gary L. Riveles, is a certified civil trial attorney whose practice focuses on the defense of medical malpractice, products and premises liability, and healthcare-related employment issues.

Table of Contents

Table of Contents
Chapter 1: Duties of Health Care Providers
I DUTY OF CARE
1-1 THE GENERALLY ACCEPTED STANDARD OF CARE
1-1:1 Introduction
1-1:2 “Generally Accepted” and “Reasonably Prudent” Standards Distinguished
1-1:3 Not All Deviations From the Standard of Care Constitute Malpractice
1-2 THE ROLE OF THE PHYSICIAN’S JUDGMENT
1-2:1 Physician’s Exercise of Reasonable Judgment Is Not Malpractice
1-2:2 Evolution of the Judgment Charge
1-2:3 Limitations on Applicability of the Judgment Charge
1-2:4 Specific Cases Addressing the Judgment Charge
1-2:5 Need for Informed Consent Charge When Judgment Charge Is Given
1-3 PERSONAL STANDARDS DO NOT ESTABLISH THE STANDARD OF CARE
1-4 DUTIES OF SPECIFIC MEDICAL PROVIDERS
1-4:1 Duty of Examining or Consulting Physician Acting for Third Party
1-4:1.1 General Duty of Care
1-4:1.2 Duty to Report Findings to Patient
1-4:1.2a Duty of Examining Physician
1-4:1.2b Duty of Consulting Physician Not Examining Patient
1-4:1.2c Duty of Third Party to Disclose Test Results
1-4:1.3 Duty to Persons Other Than Patient
1-4:2 Duty of a Specialist
1-4:3 Standard of Care for Hospital Resident Physician
1-4:4 Duty of a Supervisor
1-4:5 Duty of a Supervisor of Physician Assistants
1-4:6 Duty of a Supervisor of Nurses
1-4:7 The Scope of Chiropractic Care
1-4:8 Duty of Emergency Department
1-4:9 Duty of Nursing Home
1-4:10 Non-Delegable Duty of Jail or Prison
1-5 DUTIES IN SPECIFIC CIRCUMSTANCES
1-5:1 Duty Regarding Treatment of Body/Deceased
1-5:2 Duty to Elderly and Infirm Patient
1-5:3 Duty to Suicidal Patient
1-6 LIABILITY OF THIRD PARTIES FOR PHYSICIAN’S BREACH OF DUTY OF CARE
1-6:1 Duty of a Credentialer
1-6:2 Duty of Employer/Respondeat Superior
1-6:2.1 Employment Relationship Required
1-6:2.2 Employee Need Not Be Party
1-6:2.3 Employer Not Liable for Employee Conduct Outside Scope of Employment
1-6:2.4 Limitation of Liability
1-6:3 Apparent Employment of Medical Professionals
1-6:4 Liability of Referring Physician
1-6:5 Liability of Workers’ Compensation Carrier for Examining Physician’s Negligence
1-7 TERMINATION OF THE DUTY OF CARE
II OTHER RELATED DUTIES
1-8 THE DUTY OF CONFIDENTIALITY
1-8:1 Generally
1-8:2 Exceptions to/Waiver of Confidentiality
1-8:2.1 Personal Injury Claim Waives Confidentiality
1-8:2.2 Use and Misuse of a Subpoena
1-8:3 Duty to Keep AIDS Diagnosis Confidential
1-8:4 Duty to Keep Psychiatric Records Confidential
1-8:4.1 Privilege Akin to Attorney-Client Privilege
1-8:4.2 Exceptions to Confidentiality of Psychiatric Records
1-8:4.2a Defense to Crime/Mental State at Issue/Best Interests of Children
1-8:4.2b Persons at Risk of Harm
1-8:4.3 Improper Use of Subpoena for Psychiatric Records
1-9 THE DUTY TO PROVIDE GENETIC COUNSELING
1-10 THE DUTY TO TERMINATE CARE
