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Lack of Similar Colonoscopy Physician as Expert; Case Dismissal Reversed


A woman underwent a routine colonoscopy. The colonoscopy was performed by a general surgeon.

 

Following the colonoscopy, the woman experienced increasing abdominal pain. The woman went to the emergency room, where doctors diagnosed an injury to the woman’s spleen. The woman underwent surgery to repair the injury. The surgery proved unsuccessful. The woman underwent an exploratory laparotomy and the removal of the spleen. The woman remained in intensive care for five days.

 

The woman and the woman’s husband sued the surgeon and the surgeon’s practice group for medical malpractice. After the woman and the husband filed the complaint, the woman and the husband timely served an affidavit of merit from a general surgeon and an affidavit of merit from a gastroenterologist. The couple then moved to confirm that both experts were qualified to submit affidavits of merit. The Superior Court of New Jersey, Law Division, Essex County, ruled that the general surgeon’s affidavit of merit was satisfactory, but that the gastroenterologist’s affidavit of merit was not satisfactory.

 

The general surgeon who had provided the affidavit of merit withdrew as an expert due to illness. The couple served two reports from proffered experts: a gastroenterologist and neurologist and an infectious disease expert.

 

The surgeon and the practice group filed a motion to bar the report of the gastroenterologist. The couple filed a cross motion to allow for an exception, pursuant to N.J.S.A. 2A:53A-41(c) of New Jersey’s Patients First Act. Commonly referred to as “the waiver provision,” N.J.S.A. 2A:53A-41(c) “allows an alternative to the kind-for-kind specialty requirement if a plaintiff has made a good faith effort but failed to identify an expert physician in the specialty area available to testify.” The couples’ counsel argued that counsel had made a good faith effort because none of the potential surgical experts counsel contacted were able to provide an opinion on the matter. The trial court expressed concern that the certification of the couple’s counsel lacked details about why the other potential doctors could not serve as experts, and thus, the trial court could not discern a good faith effort. The trial court granted a period of time for the couple’s counsel to continue searching for an expert.

 

The couple could still not find an expert and filed another cross motion to allow for an exception under the waiver provision. A different judge was sitting in for the original judge when the motions were argued. The couple’s counsel argued that the case involved a general surgeon doing a screening colonoscopy which is a procedure that is not within the scope of what most general surgeon’s perform. The vast majority of screening colonoscopies are performed by gastroenterologists. Of over 100 general surgery experts within expert referral service databases, none met the qualifications required in this case: being a general surgeon, not sub-certified in any other field, who performs screening colonoscopies.

 

The second judge granted summary judgment dismissal of the couple’s claims against the surgeon and the practice group. The second judge also denied that the couple’s cross-motion for waiver on the ground that the second was bound by first judge’s previous ruling under the law of the case doctrine. The law of the case doctrine provides that a legal decision made in a particular matter should be respected by all other lower or equal courts during the pendency of that case.

 

The Superior Court of New Jersey, Appellate Division, reversed both the dismissal of the couple’s claims against the surgeon and his practice group and the denial of the couple’s cross-motion for waiver. The court held that the second judge mistakenly failed to exercise discretion when the second judge determined that the judge was bound by the first judge’s previous ruling.

 

The second judge mistakenly failed to exercise discretion when the second determined that the judge was bound by the first judge’s previous ruling. The law of the case doctrine does not apply when the prior decision was clearly erroneous. The first judge’s previous ruling was clearly erroneous. The second judge agreed with the couple that the record supported the grant of a waiver under N.J.S.A. 2A:53A-41(c), but incorrectly believed the second judge could not grant the waiver. The second judge’s failure to exercise discretion warranted reversal of both orders under review. The record clearly established that the couple made an honest effort to identify an expert in the same specialty or subspecialty as the surgeon. The first judge mistakenly focused on the reasons why a particular expert or experts declined to serve.

 

The Superior Court of New Jersey, Appellate Division, reversed both the dismissal of the couple’s claims against the surgeon and his practice group and the denial of the couple’s cross-motion for waiver.

 

See: Glucker v. Barbalinardo, 2017 WL 4247537 (N.J.Super.A.D., September 26,2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders

 

 

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