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MEDICAL MALPRACTICE- NEGLIGENCE
Medical Malpractice cases are complicated matters. If your have
been seriously and permanently injured as a result of negligence,
consult a personal injury attorney. If an injury case is not the
type we can handle, we will try to refer you to another competent
trial attorney. The following legal information is used in Medical
malpractice trials in New Jersey:
Duty and Negligence
Negligence is conduct which deviates from a standard of care required
by law for the protection of persons from harm. Negligence may result
from the performance of an act or the failure to act. The determination
of whether a defendant was negligent requires a comparison of the
defendant's conduct against a standard of care. If the defendant's
conduct is found to have fallen below an accepted standard of care,
then he or she was negligent.
Common Knowledge May Furnish Standard of Care
Negligence is the failure to comply with the standard of care to
protect a person from harm. Negligence in a doctor's medical practice,
which is called malpractice, is the doctor's failure to comply with
the standard of care in the care and treatment of his/her patient.
Usually it is necessary to establish the standard of care by expert
testimony, that is, by testimony of persons who are qualified by
their training, study and experience to give their opinions on subjects
not generally understood by persons, such as jurors, who lack such
special training or experience. In the usual case the standard of
care by which to judge the defendant's conduct cannot be determined
by the jury without the assistance of expert medical testimony.
However, in some cases, such as the case at hand, the jury may
determine from its common knowledge and experience the standard
of care by which to judge the defendant's conduct. In this case
plaintiff contends that the defendant violated the duty of care
he/she owed to the plaintiff by doing ____________________________
[ or by failing to do the following ____________________]. In this
case, therefore, it is for you, as jurors, to determine, based upon
common knowledge and experience, what skill and care the average
physician practicing in the defendant's field would have exercised
in the same or similar circumstances. It is for you as jurors to
say from your common knowledge and experience whether the defendant
deviated from the standard of care in the circumstances of this
case.
Where there has been expert medical testimony as to the standard
of care, but the standard is one which can also be determined by
the jury from its common knowledge and experience, the jury should
determine the standard of care after considering all the evidence
in the case, including the expert medical testimony, as well as
its own common knowledge and experience.
After determining the standard of care required in the circumstances
of this case, you should then consider the evidence to determine
whether the defendant has complied with or departed from that standard
of care. If you find that defendant has complied with that standard
of care he/she is not liable to the plaintiff, regardless of the
result. If you find that defendant has not complied with that standard
of care, resulting in injury or damage to the plaintiff, then you
should find defendant negligent and return a verdict for plaintiff.
Cases and Notes:
a) Common Knowledge
The common knowledge doctrine was applied in Martin v. Perth Amboy
General Hospital, 104 N.J. Super. 335 (App. Div. 1969), where a
laparotomy pad was left in plaintiff's body during an operation,
Tramutola v. Bortone, 63 N.J. 9 (1973), where plaintiff discovered
that a needle had been left in her chest during surgery; Steinke
v. Bell, 32 N.J. Super. 67 (App. Div. 1954), where a dentist removed
the wrong tooth; Becker v. Eisenstodt, 60 N.J. Super. 240 (App.
Div. 1960), where the defendant used a caustic substance instead
of an anesthetic; and Terhune v. Margaret Hague Maternity Hospital,
63 N.J. Super. 106 (App. Div. 1960), where plaintiff was burned
as a result of the improper administration of an anesthetic during
childbirth, Nowacki v. Community Medical Center , 279 N.J. Super.
276 (App. Div. 1995), where plaintiff alleged that she fell while
attempting to lift herself onto a treatment table, Tierney v. St.
Michael's, 214 N.J. Super. 27 (App. Div. 1986), certif. den. 107
N.J. 114 (1987), where plaintiff's infant crawled out of a crib
while hospitalized at the defendant hospital, Winters v. Jersey
City Medical Center , 120 N.J. Super. 129 (App. Div. 1972), where
the court held that one does not need an expert witness to testify
that the bed rails should have been in the up position for an elderly
person who fell out of bed. The common knowledge doctrine was applied
to a failure to communicate an abnormal finding and the signing
of an incorrect discharge summary in Jenoff v. Gleason, 215 N.J.