1-11 THE DUTY OF TREATING PHYSICIAN TO TESTIFY OR PROVIDE LITIGATION SUPPORT
1-12 THE DUTY TO MAINTAIN INSURANCE
1-13 PRACTICE POINTERS

Chapter 2: Doctrines of Informed Consent and Refusal
I DUTY TO OBTAIN INFORMED CONSENT OR REFUSAL
2-1 THE FULLY INFORMED PATIENT
2-1:1 Physician’s Common Law Duty to Provide Information
2-1:2 Code Provisions Require Written Informed Consent
2-2 ACTIONS FOR BREACH OF DUTY TO OBTAIN INFORMED CONSENT OR REFUSAL
 2-2:1  Elements of Cause of Action for Breach of Duty to Obtain Informed Consent
2-2:2 Standard for Duty to Disclose
2-2:2.1 Professional Standard Abandoned
2-2:2.2  Reasonable Patient Standard
2-2:2.3  Informed Consent Regarding Prescription Drugs
2-2:2.4  Only Material Risks Need Be Disclosed
2-2:3 Duty to Disclose Applicable to Non-Invasive Procedures or Non-Treatment
2-2:4  Duty Regarding Informed Refusal
2-2:5  Duty to Inform of Available Diagnostic Testing
 2-2:6  The Relationship Between Medical Judgment and Informed Consent
2-2:7  No Duty to Disclose Unavailable Options
2-2:8 Distinguishing Negligent Treatment/Failure to Diagnose from Failure to Disclose
2-2:8.1  Negligent Treatment/Diagnosis
2-2:8.2  Failure to Disclose Distinguished
2-2:8.3 Use of Informed Consent Form to Negate Negligence Prohibited
2-2:9 Immunity/No Duty to Obtain Informed Consent in Emergencies
2-2:10  Disclosure Regarding FDA Approvals
2-2:11  Disclosures Regarding Physicians
2-2:11.1  Duty to Disclose Physician’s HIV/AIDS
2-2:11.2  Duty Regarding Disclosure of Credentials
2-2:11.3  Duty to Identify Specific Physician Performing Service
2-2:11.4  No Duty to Disclose Risks of Treatment by Other Physicians
2-2:12  Liability to Third Parties for Breach of Duty to Obtain Informed Consent
2-2:12.1 Child’s Cause of Action for Breach of Duty to Disclose Risks to Mother
2-2:12.2 Duty to Advise of Test Results Affecting Patient and Third Parties
II PROCEDURAL ISSUES
2-3 PLEADING INFORMED CONSENT
2-4 A DIRECTED VERDICT MAY BE WARRANTED WHERE DEFENDANT CONCEDES A MATERIAL RISK WAS NOT DISCLOSED
2-5 ROUTINE DISCLOSURE AS EVIDENCE OF INFORMATION DISCLOSED TO PATIENT
2-6 WHETHER PATIENT WOULD DECLINE TREATMENT IS ISSUE FOR THE JURY
2-7 JURY INTERROGATORIES IN INFORMED CONSENT CASE
III ASSAULT AND BATTERY DISTINGUISHED
2-8 INTRODUCTION
2-9 “GHOST SURGERIES”: PATIENT NOT INFORMED WHO WILL PERFORM SERVICES
2-10 PERFORMING DIFFERENT SURGERY THAN DESCRIBED
2-11 NO PROOF OF A DEVIATION FROM THE STANDARD OF CARE REQUIRED FOR BATTERY
2-12 EXCEEDING CONDITIONS OF CONSENT CONSTITUTES BATTERY
2-13 PRACTICE POINTERS

Chapter 3: Other Causes of Action
I TORT CLAIMS
3-1 STRICT LIABILITY IN TORT
3-2 ABANDONMENT
II FRAUD CLAIMS
3-3 FRAUD
3-3:1 Elements of Cause of Action
3-3:2 Benefits/Burdens of Pleading Fraudulent Concealment
3-3:3 Consumer Fraud
3-3:4 Misrepresentation of Credentials
3-3:5 Misrepresentations Concerning Treatment
III CONTRACT AND OTHER CLAIMS
3-4 BREACH OF CONTRACT
3-5 FALSE IMPRISONMENT
3-6 THE MISHANDLING OF A CORPSE
3-7 UNAUTHORIZED AUTOPSY
