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What to expect when hiring a lawyer to investigate and file a medical malpractice lawsuit.

Pre-Suit Investigation

In New Jersey (where I practice), and in other states that allow parties to a lawsuit to engage in full pretrial discovery, when a plaintiff-patient sues a defendant health care provider, a medical malpractice case will go through several phases and will usually take several years to get to trial.

At the outset of malpractice litigation many states require a patient to serve the doctor with an Affidavit of Merit (AOM). The AOM must be signed by a physician with credentials similar to the defendant doctor and it must state that after reviewing the pertinent medical records the expert believes (a) that the defendant doctor practiced medicine below accepted standards of care and (b) that this harmed the patient. For this reason, before a lawsuit is filed against a physician, a patient’s lawyer must obtain all of the medical records pertinent to the claim for the expert’s review.

In addition to the medical records, my office provides a reviewing expert with the relevant medical literature and any insight obtained from our own review of the patient’s records. Why? In a perfect world, paying experts hundreds of dollars an hour would guarantee a thorough review of a case. Realistically speaking, however, because (a) physician experts have extremely demanding schedules and (b) experts feel compelled to complete their review of a case as quickly as possible (because they are usually charging an exorbitant hourly rate) experts tend to speed through medical records when reviewing a file. Highlighting the important facts in the records and providing an expert with up to date literature allows an expert’s review to be more efficient and ensures that the expert will be in a position to familiarize himself with the nuances of the medical care provided to the patient.

The pre-suit investigation is often the most critical part of a medical malpractice case. If a firm does nothing more than provide an expert with a patient’s medical records, they will not be in a position to evaluate their expert’s review of the case. Moreover, there are other reasons why an attorney must become conversant with the facts related to a plaintiff’s medical care and educate himself with the medical literature relevant to a litigation. When the case goes into suit, a lawyer will have to have a full command of these subjects. Every defendant in a medical malpractice case is a free defense medical expert consultant to defense counsel, and they have an obvious motive to give their attorney all the help they can. A vigilant pre-suit investigation from the patient’s attorney is the best tool to neutralize this advantage.

Commencing the Lawsuit.

Once the pre-suit investigation of the claim is complete and an expert has signed an AOM, a lawsuit is started when the patient files a complaint with the court that spells out the pertinent facts and the allegations. Complaints describe, in very broad strokes, the care the doctor provided to the patient, identify those aspects of the care that the patient contends were negligent, and indicate how these mistakes harmed the patient. Once the complaint is filed, the doctor is served with a copy of the filed complaint, along with a summons. At that point, a defendant physician will notify his malpractice insurance carrier that a lawsuit has been filed, and the carrier will hire an attorney to defend the physician in the lawsuit.

Medical malpractice litigation is a very specialized field of law. As a result, there are usually a handful of defense firms representing most physicians in a single geographic area. If your attorney regularly litigates medical malpractice cases, the firm hired on behalf of a defendant doctor will know your attorney and have a good understanding of his professional reputation. Conversely, if your attorney does not regularly litigate malpractice cases and does not have an established reputation in this field, defense counsel will know this as well.

The Discovery Phase of a Lawsuit.

Paper Discovery Responses

Once a defense attorney enters an appearance and files an Answer, your case enters the discovery phase of litigation. Generally speaking, during discovery, all parties have an opportunity to investigate the merits of the other side’s legal and factual position. The first phase of discovery involves the exchange of paper discovery demands and responses. Each side propounds interrogatory questions on the other side which are written questions that require written responses. Most attorneys also serve a demand for production of documents, which requires the other side to provide copies of all documents pertinent to the case. Finally, attorneys may propound a demand for admissions, which requires the responding party to affirm or deny the truth of a set of factual allegations.

Your attorney will draft your paper discovery responses which you will then be required to review and supplement. After you approve your discovery responses a finalized draft will be forwarded to defense counsel, with a certification page signed by you that indicates the answers and documents are true and complete. All pertinent medical records and other items demanded by the defendants in discovery will be attached as exhibits to your paper discovery responses.

More often than not, defendant physicians do not provide complete and comprehensive paper discovery responses. There are a variety of reasons for this, but one is that many attorneys who represent patients simply do not insist on this. Obtaining complete and comprehensive discovery responses takes time and effort. First, an attorney representing a patient must send a detailed correspondence to the physician’s attorney outlining why the doctor’s discovery responses are deficient, and demand more information. Assuming the doctor does not cure the deficiencies, a motion then has to be prepared and filed with the Court to compel more specific answers. Often, the motion will require a court appearance. Many attorneys conclude that this process is too time consuming, especially since after paper discovery is exchanged, a patient’s lawyer will have an opportunity to depose a doctor and clarify issues in the doctor’s paper discovery responses.

A good lawyer knows, however, that the purpose of discovery is not only to obtain information from the other side, but to require a defendant to provide a precise factual statement about the facts of a litigation which can be used at trial as affirmative evidence, or for the purpose of impeaching or contradicting a defendant doctor’s trial testimony. Only after a doctor takes a precise position in his paper discovery responses can these be used an impeachment device in later proceedings. Additionally, insisting on comprehensive and complete paper discovery responses enables an attorney to better prepare for depositions.

Depositions of the Parties and Fact Witnesses.

