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Law Alerts HEALTH CARE LIABILITYFlorida An Emergency Subsequent To Becoming An OB Patient Does Not Excuse The Need For NICA Notice. The court receded from a prior decision in finding that, as almost every delivery is an emergency situation, the emergency exception in NICA does not apply if there was an opportunity to provide notice in a prior encounter when a provider-obstetrical patient relationship begins. When the relationship begins is a fact-specific inquiry. However, they also certified to the Supreme Court whether the notice requirement is excused because of a subsequent "emergency medical condition." NICA Notice Provided By A Doctor Not Employed By The Hospital Was Sufficient. The court found the fact that a patient's OB gave NICA notice was enough to protect the hospital. See also Bayfront Medical Center v. NICA, 33 Fla. L. Weekly D217 (Fla. 2nd DCA 1/16/08) for the same result. New Jersey An Affidavit Of Merit Is Not Required To Be Served Against A Licensed Nurse Midwife When Sued In Her Professional Capacity Because A Licensed Midwife Is Not A "Licensed Person" Under The Affidavit Of Merit Statute. The plaintiff filed a medical malpractice complaint against a licensed nurse midwife alleging her daughter sustained trauma during birth, specifically an Erb's Palsy injury, as a result of the nurse midwife's negligence. The trial court dismissed the plaintiff's medical malpractice Complaint for failure to provide an Affidavit of Merit against the licensed midwife. The Appellate Court reversed the Trial Court's dismissal, ruling that a licensed midwife is not a "licensed person" under N.J.S.A. 2A:53A-27, the Affidavit of Merit Statue. The Appellate Division, in so holding, concluded that licensed midwives, as well as other individuals not specified in N.J.S.A. 2A:53A-27, do not require an Affidavit of Merit when sued in their professional capacity. Further, they articulated that an Affidavit of Merit would be required as to the 15 "licensed persons" under N.J.S.A. 2A:53A-26, which are accountants, architects, attorneys, dentists, engineers, physicians, podiatrists, chiropractors, registered professional nurses, health care facilities, physical therapists, land surveyors, registered pharmacists, veterinarians and insurance producers. Pennsylvania A Specific And Comprehensive Joint Tortfeasor Release Operates To Extinguish Both Direct Liability Claims And Vicarious Liability Claims Under Section 8326 Of The Uniform Contribution Among Tortfeasors Act. The plaintiff signed a joint tortfeasor release, wherein he relinquished all claims and demands against his medical providers, save one unreleased physician. Importantly, a condition in the release stated that if the unreleased physician was later found to be jointly or severally liable with any of the released parties, the claim against and damages recoverable from him should be reduced by the amount determined by the sum of the pro-rata share of legal responsibility or legal liability for which the released parties were found to be liable. Arguing against the plain language of the release, the plaintiff attempted to construe the release to only discharge the medical facilities covered by the order from his direct liability claims, while preserving issues of vicarious liability against them. The plaintiff insisted that his vicarious claims against the defendant health care providers, including the unreleased physician, were preserved by Section 8326 of the Uniform Contribution Among Tortfeasors Act (UCATA), 42 Pa.C.S.A. §§ 8321-27, which provides that discharge of one joint tortfeasor does not operate to discharge the other(s) unless so specified in the release. The court, however, found that the comprehensive words of the release were consistent with Section 8326, since they specifically and comprehensively effectuated the discharge of all listed health care providers, save the unreleased physician, by encompassing any and all acts capable of incurring either direct or indirect, that is, vicarious or ostensible, liability. The result was the extinction of all plaintiff's claims against defendants other than the unreleased physician. Workers' Compensation Judge's Credibility Determinations Of Conflicting Medical Expert Testimony Will Be Upheld Provided He Or She Articulates An Objective Basis For The Determination. In a workers' compensation case, the Workers' Compensation Judge was called to resolve issue where the parties' expert witnesses presented conflicting evidence. The Workers' Compensation Judge credited the claimant's physician's testimony and discredited that of the employer's two medical experts. The court held on appeal that, although a Workers' Compensation Judge's resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another, (because, to allow for effective appellate review the Workers' Compensation Judge must articulate an objective basis for the credibility determination), Section 422(a) of the Workers' Compensation Act does not permit a party to challenge the Workers' Compensation Judge's reasons for credibility determinations when such determinations have not been made arbitrarily or capriciously.
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