3-8 FALSE DIAGNOSIS OF DISEASE
3-9 ALTERATION OR DESTRUCTION OF MEDICAL RECORDS
3-10 PUBLIC DISCLOSURE OF PRIVATE FACTS
3-11 SEXUAL MISCONDUCT
3-12 PRACTICE POINTERS

Chapter 4: Proximate Causation
I INTRODUCTION
4-1 OVERVIEW
4-2 REASONABLE DEGREE OF MEDICAL PROBABILITY
II PRE-EXISTING CONDITIONS
4-3 CAUSATION ISSUES RAISED BY PRE-EXISTING CONDITIONS
4-3:1 Introduction
4-3:2 Defining What Constitutes a Pre-Existing Condition
4-3:2.1 Condition That Could Evolve into Ultimate Condition Absent Negligence
4-3:2.2 Condition Being Treated to Delay Outcome
4-3:2.3 Addiction as Pre-Existing Condition
4-3:3 Defendant’s Burden to Apportion Damages Caused by Pre-Existing Condition
4-3:4 Evers, Scafidi and the “Increased Risk/Substantial Factor” Test
4-3:4.1 Development of “Increased Risk/Substantial Factor” Test
4-3:4.2 Defining “Substantial Factor”
4-3:4.3 Retroactive Application of Scafidi
4-3:4.4 Application of Scafidi to Specific Cases
4-3:4.5 Explaining Limitation of Scafidi Charge
4-3:4.6 Issuing Ultimate Outcome Jury Charge with Scafidi Charge
4-3:5 Failure to Perform Diagnostic Test Which Would Have Disclosed Pre-Existing Condition
4-3:6 Apportionment of Pain and Suffering
4-4 LOSS OF A CHANCE
4-5 AGGRAVATION OF A PRIOR INDEPENDENT TORT
4-6 PAIN AND SUFFERING
III AVOIDABLE CONSEQUENCES/COMPARATIVE NEGLIGENCE
4-7 EFFECT OF AVOIDABLE CONSEQUENCES/COMPARATIVE NEGLIGENCE ON PROOF OF CAUSATION
4-7:1 Introduction
4-7:2 Distinction Between Patient’s Pre-Treatment and Post-Treatment Conduct
4-7:3 Distinguishing Avoidable Consequence and Superceding Cause
4-7:4 Cases Limiting Application of Avoidable Consequence/Comparative Negligence
4-7:5 Applicability to Informed Consent Cases
IV CAUSATION IN INFORMED CONSENT CASES
4-8 PROOF OF PROXIMATE CAUSATION IN THE INFORMED CONSENT CASE
4-9 FAILURE TO WARN REGARDING PRESCRIPTION DRUG RISKS
4-10 FAILURE TO FULLY INFORM PATIENT REGARDING PROCEDURE AND ALTERNATIVES
4-11 PRACTICE POINTERS

Chapter 5: Damages in Medical Malpractice Cases
I TYPES OF DAMAGES
5-1 INTRODUCTION
5-2 DAMAGES FOR DELAY IN TREATMENT
5-3 PAIN AND SUFFERING
5-4 HEDONIC DAMAGES
5-5 DISABILITY
5-6 ECONOMIC LOSS
5-7 MEDICAL BILLS
5-8 EMOTIONAL DISTRESS DAMAGES
5-8:1 Generally
5-8:2 Emotional Distress of Relatives
5-8:2.1 Portee and Elements of Claim
5-8:2.2 Application of Portee in Malpractice Cases
5-8:2.3 Claims for Mistreatment of Body/Corpse
5-8:2.4 Misdiagnosis Generally Does Not Satisfy Portee Factors
5-8:2.5 Emotional Distress of Parents for Loss of a Child
5-8:2.6 Relatives Must Connect Malpractice to Injury to Recover Emotional Distress Damages
II DAMAGES IN CASES INVOLVING A FETUS OR CHILD
5-9 DAMAGES INVOLVING A FETUS
5-9:1 Injuries to a Fetus/Preconception Injuries
5-9:2 Loss of a Fetus
5-10 INJURIES TO A CHILD
5-11 EFFECT OF SETTLEMENT WITH INFANT WITHOUT JUDICIAL APPROVAL
III WRONGFUL BIRTH/LIFE CLAIMS
5-12 WRONGFUL BIRTH
5-12:1 Introduction
5-12:2 Distinguishing Wrongful Life Claims in New Jersey
