Medical Malpractice

We successfully appealed an emergency restrictive order issued by the Department of Health against a physician’s license. ​After allegations by a patient of sexual misconduct, the Department issued an emergency order restricting the physician’s license, thereby preventing him from treating any female patients in his practice. On appeal, the First District Court agreed that the emergency order was facially insufficient to demonstrate that sexual misconduct occurred or that an immediate threat of danger to the public existed, thereby quashing the emergency order and removing the restrictions on the physician’s license to practice medicine.

We successfully obtained a defense verdict on behalf of a dentist in a dental malpractice action in Luzerne County. ​The plaintiff asserted causes of action for negligence and lack of informed consent. Regarding negligence, the plaintiff alleged the dentist used excessive force in extracting a lower third molar, thereby causing a fracture of the mandible and alleged permanent paresthesia. In response, the defense admitted that the mandible was fractured during the extraction, but offered expert testimony that the fracture was an extremely rare complication and was not caused by negligence. The defense argued there was no evidence of the use of excessive force, such as TMJ disorders or dislocation, lacerations or broken adjacent teeth. As for informed consent, the plaintiff argued the dentist did not obtain informed consent because he did not discuss the risk of fracture. The dentist testified that he discussed the possibility of permanent numbness as a risk, but he admitted that fracture was a risk of the extraction and that he did not discuss this risk because the chances of it occurring were astronomically low. The plaintiff’s and the defendant’s experts both agreed that the chances of a fracture occurring were less than 0.0009%. The jury returned a defense verdict on all causes of action in less than one hour.

The 55-year-old plaintiff underwent tarsal tunnel surgery. She developed post-operative complications, including infection, and required two additional surgeries, including a sural artery flap graft. The plaintiff gained over 100 pounds after the podiatric surgeries and underwent gastric bypass surgery. She alleged it was required as the result of being sedentary from the podiatric surgeries and complications. The plaintiff has significant lower extremity surgical scarring, chronic pain and a gait abnormality. She was never able to return to work. She  alleged that the defendant intentionally kept fraudulent, incomplete and untimely electronic medical records. The defense argued that the podiatric surgeries were indicated and performed within the standard of care, and that the plaintiff developed post-operative complications resulting in the need for additional surgeries due to her own noncompliance—prematurely and repeatedly walking on her surgical foot and getting her surgical dressings wet.

We prevailed at the trial court level and on appeal in a medical malpractice action filed against a Florida hospital and three of its trauma/critical care physicians. ​It was alleged that the patient was overmedicated with narcotics during her 64-day hospital stay, resulting in acute respiratory failure and other complications, which caused her death. The plaintiff’s sole expert on liability and causation was a retired internal medicine physician. On the eve of trial, the trial court granted summary judgment in favor of the defendants, finding the plaintiff’s expert lacked the requisite qualifications under Florida law to render opinions against the hospital and its three specialist physicians. The Fifth District Court of Appeal affirmed the final judgment without an opinion and granted the defendants’ motion for appellate attorney’s fees.

In this medical malpractice action, the defendant, a New York doctor with no connection to New Jersey, was sued in New Jersey by a former patient who was a New Jersey resident. The court first found that the defendant did not waive consideration of the issue by waiting until after a dispute concerning the sufficiency of the affidavit of merit was resolved. The court then found that the evidence presented by the plaintiff was simply insufficient to establish either general or specific jurisdiction. The fact that the doctor had no connection to New Jersey and that the treatment occurred in New York were key to the decision, as the advertising activity by the New York hospital where the doctor is on staff, which the plaintiff relied upon, was insufficient to establish jurisdiction over the physician, especially as those activities had nothing to do with the plaintiff’s decision to treat with the defendant. In a published decision, the New Jersey Appellate Division affirmed the dismissal of the plaintiff’s complaint for lack of personal jurisdiction.