After paper discovery responses are exchanged the parties will schedule depositions. During a deposition a witness is placed under oath and required to provide verbal responses to questions asked by counsel. Everything said during a deposition is taken down by a court reporter, and a written transcript of the testimony is created. At trial, a party’s deposition transcript can be read directly to the jury. Additionally, an expert’s transcript and the transcripts from non-party witnesses can be read to the jury if a witness contradicts his deposition testimony on the stand at trial.

Most of the time plaintiffs are depose first. Before you are deposed you will meet with your attorney to prepare for that proceeding. Your deposition will take place in a conference room, usually at your attorney’s office. The attorneys representing all parties will be present. Defendant doctors have a right to be present, but they rarely attend. The attorneys who represent the doctor will ask you questions about the following subjects:

  1. The care provided by the defendants;
  2. Your medical history before and after the incident that gave rise to the malpractice claim; and
  3. The injuries and disabilities that you suffered as a result of the negligence of the defendant and how these impact your life.

After your deposition takes place your attorney will have an opportunity to depose the defendant physician and any other health care providers who may have knowledge of facts related to your claim. It is often difficult to schedule depositions of defendant physicians because they have very demanding schedules and courts will usually provide them with latitude because of this. Occasionally it will be necessary for your attorney to file an application with the court compelling the deposition of the defendant if the deposition is rescheduled repeatedly.

The deposition of a defendant physician is obviously focused on the care provided to the plaintiff-patient. Nevertheless, this proceeding is not the time for a patient’s attorney to “discover” the medical facts relevant to the case. By the time the deposition of a defendant takes place, a patient’s attorney should have a full command of the facts and a complete understanding of the medicine. The goal of the deposition of the doctor should be to lay the evidentiary foundation necessary to prove that the doctor’s medical treatment of the plaintiff was below accepted standards of care and to lock the defendant into a precise factual position.

Expert Reports.

After depositions are completed, expert reports are exchanged. Generally speaking, a patient will serve his expert reports first. Depending on the nature of your case, you will have at least one medical expert. If the liability and damages issues in your case span more than one medical specialty or there are multiple defendants in the case, you will likely have more than one medical expert who will write a report on your behalf. Additionally, if the medical malpractice of the defendant made you disabled, your attorney may hire an economic expert to provide testimony about your future lost wages.

Experts base their opinion on a review of (a) the pertinent medical records, (b) the relevant literature, (c) the paper discovery responses exchanged during discovery, and (d) a review of the deposition transcripts of all of the relevant witnesses. This is a very labor-intensive process. Nevertheless, in New Jersey and many other states, the court rules enable experts and attorneys to engage in a collaborative process prior to the issuance of expert reports and these activities are protected from disclose under the work-product doctrine. As a result, knowledgeable attorneys will provide guidance to experts in the preparation of their reports for the same reasons that attorneys provide guidance with respect to an expert’s initial review of a case in anticipation of securing an Affidavit of Merit.

In medical malpractice cases, experts issue reports with a common format. The report will begin by listing the evidence that an expert reviewed. Next, the expert report will provide a factual chronology that highlights the important facts based on expert’s review of the evidence. The report will finish with a discussion of the expert’s conclusions about why he believes a defendant deviated (or did not deviate) from accepted standards of care, citing to the medical literature on the subject. When the experts your attorney retains complete their reports, your attorney will serve them on counsel for the defendant physicians, and you will also receive copies.

Depositions of the Experts

After expert reports are exchanged, the parties will be provided with an opportunity to depose the experts. Customarily, a plaintiff’s expert is deposed first. Your attorney will meet with your experts to prepare them for that proceeding. In my office, we insist on meeting with an expert at least a week in advance of his deposition so that the expert has time to digest what is discussed and so that the expert can utilize the information we provide in the meeting during his own pre-deposition preparations.

After your experts are deposed, your attorney will depose the defense experts. This is a critical part of a medical malpractice litigation. It is not unusual for my firm to spend as much time preparing for expert depositions as we spend preparing for trial. In addition to all of the medical research and factual review, background checks of all experts are undertaken. All relevant medical publications of the expert are reviewed prior to the deposition. Additionally, all available deposition transcripts of an expert are reviewed, so that we are in the best position to challenge the credibility and the science behind the expert’s opinions.

The Resolution Phase of a Medical Malpractice Case.

Settlement Discussions.

After expert depositions are complete, the case enters into the resolution phase of the litigation. In New Jersey, a defendant doctor must consent to settling a medical malpractice case. If (a) a doctor consents to settle the case and (b) the doctor’s insurance carrier authorizes a defense attorney to make an offer of settlement, the parties begin settlement negotiations. This may occur in a settlement conference before the judge the parties are assigned to for trial. It may also occur during voluntary mediation, or simply through informal conversations between counsel.

As a general rule, because the stakes are so high, insurance carriers do not engage in settlement discussions in medical malpractice litigations until after they have had an opportunity to evaluate how the parties and the experts perform during discovery.

Obviously, your attorney has more experience than you do at evaluating the merits and value of a litigation, and he will provide you with guidance about what he thinks the settlement value of your case is. Ultimately, however, the decision about whether to resolve a case for an amount offered is the client’s alone. You are free to reject your attorney’s advice about whether or not to resolve a case. An attorney has an ethical obligation to advise you of every offer made, and he is ethically bound to abide by your decisions in the negotiating process.

Trial Preparation.