5-12:3 Development of Wrongful Birth Claim
5-12:4 Measure of Damages for Wrongful Birth
5-12:4.1 Emotional Distress of Parents
5-12:4.2 Damages for Extraordinary Costs of Care
5-12:5 Distinguishing Wrongful Birth and Informed Consent Claims: Medical Causation Not Required
5-12:6 Preconception Negligence
5-12:7 Superceding Cause/Avoidable Consequences in Wrongful Birth Cases
5-12:8 Emotional Distress Damages for Wrongful Birth
5-12:9 Damages Not Reduced by Joy of Raising Child
5-12:10 No Claim for Grandparents, Siblings
IV DAMAGES IN WRONGFUL DEATH CASES
5-13 WRONGFUL DEATH CLAIMS
5-13:1 Generally
5-13:2 Wrongful Death of a Child
5-13:3 Wrongful Death After a Prior Medical Malpractice Suit
V  OTHER DAMAGES ISSUES
5-14 PUNITIVE DAMAGES
5-15 PER QUOD
5-16 ADDITUR/REMITTITUR OF DAMAGES
5-17 HIGH-LOW AGREEMENTS
5-17:1 High-Low Agreements and Worker’s Compensation Liens under N.J.S.A. 34:15-40
5-17:2 High-Low Agreements and Physician Reporting Requirements
5-18 OFFER TO TAKE JUDGMENT
5-19 PRACTICE POINTERS

Chapter 6: Pre-Suit Investigation of Medical Malpractice Claim
I MEDICAL RECORDS
6-1 THE DUTY TO MAINTAIN ACCURATE AND TRUE MEDICAL RECORDS
6-2 STATUTORY AND ADMINISTRATIVE CODE REGULATIONS REGARDING MEDICAL RECORDS
6-3 LEGIBILITY REQUIREMENTS FOR MEDICAL RECORDS
II INCIDENT, INVESTIGATION AND OTHER REPORTS
6-4 INCIDENT REPORTS
6-5 THE PATIENT SAFETY ACT, N.J.S.A. 26:2H-12.23
6-6 PATIENT SAFETY ACT’S IMPACT ON DOCUMENT DISCOVERY
6-7 DISCOVERABILITY OF FACTS CONTAINED IN PATIENT SAFETY ACT
6-8 PEER REVIEW/COMMITTEE REPORTS
6-9 SENTINEL EVENT REPORTS
6-10 INTERVIEWS OF HEALTH CARE PROFESSIONALS
III DECLINING A MEDICAL MALPRACTICE CASE
6-11 ADVISING THE CLIENT
6-12 PRACTICE POINTERS

Chapter 7: Expert Testimony and Learned Treatises
I EXPERT TESTIMONY IN MALPRACTICE CASES
7-1 INTRODUCTION
7-2 REQUIREMENTS FOR EXPERT TESTIMONY
7-2:1 Expert Establishes Standard of Care and Deviation Therefrom
7-2:2 Content of Expert Testimony/Report
7-2:2.1 Introduction
7-2:2.2 Clear, Specific Opinions
7-2:2.3 Reasonable Medical Probability
7-2:3 Importance of Expert Testimony
II QUALIFICATION OF EXPERTS AND THE PATIENTS FIRST ACT
7-3 QUALIFICATION OF EXPERT WITNESSES
7-3:1 Introduction
7-3:2 Qualification of Expert Witnesses Prior to New Jersey Medical Care Access and Responsibility and Patients First Act
7-3:2.1 Continuing Applicability of Pre-Act Common Law for Cases Arising Prior to 2004
7-3:2.2 Expert in Different Specialty May Qualify in Pre-2004 Cases
7-3:2.3 Examples of Qualified Experts in Pre-2004 Cases
7-3:2.4 Examples of Experts Not Qualified in Pre-2004 Cases
7-3:3 Qualification of Expert Witnesses After the New Jersey Medical Care Access and Responsibility and Patients First Act
7-3:3.1 Same Specialty Required for Expert
7-3:3.2 Applicability of Same Specialty Requirement
7-3:3.3 The Specialties and Sub-specialties Recognized by the American Board of Medical Specialties or the American Osteopathic Association
7-3:3.3a Recognized Specialties
7-3:3.3b ABMS Recognized Specialties