Super. 349 (App. Div. 1987). In Rosenberg by Rosenberg v. Cahill,
99 N.J. 318 (1985), the common knowledge doctrine was not applied
to the failure to observe a tumor in an x-ray.
The court rejected the plaintiff's reliance on the common knowledge
doctrine in Posta v. Chueng-Loy, 306 N.J. Super. 182 (App. Div.
1997), involving hernia surgery.
See also, Sanzari v. Rosenfeld, 34 N.J. 128 (1961), Jones v. Stess,
111 N.J. Super. 283 (App. Div. 1970), Klimko v. Rose, 84 N.J. 496
(1980).
b) Res ispa loquitur
There are three requirements which must be demonstrated in order
to apply the doctrine of res ipsa loquitur:
(1) The occurrence must be one which ordinarily bespeaks negligence;
(2) The instrumentality causing the injury must have been within
defendant's exclusive control; and
(3) There must be no indication that the plaintiff's injury was
in any way the result of his own voluntary act or neglect.
A detailed analysis of the doctrine of res ipsa is found in Gould
v. Winokur, 98 N.J. Super. 554 (Law Div. 1968), aff'd., 104 N.J.
Super. 329 (App. Div. 1969), certif. den . 53 N.J. 582 (1969). See
also, Buckelew v. Grossbard, 87 N.J. 512 (1981).
The difference between the res ipsa doctrine and the common knowledge
doctrine is that the res ipsa doctrine requires expert testimony
to prove the first element of proof, i.e., that the occurrence does
not usually happen in the absence of negligence. Smallwood v. Mitchell,
264 N.J. Super. 295 (App. Div. 1993), certif. den. 134 N.J. 481
(1993).
The logical extension of the res ipsa and common knowledge doctrines
is the conclusion that there are cases where the facts are such
that at least one defendant must be liable as a matter of law. The
genesis of this concept in New Jersey is found in Anderson v. Somberg,
67 N.J. 291 (1975), cert. den. 423 U.S. 929 (1975). See also, Chin
v. St. Barnabas Medical Center, 160 N.J. 454 (1999).
The doctrine of res ipsa loquitur was deemed applicable in Yerzy
v. Levine, 108 N.J. Super. 222 (App. Div. 1970), aff'd. 57 N.J.
234 (1970), where the common bile duct had been completely severed
during gall bladder surgery; Pearson v. St. Paul, 220 N.J. Super.
110 (App. Div. 1987), where plaintiff's sixteen year old daughter
died after arthroscopic knee surgery.
The doctrine of res ipsa loquitur was deemed inapplicable in Toy
v. Rickert, 53 N.J. Super. 27 (App. Div. 1958), where plaintiff
alleged that the defendant negligently administered a shot of penicillin
into plaintiff's right buttock causing nerve damage; in Renrick
v. Newark, 74 N.J. Super. 200 (App. Div. 1962), where plaintiff
alleged that the defendant negligently injected a drug resulting
in severe burning of both forearms and widespread scarring; Posta
v. Chueng-Loy, 306 N.J. Super. 182 (App. Div. 1997), involving hernia
surgery.
c) Common knowledge can be employed in some cases although expert
medical testimony is also offered as to the standard of care and
defendant's alleged departure therefrom. See Sanzari v. Rosenfeld,
supra, 34 N.J. at 138 and 143.