If the parties cannot find common ground through settlement discussions, a case must be prepared for trial. Your attorney will prepare motions in limine regarding legal issues that will come up during the trial. Attorneys must also prepare other pleadings in the form of voir dire questions, proposed charges, a pretrial information exchange, and a proposed verdict sheet. On top of this, your attorney will meet with you and all of the witnesses who testify on your behalf to ensure that they are ready to testify at trial.

In addition to preparing pleadings and making sure that witnesses are ready for trial, in the modern digital age attorneys must also prepare demonstrative exhibits. Slides will be prepared to assist and keep the jury’s attention during opening and closing statements. Medical records will be scanned so that they can be projected onto screens or televisions when defendants and their experts testify. Deposition transcripts and paper discovery responses are also scanned so that they can be used for impeachment purposes. At my office, we have software programs that enable us to digitally reproduce any document so that it can be projected onto a screen. Evidence is bar coded so that when a witness testifies we can call up relevant documents during a trial with a bar code scanner. If a witness contradicts a medical record or sworn testimony, in less than one second we can project the pertinent impeachment evidence on a screen while we are engaging in our cross-examination. Organizing all of this information so that it can be used effectively takes a great deal of planning and is very time consuming.

The Trial.

Trials can last several days and complicated cases will result in trials that last several weeks. In most instances it is best if the plaintiff is in court every day during the trial. Exceptions to this rule have to be made for clients who are catastrophically injured and are physically incapable of sitting in a courtroom.

Jury selection usually takes a day to complete, but can take longer in a case that will take several weeks to try. After a jury is selected, they receive preliminary instructions from the judge. Following this, all parties present their opening statements. After opening statements, the plaintiff patient presents his witnesses; preferably the fact witnesses are called first, followed by the expert witnesses. The defense will call their witnesses after the plaintiff completes his case. The parties will then provide the jury with their summations, the judge will charge the jury and then the jury will deliberate until a verdict is reached.

Post Trial Motions and Appeals.

A case is not necessarily over when a jury returns a verdict. If the trial judge made a mistake on a legal ruling of consequence either party may move to set aside the verdict and request a new trial. Additionally, legal rulings of the trial court can be appealed. Frequently, when a physician loses a malpractice trial they will file an appeal and attempt to negotiate a settlement that is less than the verdict. Your attorney will provide you with guidance throughout this process.

Shoulder Dystocia and the Duty of Informed Consent

Initially published in Medical Malpractice Law and Strategy Vol. 29, Number 6, March 1, 2012

Shoulder dystocia is a birth complicated by a failure to deliver the fetal shoulders through gentle downward traction on the fetal head. It poses an obstetric emergency, and is associated with brachial plexus injuries, fractures of the clavicle and humerus, and in some severe cases, hypoxic-ischemic encephalopathy and even death.

Shoulder dystocia can occur when there is impaction of either: 1) the anterior fetal shoulder behind the maternal pubis symphysis; or 2) the posterior fetal shoulder on the sacral promontory. Fetal macrosomia (a.k.a. “big baby syndrome”) and maternal diabetes increase the risk of encountering shoulder dystocia during a delivery. In addition, other antepartum conditions can also forecast that a delivery is at an increased risk for shoulder dystocia, including maternal obesity, multiparity, post-term gestation, previous history of a macrosomic birth and a previous history of shoulder dystocia.

With this array of possible indicators for shoulder dystocia, when must the physician bring the possibility of this complication to the patient’s attention in order to obtain informed consent for or against induced labor or cesarean section?

ACOG Guidance Insufficient

The American Congress of Obstetricians and Gynecologists (ACOG) offers some guidance concerning the duty of the physician to obtain informed consent from a patient at risk of a delivery completed by shoulder dystocia. ACOG takes the position that “planned cesarean delivery to prevent shoulder dystocia may be considered for fetal macrosomia with estimated fetal weights exceeding 5000 grams in women without diabetes [11 lb .36 oz] and 4,500 grams [9lb 14.73 oz] in women with diabetes.” Robert J. Sokol et al., ACOG Practice Bull. No. 40: Shoulder Dystocia, Compendium of Selected Publications, 682-687 (2002) (replaces Practice Pattern No. 7, Oct. 1997). Id. at 684. ACOG’s position about when it is appropriate for a physician to consider offering an expectant mother the option of a cesarean section when there is a diagnosis of fetal macrosomia seems overly rigid. First, ACOG concedes that ultrasonogaphy is not always an accurate predictor of macrosomia. Id. at 683. Second, while ACOG has suggested that a baseline level weight should be used to trigger when it is acceptable to consider a cesarean section due to a suspicion of macrosomia, the organization simultaneously recommends that when a mother has a prior history of encountering shoulder dystocia during labor and delivery, several factors need to be taken into consideration when discussing the risks and benefits of an elective cesarean section with the patient, including estimated fetal weight, gestational age, maternal glucose intolerance and the severity of the prior neonatal injury.

Issues of logical consistency aside, it would be a mistake to conclude that ACOG Practice Bulletin No. 40 sets forth the standard of care regarding when it is appropriate to discuss a planned cesarean section with an expectant mother in the face of evidence suggesting an increased risk of encountering shoulder dystocia during a delivery. A physician’s duty of informed consent is governed by state law, and different states have different legal requirements about how this obligation must be fulfilled. Moreover, common law and statutory law governing a physician’s duty of informed consent can evolve and change.