7-3:3.3c AOA Recognized Specialties
7-3:3.3d Scope of Practice for Specialties
7-3:3.3e Overlap Between Specialties
7-3:3.4 Constitutionality Challenged
7-3:3.5 Amendment to Affidavit of Merit
7-3:3.6 Equivalently Qualified
7-3:3.7 Determining the Qualifications of Medical Malpractice Liability Experts
7-3:3.8 N.J.S.A. 2A:53A-41(a)(1)
7-4 THE PATIENTS FIRST ACT’S IMPACT ON OTHER MEDICAL MALPRACTICE ISSUES
7-4:1 Introduction
7-4:2 Statute of Limitations Amended
7-4:3 Affidavit of Noninvolvement
7-4:4 Malpractice Premium Increases Barred if Case Dismissed Within 180 Days
7-4:5 Remittitur and Additur
7-4:6 Good Samaritan Immunity
7-4:7 Reimbursement of Non-Economic Damages
7-4:8 Malpractice Insurance Policies
7-4:9 Applicability and Effective Date of The Patients First Act
7-4:10 New Jersey Health Care Consumer Information Act
III THE AFFIDAVIT OF MERIT
7-5 OVERVIEW
7-5:1 Professions Covered
7-5:1.1 Qualification of Dentists, Nurses and Other Medical Professionals
7-5:2 Statutory Requirements
7-5:2.1 Time for Service
7-5:2.2 Failure to Produce Necessary Records or Other Information
7-5:2.3 Minimum Requirements
7-5:2.4 Qualifications of the Affiant
7-6 JUDICIAL INTERPRETATION OF AFFIDAVIT OF MERIT STATUTE
7-6:1 Constitutionality
7-6:2 Supreme Court’s Initial Construction: Hall and Cornblatt
7-6:2.1 In re Hall: Purpose of Affidavit of Merit Statute
7-6:2.2 Cornblatt v. Barow: Affidavit of Merit Not Required for Malpractice Occurring Pre-Statute
7-7 APPLICATION OF THE AFFIDAVIT OF MERIT REQUIREMENTS
7-7:1 Introduction
7-7:2 Who is Entitled to an Affidavit of Merit?
7-7:2.1 Which Licensed Professionals are Entitled to Affidavit of Merit?
7-7:2.2 Is an Affidavit of Merit Needed for Professional Corporations?
7-7:3 Who is Qualified to Render the Affidavit of Merit?
7-7:3.1 Same Specialty Requirement
7-7:3.2 Waiver of Same Specialty Requirement
7-7:4 What Information Must be Contained in the Affidavit of Merit?
7-7:5 Does the Affidavit of Merit Statute Require Identification of the Defendants Who Deviated from the Standard of Care?
7-7:6 When Must the Affidavit of Merit be Filed?
7-7:7 What Constitutes Substantial Compliance with the Affidavit of Merit Statute?
7-7:7.1 Substantial Compliance Concept Explained
7-7:7.2 Applying the Substantial Compliance Concept
7-7:7.3 The Affidavit of Merit Statute Should Not Be Mechanically Applied
7-7:7.4 Dismissal with Prejudice Absent Extraordinary Circumstances
7-7:7.5 Failure to Put Expert Under Oath Renders Affidavit Non-Compliant
7-7:8 Does the Doctrine of Waiver or Estoppel Apply to the Affidavit of Merit Statute?
7-7:8.1 Failure to Promptly Seek Dismissal Estops Defendant
7-7:8.2 The Ferreira Conference
7-7:9 Does the Failure to Hold a Ferreira Conference Extend the Time to Serve an Affidavit of Merit?
7-7:10 Can the Ferreira/Affidavit of Merit Conference be Waived?
7-7:11 Is the Affidavit of Merit Waived if the Defendant Withholds Medical Records Needed to Prepare the Affidavit?
