Medical Malpractice Claim Thrown Out Due to New Case Law Allowed to Proceed

By Greg Kohn

Medical malpractice is a type of personal injury claim and, just like many other personal injury actions, there are certain technical requirements that must be fulfilled before a case can be filed. The State of New Jersey, along with many other states, requires that a document called an affidavit of merit be submitted before a medical malpractice claim is filed.  An affidavit of merit is a sworn statement that attests that the claim being brought is of substance in light of the particular circumstances.  These documents are usually signed by a medical professional that is serving as an expert witness.  Although an affidavit of merit has been necessary in New Jersey for many years, in 2013 the specific requirements pertaining to medical malpractice cases changed. Now, the affidavit must be made by a medical professional that is an expert in the same area as the defendant. The changes in the law had an effect on many cases, including those that had already been filed.

The effects of the case law are displayed by the following case.  After a car accident, Veronica Williams had to have surgery for spinal injuries. She was operated on by Dr. James Lowe, a neurologist, and Dr. Joseph Zerbo, an orthopedist.  Both doctors held themselves out as experts in spinal surgery.  Williams was discharged and sent home where she began having difficulty breathing.  She returned to the hospital and was found to have a tear in her pharynx that resulted from the surgery. Williams needed two additional surgeries to treat the tear.

Williams brought a medical malpractice case in the Atlantic County Superior Court.  She filed an affidavit of merit from Dr. Gregory Przybylski, a neurologist and spinal surgery expert.  After three years of pre-trial proceedings, the judge found the affidavit of merit invalid based on the 2013 case law changing the requirements.  He held that the affidavit was not valid as to the defendant Dr. Zerbo because Dr. Pryzbylski was not an expert in the same field.  The judge gave Williams time to find another expert, but, then on a motion for reconsideration, decided that the time was expired and dismissed the claims against Dr. Zerbo.  Williams appealed and the Appellate Division found that the lower court’s ruling was incorrect.  They held that because the purpose of an affidavit of merit was to ensure that the claim was not frivolous and that this was already evident in this case, it was unfair to punish the plaintiff based on a last minute change in the law.

Medical malpractice can have a huge impact on your life.  Do not let a technicality ruin your chances of being compensated.  If you think that you may have a medical malpractice claim you should contact the Essex County, New Jersey attorneys at Nagel Rice for a consultation.  Call us at (973)618-0400.

About the Author
Greg Kohn is a partner at Nagel Rice and specializes in complex civil litigation cases, including professional malpractice, personal injury, class actions, wrongful death, products liability, and commercial litigation.  He has extensive experience representing clients in both state and federal court. Greg has tried many jury trials to verdict and has recovered over $50 million in settlements and verdicts in all types of personal injury matters including automobile accidents, wrongful death cases, slip and falls, and other catastrophic injury cases. Greg also handles medical malpractice cases, involving misdiagnoses, wrongful birth, and delayed cancer diagnosis. If you have questions regarding this article, you can contact Greg here.