Consider State Law

State law is not uniform regarding what a physician must do to meet his or her obligation of informed consent. First, some states hold that a doctor’s duty of informed consent involves only disclosure of risks that are customarily disclosed by physicians. Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician’s Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). Arkansas is a state that follows this approach. It has a statute that requires a plaintiff alleging a breach of a duty of informed consent to prove that the information the doctor failed to provide “would customarily have been given to a patient” in the plaintiff’s circumstances “by other medical care providers with similar training and experience” and “in the locality in which the medical care provider practices or in a similar locality.” A.C.A. § 16-114-206.

Other states take the position that a substantial risk must be disclosed to a patient in order for a physician to meet his duty of informed consent, unless the physician can demonstrate that there is either a local or a national standard that suggests that nondisclosure is appropriate. This second standard was used by the Colorado Court of Appeals in Stauffer v. Karabin, 492 P2d 862, 865 (Colo. App. 1971).

A third view is that a doctor’s duty of informed consent is measured by what a reasonable physician would disclose in similar circumstances. This is the approach the Supreme Court of Kansas took in Natanson v. Kline, 350 P.2d 1093, 1106 (1960).

The first three views regarding a doctor’s duty of informed consent have been characterized as the “traditional” or the “professional” standard formulation of a doctor’s duty of informed consent. D. Louisell and H. Williams, Medical Malpractice § 22.08 at 22-23 (1987). The “professional” standard “rests on the belief that a physician, and only a physician can effectively estimate both the psychological and physical consequences the risk inherent in a medical procedure might produce [in] a patient.” Largey v. Rothman, 110 N.J. 204, 210 (1988).

In 1972, a new standard of disclosure for informed consent was established by the United States Court of Appeals for the District of Columbia Circuit in the case of Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. den., 409 U.S. 1064 (1972). Under this fourth view of informed consent, the scope of the information a physician is required to disclose is measured by “the patient’s need for information material to his decision whether to accept or reject a course the proposed treatment.” This fourth standard of informed consent is known as the “prudent patient” or “materiality of risk” standard. Under this view, for a physician to meet his duty of informed consent, he must disclose all information that is material to a patient’s decision. Canterbury, supra, at 786-787. A risk is material “when a reasonable patient, in what the physician knows or should know to be the patient’s position, would be ‘likely to attach significance to the risk or cluster of risks’ in deciding whether to forego the proposed therapy or to submit to it.” Largey, supra, at 211-212 (quoting Canterbury, supra, at 787).

Conclusion

In those jurisdictions adapting the “traditional” or “professional” standard formulation of the duty of informed consent, ACOG Practice Bulletin No. 40 could certainly influence an analysis of the amount of information and options a physician is required to offer to an expectant mother when there is antepartum evidence suggesting an increased risk of shoulder dystocia. Nevertheless, jurisdictions that have adopted the more modern “prudent patient” or “materiality of risk” standard of informed consent reject the notion that a physician’s obligation to provide information is limited to what is disclosed under the customs and practices of the medical profession. Consequently, it would be prudent for obstetricians to look beyond ACOG Practice Bulletin No. 40 and examine their states’ legal requirements regarding the duty of informed consent when making office policy decisions about when to speak to patients about planned cesarean delivery in the face of antepartum evidence suggesting an increased risk of shoulder dystocia during delivery.

Seven reasons why falsification of records is usually not a problem in a medical malpractice case.

When clients contact me about a potential medical malpractice case, more often than not one of their concerns is the possibility that a medical provider might falsify records to hide evidence of negligence.

Unfortunately, falsification of records is possibility in any medical malpractice case. I have seen a variety of attempts at this through the years. The most egregious example involved a plastic surgeon who literally created an entirely new set of office records so that he could claim that he provided my client with the appropriate informed consent. Usually, however, when medical records are altered, the result is more subtle. Sometimes an extra notation is added to a record to suggest a certain action was taken. Other times, a diagnostic report or consultation letter is removed from a physician’s chart to suggest the doctor was unaware of something that should have provoked action. Occasionally, a doctor will suggest that he communicated information to a patient when, in fact, he did not.

Here are seven reasons why falsification of records does not pose a major problem in a medical malpractice lawsuit:

  1. There are motivators in place to discourage medical providers from falsifying records. First, falsifying a medical record is a crime, for which a doctor can be criminally prosecuted. Second, falsification of records is an independent civil cause of action (fraudulent concealment or spoliation of evidence) that can expose a medical provider to punitive damages. Finally, a medical providers insurance carrier may attempt to disclaim coverage when medical records are falsified.
  2. Forensic experts can review a record and tell whether a record has been altered. Expert document examiners can analyze medical records and determine whether they have been tampered with. They can detect differences in ink, look for the presence or absence of indentations on sheets above and below the questioned document, and perform chemical analysis of documents to expose fraudulent changes.
  3. It is very difficult for medical providers to successfully falsify medical records in an institutional setting. In a hospital, there are usually multiple actors creating contemporaneous records who are concerned with and writing about the same facts. Therefore, if a doctor changes a part of one record, it will often be inconsistent with what is written by other doctors and nurses. This is especially true because when an unexpected outcome occurs in a hospital setting, those who are not responsible for the outcome tend to chart defensively and provide more detail in records so that they are not implicated when a review of the care is undertaken by the hospital, or later in a civil litigation.
  4. Falsification of records create a void or disruption in the timeline of care. Records related to medical care create a coherent timeline where causes and effects can be evaluated after the fact. If an individual changes a key fact in the timeline, this stands out and creates suspicions. At that point, forensic experts can be consulted to review a record if other aspects of the chart do not corroborate that a record has been altered.
  5. Falsifying records after the fact can be perilous if the records have already been distributed to other people. Health care providers share their records with other doctors, and this happens frequently. Consultation notes, diagnostic tests results and preoperative clearances are forwarded to referring physicians, health insurance carriers and hospitals. If there is more than one version of the same record, there is a good chance that this will come to light when records are assembled by attorneys in a medical malpractice case.
  6. Records falsified after the fact will conflict with billing records. Billing records are submitted to Medicare, Medicaid and insurance companies close in time to when medical care is provided. In addition to dates of treatment, billing records often contain diagnostic codes. When medical records are falsified they will often be contradicted by a medical providers billing records.
  7. If a doctor falsifies a record about a pertinent issue in your case, they are often helping, rather than hurting your case. If a doctor falsifies a medical record and you can prove this, you have the best proof possible on that issue available, since they would not bother changing a record to hide or add a fact if it was not important to a patient’s care and a potential litigation.

Settlement at trial of over $1.4 Million in Orthopedic Malpractice Case on behalf of Livingston, New Jersey resident following Jury Selection.

The plaintiff injured his left elbow when he fell after his scooter struck a hole in a residential street. The following day, he came under the care of the defendant, a pediatric orthopedic surgeon, who performed surgery. Following the surgery, the plaintiff was casted. Approximately six weeks later, when the cast was removed, the plaintiff had little range of motion in the left elbow joint. Within weeks, the joint completely froze. After visiting several orthopedic surgeons in New York City for second opinions, the plaintiff was advised that he required major reconstructive surgery because his left elbow fractures healed in a place higher than their original location.

Suit was filed against the defendant physician and two entities who had responsibilities related to maintaining the street where the accident occurred. The case was litigate for three years and it involved complex issues of causation and apportionment of responsibility.

The plaintiff’s medical expert opined that the elbow fractures healed in the wrong position because they were pinned in the wrong place by the defendant during the surgery. The expert further opined that if the defendant had performed the surgery appropriately, the plaintiff would have been left with a functioning pain-free left elbow, with minimal loss of motion. The defendants argued that the fractures were pinned correctly, but drifted following the removal of the surgical pins six weeks later.

Despite undergoing multiple surgeries to correct the malaligned joint, the plaintiff is left with a 30% functioning left elbow.

Partners John Ratkowitz and Amos Gern settled the case following jury selection prior to opening arguments.

Settlement on Behal of 64-Year-Old Resident of Monroe Township who Suffered Stroke as a Result of a Failure to Diagnose Endocarditis

The plaintiff began to suffer flu-like symptoms in August 2002. When they persisted, he became concerned that he might be suffering from Lyme disease. Two weeks earlier he was bitten by an insect at a golf outing. When he reported this history to the defendant, his primary care physician, he was placed on prophylactic antibiotics and blood tests were ordered to rule-out the possibility of Lyme disease.

Three years before he began to suffer from flu-like symptoms, the plaintiff was found to have a heart murmur during an Executive Physical performed by another physician. The plaintiff advised the defendant of this diagnosis, and the defendant primary care doctor referred the plaintiff to a cardiologist for an echocardiogram. Investigation revealed that the defendant failed to follow-up on the echocardiogram he ordered, and never ascertained the results of that test and did not know that the plaintiff was suffering from a grade III/IV diastolic murmur and aortic regurgitation, a condition which made the plaintiff susceptible to bacterial endocarditis.

Although the plaintiff’s lab studies were available on September 5, 2002, the defendant did not review them until September 16, 2002. Despite the fact that the test results came back negative for Lyme disease, the defendant continued to treat the plaintiff for that condition throughout the remainder of September and into October 2002. Ultimately, the plaintiff suffered a stroke on October 21, 2002. He was admitted to the hospital and found to have vegetations on his heart caused by bacterial endocarditis. The plaintiff underwent intravenous antibiotics to combat the infection. In early 2003 he was admitted to the hospital for aortic valve replacement surgery and repair of the mitral valve.

It was the plaintiffs’ contention that accepted standards of medical care required the defendant physician to entertain Bacterial endocarditis in his differential diagnosis, and that he failed to do so because he did not obtain the results of the echocardiogram he ordered and did not know that the plaintiff was susceptible to this disease. The defendant maintained that accepted standards of medical care did not require him to diagnose the plaintiff with endocarditis because it is a rare disease.

Attorney John Ratkowitz represented the plaintiffs. The case was assigned to trial. Jury selection and opening statements took place. The plaintiffs called the defendant doctor as their first witness. The case settled prior to the conclusion of his testimony.

Retinal Surgeon agrees to $600,000 Settlement After Two Days of Trial.