7-7:11.1 Records Having Substantial Bearing on Preparation of Affidavit of Merit
7-7:11.2 Records Not Needed for Affidavit
7-7:12 The Affidavit of Merit Statute Is Not Tolled Due to the Minority of an Infant Plaintiff
7-7:13 Is an Affidavit of Merit Required in Common Knowledge or Res Ipsa Cases?
7-7:14 Is an Affidavit of Merit Required for Informed Consent Cases?
7-7:15 Does the Affidavit of Merit Statute Apply to Crossclaims or Counterclaims?
7-7:15.1 Applicability to Crossclaims
7-7:15.2 Applicability to Third-Party Malpractice Complaint
7-7:15.3 Applicability to Counterclaim
7-7:16 Does the Affidavit of Merit Statute Apply to ­Non-Malpractice Claims, Such as Contract or Assault and Battery Claims?
7-7:17 Is an Affidavit of Merit Needed to Establish Causation or Damages?
7-7:18 Should the Affidavit of Merit Statute Ever be Permitted to be Used to Defeat Meritorious Claims?
IV PRESENTING EXPERT TESTIMONY AND REPORTS
7-8 THE FOUNDATION FOR EXPERT TESTIMONY
7-8:1 Testimony Based on Knowledge, Training, Experience or Education
7-8:2 Theories Not Yet Generally Accepted
7-8:3 Rule 104 Hearing on Admissibility
7-8:4 Use of Multiple Experts
7-8:5 Failure To Call an Expert Witness at Trial
7-9 THE REQUIREMENTS OF THE EXPERT REPORT
7-10 THE NET OPINION RULE
7-11 THE COMMON KNOWLEDGE DOCTRINE
7-11:1 Doctrine Established in Cases of Foreign Objects Left Behind in Surgery
7-11:2 Cases in Which Common Knowledge Found
7-11:2.1 Generally
7-11:2.2 An Extreme Application of the Common Knowledge Doctrine
7-11:2.3 Common Knowledge Regarding Communication of Test Results
7-11:3 Cases in Which Common Knowledge Doctrine Was Rejected
7-12 RES IPSA LOQUITUR
7-12:1 Required Elements
7-12:2 Expert Testimony May Still Be Required for Res Ipsa Loquitur in Certain Situations
7-12:3 Examples Where Res Ipsa Loquitur Applied
7-12:4 Examples Where Res Ipsa Loquitur Not Applied
7-12:5 Conditional Application of Res Ipsa Doctrine
7-13 ANDERSON V. SOMBERG AND COLLECTIVE JOINT RESPONSIBILITY
7-14 EXPERT TESTIMONY IN INFORMED CONSENT CASES
7-15 COMPELLING EXPERT TESTIMONY
V LEARNED TREATISES AND OTHER SOURCES
7-16 THE JACOBER RULE/LEARNED TREATISES
7-16:1 Treatises
7-16:2 Manufacturers’ Technical Guides and Package Inserts
7-17 THE PHYSICIANS’ DESK REFERENCE AND PACKAGE INSERTS
7-18 HOSPITAL PROTOCOLS AND PROCEDURE MANUALS
7-19 RECOMMENDATIONS OF PROFESSIONAL MEDICAL BOARDS OR ORGANIZATIONS
7-20 RECOMMENDATIONS OF THE AMERICAN MEDICAL ASSOCIATION
7-21 STATUTES AND ADMINISTRATIVE CODES
7-21:1 Generally
7-21:2 Statute as Evidence of Standard of Care
7-21:3 Examples of Statute Held Not Evidence of Standard
7-22 DISCOVERY OF TREATISES TO BE UTILIZED AS EVIDENCE OF THE STANDARD OF CARE
VI REFUSAL OR INABILITY OF EXPERT TO TESTIFY
7-23 REMEDIES FOR FAILURE OF EXPERT WITNESS TO TESTIFY
7-24 PRACTICE POINTERS

Chapter 8: Pleadings, Defenses and Voir Dire in Medical Malpractice Cases
I INTRODUCTION
8-1 OVERVIEW
II PARTIES
8-2 IDENTIFYING ALL CLAIMS AS TO ALL PARTIES