The Trial Judge will read the following instructions to the jury
prior to the jury deciding damages and negligence:
[Option A: Specialist. ] The defendant(s) in this case is (are)
a medical specialist(s) in the field of [insert appropriate specialty
description]. Specialists in a field of medicine represent that
they will have and employ not merely the knowledge and skill of
a general practitioner, but that they have and will employ the knowledge
and skill normally possessed and used by the average specialist
in the field. Thus, when a physician holds himself/herself out as
a specialist and undertakes to diagnose and treat the medical needs
of a patient, the law imposes a duty upon that physician to have
and to use that degree of knowledge and skill which is normally
possessed and used by the average specialist in that field, having
regard to the state of scientific knowledge at the time that he/she
or she attended the plaintiff.
[Option B: General Practitioner.] The defendant(s) in this case
is (are) a general practitioner(s). A person who is engaged in the
general practice of medicine represents that he/she or she will
have and employ knowledge and skill normally possessed and used
by the average physician practicing his/her profession as a general
practitioner.
[Remainder of Charge:]
Given what I have just said, it is important for you to know the
standard of care which a general practitioner/specialist in [insert
appropriate specialty description, if applicable] is required to
observe in his/her treatment of a patient under the circumstances
of this case. Based upon common knowledge alone, and without technical
training, jurors normally cannot know what conduct constitutes standard
medical practice. Therefore, the standard of practice by which a
physician's conduct is to be judged must be furnished by expert
testimony, that is to say, by the testimony of persons who by knowledge,
training or experience are deemed qualified to testify and to express
their opinions on medical subjects.
You as jurors should not speculate or guess about the standards
of care by which the defendant physician(s) should have conducted
himself/herself/themselves in the diagnosis and treatment of the
plaintiff. Rather, you must determine the applicable medical standard
from the testimony of the expert witness(es) you have heard in this
case.(1)
Where there is a conflict in the testimony of the medical experts
on a subject, it is for you the jury to resolve that conflict using
the same guidelines in determining credibility that I mentioned
earlier. You are not required to accept arbitrarily the opinions
offered. You should consider the expert's qualifications, training,
and experience, as well as his/her understanding of the matters
to which he/she or she testified.
Where an expert has offered an opinion upon an assumption that
certain facts are true, it is for you, the jury, to decide whether
the facts upon which the opinion is based are true. The value and
weight of an expert's testimony in such instances is dependent upon,
and no stronger than, the facts upon which it is predicated.
When determining the applicable standard of care, you must focus
on accepted standards of practice in [insert general practice or
specialty involved] and not on the personal subjective belief or
practice of the defendant doctor.(2)
The law recognizes that the practice of medicine is not an exact
science. Therefore, the practice of medicine according to accepted
medical standards may not prevent a poor or unanticipated result.(3)
Therefore, whether the defendant doctor was negligent depends not
on the outcome, but on whether he/she adhered to or departed from
the applicable standard of care. Ibid.
Note to Judge:
Where the defendant has satisfied the burden of proving that medical
judgment is involved in the case, insert Charge 5.36G, Medical Judgment,
here.
If you find that the defendant(s) has (have) complied with the
accepted standard of care, then he/she is not liable to the plaintiff
regardless of the result. On the other hand, if you find that the
defendant(s) has (have) deviated from the standard of care resulting
in injury or damage to plaintiff, then you should find defendant
negligent and return a verdict for plaintiff.
The following court cases relate to medical malpractice: 1. Jacober
v. St. Peter's Medical Center, 128 N.J. 475 (1992).
(2)Morlino v. Medical Center of Ocean County, 295 N.J. Super. 113
(App. Div. 1996), aff'd. 152 N.J. 563 (1998). See also, Fernandez
v. Baruch, 52 N.J. 127, 131 (1968), Carbone v. Warburton, 11 N.J.
418, 425 (1953), Schueler v. Strelinger, 43 N.J. 330, 346 (1964),
Ziemba v. Riverview Medical Center, 275 N.J. Super. 293 (App. Div.
1994), Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997).
(3)Morlino, supra. Aiello v. Muhlenberg Regional Medical Center,
159 N.J. 618 (1999), Velazquez v. Portadin, 163 N.J. 677 (2000).
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