On March 3, 1998, the plaintiff reported to his regular ophthalmologist with an emergency that had begun four days earlier when he developed large floaters in his left eye accompanied by flashing and limited visual acuity. He further complained of having developed a black spot in the left temporal periphery of the left eye which began on March 2, 1998 and continued. The ophthalmologist examined the eye and diagnosed a retinal detachment, which he drew in a fundus drawing of the eye (clock-like) as encompassing an area of 2 clock hours. He also found retinal folds and a possible retinal tear. As a result of his findings that evening, the ophthalmologist immediately called the defendant retinal specialist in his group and advised her of his findings. An appointment was arranged for the very next morning (March 4, 1998 at 9:00 a.m.), and according to the plaintiff, he was advised by his ophthalmologist to prepare himself for emergency retinal surgery. As a result, the plaintiff, accompanied by his wife, consulted the retinal specialist the morning of March 4, 1998 . He had intentionally not eaten so that emergency surgery could take place. By the time he was examined again, his retinal detachment that had more than doubled in size and now encompassed approximately 5 clock hours on the fundus drawing made by the defendant. She also found a 2 clock hour retinal tear with a rolled posterior edge. At the same time, she noted lattice degeneration (a thinning of the retina) in the left eye and made a note that she would have to examine the right eye in due course to determine if a similar condition existed in that eye. In spite of the severe risk of further deterioration to the left eye, the defendant did not perform surgery on March 4, 1998, and instead arranged for surgery the following day, which did not begin until after 2 p.m. Although the defendant alleged that no hospital operative suite was available to do the surgery on March 4, 1998, testimony would have been presented by the plaintiff from a former employee of the hospital that one was available on March 4, 1998. Also, written procedures were in place to allow a physician with an emergency patient to bump other surgeries.

The defendant retinal specialist had determined that plaintiff required a scleral buckle procedure to repair the retinal tear and the retinal detachment in the left eye. This procedure, which also involves the freezing of the retinal tissue with a welding type of procedure to repair the tear, entails the wrapping of a silicone band around the eye to force the retina back against the back of the eye so it can heal. Unfortunately, prior to the procedure beginning, the defendant examined the left eye and found additional pathology: the retinal tear had expanded to a “giant” tear encompassing a full quadrant of the eye, blood was found in the vitreous of the eye, and a second retinal tear had developed in the upper portion of the same eye. This progression of symptoms and pathology indicated severe vitreous traction causing posterior vitreous detachment which was damaging the retina, and could no longer be remedied by a simple scleral buckle procedure. Rather, at that point, the plaintiff required a vitrectomy to remove the entire vitreous in the eye, and replace it with a fluid or a gas, which holds the retina in place, after the retinal tears are repaired, and alleviates the tractional forces pulling at the retina which cause further injury. This procedure should have been combined with the scleral buckle.

In the days following the surgery, the plaintiff continued to have severe vitreous hemorrhage to the point where the retina could not be adequately examined without ultrasound. It was not until March 20, 1998 that the defendant determined that the vitrectomy was necessary to alleviate the plaintiff’s conditions, at which point surgery was scheduled for March 25, 1998. Unfortunately, by that time, the plaintiff had developed a total retinal detachment involving all 12 clock hours of the fundus, and now was detached at the macula, which is the center of fine detailed vision in the eye. Further, the second retinal tear which had been found during the March 5, 1998 surgery at the top of the left eye, had now also become a giant retinal tear. Following the March 25, 1998 surgery, the plaintiff continued to deteriorate and developed a complete deterioration of the eye which caused it to shrink and become useless. A year later, the eye was surgically removed and plaintiff now has a prosthetic eye on the left side.

As previously noted, the defendant also failed to examine the right eye during plaintiff’s first visit on March 4, 1998. This failure continued for several months, and at no time was the right eye examined or treated prophylactically for probable lattice degeneration, a thinning of the retina. Plaintiff’s contended that this thinning was in the superior, or upper, portion of the eye, which went on to suffer a retinal detachment in March of 2000, two years later. This resulted in multiple surgeries on the right eye, which were only modestly successful and have left that eye legally blind.

The defendant contested these allegations and argued that the delay in performing surgery was not meaningful under the circumstances. Further, it was argued that the determination to perform a scleral buckle procedure alone, without a vitrectomy, was a matter of medical judgment, which was justified under the circumstances. The defendant further argued that although it was negligent to fail to examine the right eye both initially and in the months of treatment thereafter, the retinal detachment sustained in the right eye was unrelated to that negligence and not her fault. In support thereof, the defendant would have argued that the new retinal surgeon who treated the right eye performed the combination of a scleral buckle and vitrectomy (as plaintiff contends had been necessary to treat the left eye), and nevertheless, complications resulted in substantial loss of plaintiff’s vision in that eye as well. Lastly, the defendant would have presented a strong Scafidi defense seeking credit for plaintiff’s pre-existing conditions in both eyes, to the extent they were not the defendant’s fault.

Attorneys Amos Gern and John Ratkowitz resolved the case after two days of trial.

