| Kenneth
Vercammen, Esq. Helps persons injured as a result of negligence of
another person or company
A person who is injured as a result of the negligence of another
person is what we in the legal profession refer to as a personal
injury claimant. In other words, they have been injured as a result
of an accident, and now wish to prosecute a claim against a negligent
property owner and its insurance company. The purpose of this article
is to describe some of the caselaw in a medical malpractice/ negligence
case.
Duty and Negligence
The plaintiff(s) must prove the doctors were negligent in the diagnosis
and [/or] treatment, and that such negligence was a substantial
factor in causing the plaintiff(s) to be injured.
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.
Certain doctors are specialists. 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.
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.
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, they must
determine the applicable medical standard from the testimony of
the expert witness(es) you have heard in the case.
Where there is a conflict in the testimony of the medical experts
on a subject, it is for the jury to resolve that conflict using
the same guidelines in determining credibility. They are not required
to accept arbitrarily the opinions offered. They 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 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, the jury must
focus on accepted standards of practice or specialty involved, and
not on the personal subjective belief or practice of the defendant
doctor.
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.
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.
If the jury finds that the defendant has 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 the jury find that the defendant
has 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.
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.
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.
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.
Conclusion
We appreciate that this is a great deal of information to absorb.
We also appreciate that our requests for client's assistance have
been numerous. However, we are certain that clients appreciate having
this information from the outset. Each request and bit of information
given here represents an important part in recovering full value
for an injury.
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