We prevailed on an appeal to the 5th District Court of Appeal in a medical malpractice action filed against a hospital and three of its trauma/critical care physicians. ​It was alleged that the patient was over-medicated with narcotics during her 64-day hospital stay, resulting in acute respiratory failure and other complications, which caused her death. The plaintiff’s sole expert on liability and causation was a retired internal medicine physician. On the eve of trial, the trial court granted summary judgment in favor of the defendants, finding that the plaintiff’s expert lacked the requisite qualifications under Florida law to render opinions against the hospital and its three specialist physicians. The Fifth District affirmed the final judgment without an opinion and granted the defendants’ motion for appellate attorney’s fees.

We obtained a unanimous decision in the New Jersey Supreme Court reversing an order for a new trial. ​In this medical malpractice action, the defendant was a physician who allegedly committed malpractice when he prescribed a drug to a patient. According to the plaintiff's experts, she was not an appropriate candidate for the drug. The matter was tried by another law firm before a jury, which reached a defense verdict. However, on appeal to the Appellate Division, the court reversed and remanded for a new trial on the grounds that the defendant's change of testimony at trial, from what it had been in his deposition, prejudiced the plaintiff. The matter was then transferred to Marshall Dennehey for further appeal in the New Jersey Supreme Court. The Supreme Court unanimously agreed with the defense’s argument that the precedent which the Appellate Division had relied upon in ordering the new trial was distinguishable. Further, the fact that plaintiff's counsel failed to object to the changed testimony at trial was likely strategic and, therefore, did not prejudice the plaintiff sufficiently to compel the reversal. The court reversed and reinstated the jury verdict. 

We received a defense verdict in a podiatric surgical malpractice arbitration. ​The plaintiff alleged that the defendant podiatrist negligently performed foot surgery, causing her foot deformities to worsen and resulting in shooting pain in her big toe, pain under her second and third toes, and imbalance. Her husband claimed loss of spousal consortium. The defense successfully argued that the surgery was performed reasonably and within the standard of care, and that the plaintiff developed known and accepted risks and complications of the surgery. 

The case involved a woman with significant cardiac problems who suffered cardiac arrest and death. Her estate alleged that our clients, a medical resident and an intern, improperly administered certain pharmaceuticals, leading to her death. The plaintiff originally named two physicians as experts, a cardiologist who was offered to testify to the standard of care, and a physician board certified in occupational medicine, medical toxicology and emergency medicine, who was initially named to give testimony on causation. Before deposition, the expert cardiologist withdrew, and the plaintiff did not obtain the services of another expert, choosing instead to attempt to proceed with the other expert providing both standard of care and causation testimony. The Appellate Division affirmed the decision of the trial court which dismissed the case, finding that because the expert did not devote the majority of his professional time in the year prior to the decedent’s death in a clinical practice that encompassed the medical condition or procedure at issue, he was not qualified under New Jersey law to offer standard of care testimony. As such, the dismissal of the complaint was affirmed.

We received a defense verdict on no causation in a binding arbitration of a matter venued in Montour County, Pennsylvania, involving a bowel leak following urologic cancer surgery. We represented a Pennsylvania health system and its chief of urology who performed major cancer surgery upon the plaintiff (cystoprostatectomy and creation of ileal conduit). The plaintiff was discharged once his bowel function was returning and he was tolerating a normal diet, despite a slightly elevated temperature and white blood cell count (neither of which had the residents informed the attending physician about). Over the next two days, the plaintiff’s wife made multiple calls to the on-call residents, who did not feel readmission was warranted. Ultimately, he was readmitted, underwent a second surgery and then suffered more complications, likely due in part to poor blood supply to the bowel from years of heavy smoking. The defense team, through motions, secured the dismissal of corporate negligence and future medical expense claims and, through internet research, found that the plaintiff’s expert had previously been precluded from testifying by a court in Ohio for “making up facts.” Challenges in the case included that the attending surgeon readily admitted that the patient should have been readmitted sooner. However, he maintained that the outcome would have been no different. The arbitrator found his testimony credible and found no negligence on his part. 