Results | NJ Medical Lawyer

Wayback MachinesuccessfailAbout this captureCOLLECTED BY Organization: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. Collection: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. TIMESTAMPSloadingMedical Malpractice LawyersMay 7, 2016doctorPublished by JohnRatkowitzat May 7, 2016Categories The plaintiff underwent a root canal procedure in anticipation of a crown and eventual bridge. During the root canal sodium hypochlorite leaked into the plaintiff’s gums […]Do you like it?0Read moreApril 1, 2016nj-medical-malpratice-lawyer-300x200Published by JohnRatkowitzat April 1, 2016Categories The plaintiff discovered a lump on the right side of her neck while showering. She consulted with her primary care physician who placed her on antibiotics […]Do you like it?0Read moreJune 27, 2015nj-medical-malpratice-lawyer-300x200Published by JohnRatkowitzat June 27, 2015Categories The plaintiff underwent multi-level spinal surgery in June 2011. She was admitted to a rehabilitation hospital and after six weeks she was diagnosed with a pressure […]Do you like it?0Read moreDecember 13, 2013essex-county-new-jersey-medical-malpractice-lawyer-300x200-copyPublished by JohnRatkowitzat December 13, 2013Categories The plaintiff had been under the care of the defendant physician for two years when, on January 4, 2001, she reported to his office complaining of […]Do you like it?0Read moreDecember 13, 2013nj-medical-malpractice-lawyerPublished by JohnRatkowitzat December 13, 2013Categories On July 18, 2001, the plaintiff was forced into a concrete divider while traveling eastbound on Route 46 in Totowa, New Jersey, when an unidentified driver […]Do you like it?0Read moreDecember 13, 2013new-jersey-malpractice-attorney-300x225Published by JohnRatkowitzat December 13, 2013Categories The plaintiff began to suffer flu-like symptoms in August 2002. When they persisted, he became concerned that he might be suffering from Lyme disease. Two weeks […]Do you like it?0Read moreDecember 13, 2013nj-medical-malpratice-lawyer-300x200Published by JohnRatkowitzat December 13, 2013Categories The plaintiff was a resident of Lakehurst, New Jersey. He underwent a second spinal surgery on November 27, 2000. It was the plaintiff’s contention that the […]Do you like it?0Read moreDecember 13, 2013nj-malpractice-lawyer-200x300Published by JohnRatkowitzat December 13, 2013Categories At 4:00 a.m. on May 24, 2001, the mother was admitted to Labor and Delivery. Initial fetal heart rate measurements were noted to be in the […]Do you like it?0Read moreDecember 13, 2013Emergency Entrance With Security VehiclePublished by JohnRatkowitzat December 13, 2013Categories The plaintiff underwent spinal surgery on October 12, 2004. During the operative procedure, a surgical screw was negligently placed, and as a result it was lost […]Do you like it?0Read moreDecember 13, 2013new-jersey-malpractice-attorney-300x225Published by JohnRatkowitzat December 13, 2013Categories The plaintiff visited the defendant plastic surgeon in order to address what she observed to be sagging in her breasts. Rather than recommending a simple mastopexy […]Do you like it?0Read moreLoad more

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JOHN RATKOWITZ

John Ratkowitz is a partner at Starr, Gern, Davison & Rubin, P.C., a mid-sized Roseland, New Jersey firm that traces its origins back to 1926. On November 1, 2012, Starr, Gern became one of nine law firms in New Jersey recognized as a Tier 1 Best Law Firm by U.S.News and World Report in the field of Plaintiffs Medical Malpractice. © 2016 NJ Medical Lawyer. All Rights Reserved.

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Wayback MachinesuccessfailAbout this captureCOLLECTED BY Organization: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. Collection: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. TIMESTAMPSloadingMedical Malpractice LawyersDecember 13, 2013Surgical MalpracticePublished by JohnRatkowitzat December 13, 2013Categories Dealing with defense expert testimony consumes more resources than any other aspect of a medical malpractice case. Nevertheless, if a medical malpractice case has merit and […]Do you like it?0Read moreDecember 13, 2013Stethoscope laying over doctors emergency report medical documentationPublished by JohnRatkowitzat December 13, 2013Categories To obtain a comprehensive understanding of your client’s medical case, it is essential that you create a narrative time line of your client’s treatment records. By […]Do you like it?0Read moreNovember 23, 2013Emergency Entrance With Security VehiclePublished by JohnRatkowitzat November 23, 2013Categories Two Congressional acts – the Omnibus Budget Reconciliation Act of 1987 and the Balanced Budget Act of 1997- resulted in the promulgation of regulations that have […]Do you like it?0Read moreNovember 23, 2013Medical recordPublished by JohnRatkowitzat November 23, 2013Categories According to the Centers for Disease Control and Prevention (CDC), each year one in every three “older adults” (65 years and older) falls. Centers or Disease […]Do you like it?0Read moreNovember 23, 2013new-jersey-malpractice-attorney-300x225Published by JohnRatkowitzat November 23, 2013Categories When an unusual incident involving a patient occurs at a health care facility, it may be the subject of peer review by a committee created within […]Do you like it?0Read moreMarch 17, 2013roseland-new-jersey-medical-malpractice-lawyer-300x218Published by JohnRatkowitzat March 17, 2013Categories Initially published in Medical Malpractice Law and Strategy Vol. 29, Number 6, March 1, 2012 Shoulder dystocia is a birth complicated by a failure to deliver […]Do you like it?0Read moreFebruary 26, 20125-300x107-copyPublished by JohnRatkowitzat February 26, 2012Categories Excerpted from “The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey,” Medical Malpractice Law and Strategy, Volume 26, Number 9, June 2009, by John […]Do you like it?0Read moreJuly 11, 2011nj-malpractice-lawyer-200x300Published by JohnRatkowitzat July 11, 2011Categories Studies Track Reasons for Excessive Medical Tests and Procedures; Fear of Lawsuits Is Not the Culprit Some Expected Those who advocate tort reform often point to […]Do you like it?0Read moreJanuary 11, 2011new-jersey-medical-malpractice-law-firm-200x300Published by JohnRatkowitzat January 11, 2011Categories In November 1999, the Institute of Medicine (IOM), a branch of the National Academy of Sciences, published a study declaring that a threshold improvement in the […]Do you like it?0Read moreSeptember 1, 2010nj-medical-malpractice-lawyer-300x201Published by JohnRatkowitzat September 1, 2010Categories Excerpted from “Never Events in Medical Malpractice Litigation,” September 2010, Vol. 27, No.126. Medical Malpractice Law & Strategy. By John Ratkowitz and Robert Sanfilipo The National […]Do you like it?0Read more12Next page