8-2:1 The Entire Controversy Doctrine
8-2:2 Fictitious Defendant Rule
8-3 SERVICE ON ABSENT DEFENDANTS
III DEFENSES
8-4 COMPARATIVE NEGLIGENCE AND AVOIDABLE CONSEQUENCES
8-5 AFFIDAVIT OF NONINVOLVEMENT
8-6 STATUTE OF LIMITATIONS
8-6:1 Generally
8-6:2 The Discovery Rule
8-6:2.1 Development of the Discovery Rule
8-6:2.2 Filing within Two Years from the Date of Discovery
8-6:2.3 Discovery Rule Triggered by Knowledge of Fault
8-6:2.4 Fact of Injury, Not Injury’s Extent, Triggers Statute of Limitations
8-6:2.5 Increased Risk of Harm, Latent Disease, Cancer Recurrence: Statute of Limitations Begins to Run Only After Harm Occurs
8-6:2.6 Discovery of Proper Defendant
8-6:2.6a Amended Complaint Relates Back
8-6:2.6b Due Diligence Required
8-6:2.7 Application of Discovery Rule to Cases, Generally
8-6:3 Statute of Limitations in Informed Consent Cases
8-6:4 Failure to Advise, Concealment of Malpractice and the Statute of Limitations
8-6:5 Continuing Treatment and the Statute of Limitations
8-6:6 Incompetency/Insanity and the Statute of Limitations
8-6:7 Infancy/Parents’ Claim for Injuries to a Child and the Statute of Limitations
8-6:8 Statute of Limitations for Wrongful Death
8-6:9 Statute of Limitations for Public Disclosure of Patient’s Medical Records
8-7 CHARITABLE AND OTHER IMMUNITIES
8-7:1 Introduction
8-7:2 Hospitals and Charitable Immunity
8-7:2.1 Limitations on Hospital Liability
8-7:2.2 Limitations on Hospital Liability Not Applicable to Hospital Employees
8-7:2.3 Determining Whether Defendant is a Charity Subject to Immunity
8-7:2.4 Charitable Immunity Inapplicable in Products Liability
8-7:2.5 Jury Charges on Charitable Immunity
8-7:3 Immunity for Emergency Squads and Personnel
8-7:4 Good Samaritan Act Immunity
8-8 TORT CLAIMS ACT AND PUBLIC ENTITY IMMUNITY
8-8:1 Introduction
8-8:2 The Notice of Tort Claim
8-8:3 Requirement of Notice of Tort Claim for Public Employees
8-8:4 Time to Serve Notice of Claim in Malpractice Cases
8-8:4.1 Eagan and Lowe Opinions
8-8:4.1a Eagan v. Boyarsky: Public Employee Status Unclear
8-8:4.1b Lowe v. Zarghami: Extraordinary Circumstances
8-8:4.2 Cases Applying Eagan and Lowe
8-8:4.2a Ventola and Confusion about Federal or State Status of Institution
8-8:4.2b D.D. v. UMDNJ and Emotional Distress as Extraordinary Circumstances
8-8:4.2c McNellis-Wallace v. Hoffman Distinguishes the Date of Accrual and Extraordinary Circumstances
8-8:5 Application of Tort Claim Act Immunity
8-9 WORKERS’ COMPENSATION DEFENSES
8-10 LACK OF JURISDICTION
IV MULTIPLE DEFENDANTS, DEFENSE CLAIMS AGAINST OTHER PARTIES
8-11 CROSSCLAIMS
8-12 REPRESENTATION OF MULTIPLE DEFENDANTS
8-13 COUNTERCLAIMS BY DEFENDANTS
V VOIR DIRE
8-14 VOIR DIRE IN MEDICAL MALPRACTICE CASES
8-14:1 Supreme Court Directive #4-07
8-14:2 Requirements of Voir Dire
8-14:3 Use of Standard and Open-Ended Voir Dire Questions
8-14:4 Peremptory Challenges
VI ARBITRATION
8-15 CONTRACTUAL LIMITATIONS UPON AND COMPELLED ARBITRATION OF MALPRACTICE CLAIMS