Marshall Dennehey's health care attorneys obtained a defense verdict on behalf of a midwife in a case involving alleged failure to properly manage and care for a patient’s labor and delivery, resulting in catastrophic injury to her child. Counsel for the minor-plaintiff argued that the pregnancy and labor were high risk. Therefore, it was below the standard of care to use intermittent auscultation (IA) during the second stage of labor. The plaintiff argued that the fetus suffered a catastrophic brain injury during the second stage of labor, resulting in cerebral palsy and daily intractable seizures. The child is six years of age, wheelchair bound, unable to speak or feed himself, and will require lifetime supervision and care. The defense argued that the patient’s pregnancy remained low risk; that IA was within the standard of care; a sentinel event did not occur during the second stage of labor; and that the child’s brain injury occurred in the days leading up to the hospital admission for labor. 

The plaintiff suffered a perforated uterus following an ambulatory IUD removal surgery that was performed by our Ob/Gyn client. The following day, the plaintiff was readmitted with worsening symptoms and underwent surgery to repair the perforation. The plaintiff alleged that our client was negligent in failing to timely and properly manage the uterine perforation and that the delayed treatment resulted in the plaintiff requiring two open surgeries and ultimately a hysterectomy. With $4.4 million at stake, the jury returned a complete defense verdict.  

The plaintiff alleged to have suffered a fall in a hospital bathroom three days post-operatively that reinjured his surgically repaired knees. The nurses denied the patient fell to the ground and testified, consistent with their charting, that the patient lost his balance in the bathroom and sat on a commode. There was a significant economic damage claim in that the plaintiff was a young restaurant owner who suffered two distinct orthopedic injuries that required multiple surgeries and additional future care. The jury returned a defense verdict 50 minutes after deliberations began, finding that the nurses were not negligent.

Obtained summary judgment for a licensed clinical social worker in a negligence, defamation, fraud and intentional infliction of emotional distress case. ​The plaintiff (the father, a police officer and president of the local school board) brought these claims after the social worker informed the Family Court of the children's allegations of physical and emotional abuse by the plaintiff, which were revealed to her during the minor children's therapy sessions. In granting summary judgment, the court found that the social worker's correspondence with the Family Court was immune from liability pursuant to the litigation privilege, irrespective of the fact that the court had not specifically sought her opinions and that she did not testify in the Family Court litigation. New Jersey recognizes immunity for all statements made in the course of litigation, regardless of their form, intent or truthfulness. The court also concluded that the plaintiff's claims for negligence and defamation were partially barred by the statute of limitations.

Obtained a defense verdict on behalf of a primary care physician. ​The plaintiff alleged the physician failed to order a blood test that would have detected a rare blood disorder called TTP. Five days after seeing our client, the decedent’s condition rapidly declined, and two days later, he died. Prior to trial, the plaintiff’s demand was almost $1 million. The defense was multifaceted. First, our client directed the decedent to the hospital where a blood test would have been performed, but the decedent refused. Furthermore, the decedent refused outpatient testing, which would have included a blood test. Our client tried to comply with the standard of care but was prevented from doing so because of the decedent’s choices. Second, We contended that the decedent did not die from TTP but, rather, from a related blood disorder called DIC, which is only caused by another underlying pathology, which, in this case, was suspected to be lung cancer. 

Obtained a defense verdict in a medical malpractice case in the U.S. District Court for the Middle District of Pennsylvania. ​The plaintiff alleged to be permanently disabled and in a wheelchair, requiring home health care for the rest of her life, as a result of an Emergency Room physician’s failure to timely diagnose and treat a viral infection involving the 7th and 8th cranial nerves (Ramsay Hunt Syndrome). We represented the ER physician, his employer (who staffed the ER) and the hospital. Plaintiff’s counsel submitted a $4 million life care plan to the jury for consideration, and the final settlement demand was $2 million. The jury agreed with the defense’s position that the doctor did not deviate from the standard of care. Because of this, no liability could be found against our client, nor any of the other defendants.