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JOHN RATKOWITZ

John Ratkowitz is a partner at Starr, Gern, Davison & Rubin, P.C., a mid-sized Roseland, New Jersey firm that traces its origins back to 1926. On November 1, 2012, Starr, Gern became one of nine law firms in New Jersey recognized as a Tier 1 Best Law Firm by U.S.News and World Report in the field of Plaintiffs Medical Malpractice. © 2016 NJ Medical Lawyer. All Rights Reserved.

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Wayback MachinesuccessfailAbout this captureCOLLECTED BY Organization: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. Collection: Alexa Crawls Starting in 1996, Alexa Internet has been donating their crawl data to the Internet Archive. Flowing in every day, these data are added to the Wayback Machine after an embargo period. TIMESTAMPSloadingMedical Malpractice LawyersNovember 19, 2016nj-medical-malpratice-lawyer-300x200Published by JohnRatkowitzat November 19, 2016Categories The Centers for Disease Control and Prevention recommended lowering the dosage of vaccination for human papillomavirus (HPV) to two vaccine doses administered at least six months […]Do you like it?00Read moreJune 18, 2016Surgical MalpracticePublished by JohnRatkowitzat June 18, 2016Categories Inexplicably, nobody is talking about the fact medical malpractice in hospitals is now the third highest cause of death in the United States. So says a […]Do you like it?0Read moreApril 19, 2016Medical recordPublished by JohnRatkowitzat April 19, 2016Categories Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 60 days or so: The American College of Chest […]Do you like it?0Read moreFebruary 6, 2016gynecologyPublished by JohnRatkowitzat February 6, 2016Categories Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so: The Centers for Disease Control […]Do you like it?0Read moreJanuary 12, 2016Emergency Entrance With Security VehiclePublished by JohnRatkowitzat January 12, 2016Categories Here are noteworthy healthcare issues that have appeared in the news and medical journals throughout the last 30 days or so: An article appearing in Pediatric […]Do you like it?0Read moreNovember 13, 2015Stethoscope laying over doctors emergency report medical documentationPublished by JohnRatkowitzat November 13, 2015Categories Here are noteworthy healthcare issues that have appeared in the news and medical journals throughout the last 30 days or so: Issac Itzkoff, of the New […]Do you like it?0Read moreOctober 3, 2015Medical pillsPublished by JohnRatkowitzat October 3, 2015Categories Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so: A study published in Pediatrics […]Do you like it?0Read moreJuly 25, 2015new-jersey-malpractice-attorney-300x225Published by JohnRatkowitzat July 25, 2015Categories Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so: A study published in the […]Do you like it?0Read moreJune 27, 2015nj-medical-malpratice-lawyer-300x200Published by JohnRatkowitzat June 27, 2015Categories Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so: An article published in the […]Do you like it?0Read moreMay 16, 2015roseland-new-jersey-medical-malpractice-lawyer-300x218Published by JohnRatkowitzat May 16, 2015Categories The US Preventive Services Task Force issued new draft recommendations regarding who should undergo mammogram screening and how often. Mammograms were recommended for women between 50 […]Do you like it?0Read more123Next page

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JOHN RATKOWITZ

John Ratkowitz is a partner at Starr, Gern, Davison & Rubin, P.C., a mid-sized Roseland, New Jersey firm that traces its origins back to 1926. On November 1, 2012, Starr, Gern became one of nine law firms in New Jersey recognized as a Tier 1 Best Law Firm by U.S.News and World Report in the field of Plaintiffs Medical Malpractice. © 2016 NJ Medical Lawyer. All Rights Reserved.

New Jersey Medical Malpractice Lawyer

If you have been injured by medical malpractice, you have allot of questions. First, although ethical rules and state law require health care providers to disclose errors, studies demonstrate doctors and nurses seldom tell patients when medical mistakes happen. Consequently, you probably still do not understand how and why an unexpected medical outcome occurred. Second, since secrecy surrounds the mistake, it is unlikely that you have received complete information about the impact an error is having on your health. Making matters worse, in the midst of all of these medical questions, you are suddenly facing issues you worked your whole life to avoid. Loss of income and mounting medical expenses are creating problems for you and your family. All of these questions and uncertainties are magnified because you are trying to tackle these problems with new physical limitations while receiving continuing care.

The Client Resources pages above will provide you with information about how medical malpractice cases are investigated and prosecuted and answer other questions you have. Use the other sections of this website to investigate my firm and the approach we take when clients entrust their malpractice cases to us. If you think we can help you, contact my office. We are experts at getting to the bottom of unexpected medical outcomes and helping clients find solutions to the kinds of problems you are facing.