Health Care Liability Law Alerts

New Jersey

By Philip Anderson, Esq. (856-414-6005 or pjanderson@mdwcg.com)

Choosing The Right Kind Of Doctor In A New Jersey Malpractice Case Can Be Tricky.
Buck v. Henry, A-0362-09TA (App. Div. 2010)

The plaintiff, a depressed insomniac, was prescribed Zoloft and Ambien. The defendant was a board certified physician in emergency medicine but practicing family medicine. The plaintiff took the Ambien and fell asleep while "inspecting his .38 caliber Colt revolver." He was awakened by the sound of the telephone but forgot that the handgun was still in his hand, causing the barrel of the gun to enter his mouth and discharge. The plaintiff served two Affidavits of Merit, one from a board certified psychiatrist and the other from a physician who was board certified in emergency medicine. The court granted the defendant's motion to dismiss because neither affiant practiced in family medicine. The ruling turned on interpretation of a 2004 change to the statute that says that where the claim is against a medical specialist and "the care or treatment at issue involves that specialty," the person providing the affidavit must have the same specialty. Therefore, one must determine whether the medical provider is a specialist and the care and treatment at issue involves that specialty to determine whether the Affidavit of Merit is sufficient.

The Nature Of The Treatment Not The Specialty That Controls When Determining The Sufficiency Of The Affidavit Of Merit.
Jorden v. Glass, 2010 U.S. Dist. LEXIS 20073 (D.N.J. Mar. 5, 2010)

The decedent was part of a clinical trial concerning the dosage and food effects of a new medicine for schizophrenic patients. The defendant, a board certified psychiatrist, sought to dismiss the claims because the plaintiff's Affidavits of Merit were not prepared by a doctor who specializes in psychiatry. The plaintiff provided Affidavits of Merit authored by a general internal medicine physician, as well as a board certified internist and cardiologist. The plaintiff argued that his cause of action was not directed to the defendant's specialty in psychiatry but rather to the general treatment of chest pains. The court agreed finding that the defendant's treatment of the decedent's chest pains involved the application of general medical principles, not specialized psychiatric care. When dealing with a specialist, it must be determined whether the specialist was utilizing her special knowledge rather than the general skill and knowledge acquired in medical school when determining the sufficiency of an Affidavit of Merit.

Pennsylvania

By Jonathan Bradbard, Esq. (215-575-2881 or jwbradbard@mdwcg.com)

Pennsylvania Supreme Court Holds Medical Oncologist May Offer Standard Of Care Testimony Against Otolaryngologist And Radiation Oncologist.
Vicari v. Spiegel, Nos. 17 and 18 EAP 2009, decided March 25, 2010, By Justice McCaffery

This case involved the interpretation of Sections 512(c) and (e) of the MCARE Act regarding standard of care testimony in a medical malpractice matter. Relying on dicta in Gbur v. Golio, 963 A.2d 443, 452 (Pa. 2009), the Pennsylvania Supreme Court held that under the exception set forth in Section 512(e), the plaintiff's expert - a physician board certified in internal medicine with a subspecialty in medical oncology - had sufficient training, experience and knowledge as a result of active involvement in a related field of medicine to testify as to the standard of care of the defendant physicians - a board certified otolaryngologist and a board certified radiation oncologist. The Court emphasized that such a competency determination may be made only after determining the precise care at issue and what testimony the expert will present. The decedent underwent radiation therapy and surgery to remove a cancerous tongue tumor. A pathology report from the surgery indicated a high risk of recurrence and metastasis. The sole standard of care issue in this matter was whether, under these specific clinical circumstances, the defendant physicians also should have offered the decedent the option of follow-up chemotherapy and a referral to a medical oncologist. The Court held the plaintiff's expert was sufficiently qualified to offer an opinion as to the standard of care in this instance and that the subspecialties of the expert and the defendant physicians were related given the complexities and realities of modern cancer therapy, where patients obtain treatment with the oversight of multi-disciplinary "tumor boards." While some may argue this opinion erodes the standard of care requirements under the MCARE act, it appears the Supreme Court was extremely careful to limit its holding to the specific care at issue in this complex cancer case.