8-16 IN LIMINE MOTIONS
8-17 PRACTICE POINTERS

Chapter 9: Pretrial Discovery in Medical Malpractice Cases
I INTRODUCTION
9-1 OVERVIEW
9-2 PRIORITY OF DISCOVERY
II MEDICAL RECORDS
9-3 OBTAINING PLAINTIFF’S MEDICAL RECORDS, INTERVIEWING PLAINTIFF’S TREATING PHYSICIANS
9-4 USE OF A SUBPOENA TO OBTAIN MEDICAL RECORDS
III INTERROGATORIES
9-5 FORM INTERROGATORIES
9-6 THE SCOPE OF INQUIRY BY INTERROGATORIES
9-7 DISCOVERY OF COMMUNICATIONS BETWEEN PLAINTIFF, COUNSEL AND EXPERTS
9-8 PENALTY FOR FAILURE TO ANSWER INTERROGATORIES
9-9 PRODUCTION OF EXPERT REPORTS
IV USE OF ADVERSARY’S EXPERT
9-10 USE OF AN ADVERSARY’S EXPERT GENERALLY PROHIBITED
V DEPOSITIONS
9-11 DEPOSITIONS OF PARTIES
9-11:1 Raising Objections During Depositions
9-11:2 Scope of Deposition Questions
9-11:3 Deposition Questions Concerning Opinions
9-11:4 Deposition Testimony Supporting Learned Treatises
9-12 DEPOSITIONS OF EXPERTS
9-13 MATERIAL CHANGE IN TESTIMONY BY A WITNESS
VI TREATING PHYSICIANS’ OPINIONS, REPORTS AND TESTIMONY
9-14 USE OF TREATING PHYSICIANS’ OPINIONS
9-14:1 Value of Treating Physicians’ Testimony
9-14:2 Discovery of Treating Physician’s Opinion
9-14:3 Use of Subsequent Treating Physician as Witness
9-14:3.1 Subsequent Treating Physician as Witness Concerning Liability Issues
9-14:3.2 Subsequent Treating Physician as Witness Regarding Causation
9-14:4 Admissibility of Subsequent Treating Physician’s Reports
9-14:5 Other Issues Concerning Treating Physician’s Testimony
9-15 OPINIONS OF PSYCHIATRISTS OR MENTAL HEALTH CARE PROFESSIONALS
VII OTHER DISCOVERY ISSUES
9-16 OPINIONS IN MEDICAL RECORDS
9-17 MEDICAL EXAMINER’S/AUTOPSY REPORTS
9-18 RECORDS AND REPORTS OF BOARD OF HEALTH, BOARD OF MEDICAL EXAMINERS
9-19 EVIDENCE OF A DECEDENT’S PRE-DEATH STATEMENTS
VIII CROSS-EXAMINATION OF EXPERTS
9-20 SCOPE OF CROSS-EXAMINATION OF EXPERT WITNESSES
9-20:1 Cross-Examination of Collateral Issues
9-20:2 Cross-Examination Regarding Prior Service as Expert Witness
9-20:3 Use of Hypothetical Questions in Cross-Examination
9-20:4 Questions Concerning Experts’ Financial Arrangements
9-21 PRACTICE POINTERS

Chapter 10: Electronic Medical Records
10-1 INTRODUCTION
10-1:1 Federal Overview
10-1:2 New Jersey Overview
10-2 REQUIREMENTS
10-2:1 Requirements for Eligible Medicare/Medicaid Providers
10-2:1.1 Meaningful Use Stages and Objectives
10-2:2 Requirements Under HIPAA for Electronic Medical Records
10-2:2.1 HIPAA’s Security Requirements
10-2:2.2 HIPAA’s Notification of Breach Requirement
10-2:2.3 HIPAA’s Privacy Requirements
10-2:3 Federal Incorporated Standards, Implementation Specifications, and Certification Criteria
10-2:4 Requirements Under New Jersey Law
10-3 CONTENTS OF ELECTRONIC MEDICAL RECORDS
10-3:1 Metadata and Electronically Stored Information
10-3:2 Types of Metadata
10-3:3 Metadata, Audit Trails, and Electronic Medical Records
10-3:3.1 Federal Requirements
10-3:3.2 New Jersey Requirements
10-4 AVAILABILITY OF ELECTRONIC MEDICAL RECORDS

Appendix
Table of Cases
Index