Partner
In 2015, the New Jersey Supreme Court considered a pivotal medical malpractice case known as Jarrell v. Kaul. In that case, plaintiff Jarrell was under the care of Dr. Kaul, who was a board-certified anesthesiologist and pain management provider. Also routinely performing minimally-invasive back surgeries, Dr. Kaul operated on Mr. Jarrell to help relieve the effects of a herniated lumbar disc, lumbar radiculopathy, and discogenic back pain. Unfortunately, the procedure merely shifted the pain to the plaintiff’s right side, and caused a drop foot and significant lifestyle restrictions.
In filing a medical malpractice claim against Dr. Kaul, Mr. Jarrell was made aware that the doctor did not carry medical malpractice insurance as required by Section 45:9-19.17 of the New Jersey Statutes Annotated. The plaintiff also advanced a claim against the hospital for allowing an uninsured doctor to enjoy privileges in the facility. After a lengthy procedural history, the case ended up at the New Jersey Supreme Court over the following specific inquiries:
- Whether a patient may sue an uninsured physician directly;
- Whether a doctor violates “informed consent” laws by failing to tell the patient he or she is not insured, and;
- Whether a healthcare facility has a duty to monitor a physician’s compliance with malpractice insurance laws.
With regard to the first question, the Court closely reviewed the legislative history as pertaining to medical malpractice claims – concluding that individual patients do not have a direct cause of action under New Jersey law against an uninsured provider.
Second, the Court considered with the absence of malpractice insurance would be a material fact to a reasonable patient, and whether the withholding of that information would violate the patient’s rights to informed consent. In answering that question, the Court concluded that the absence of malpractice insurance “bears no relation to the nature of the proposed medical course or to the risks attendant to a proposed procedure or treatment.”
Lastly, in a victory for the plaintiff, the Court found that the medical facility did have a duty to monitor its physicians’ compliance with malpractice insurance laws. While the Court’s holding seemingly strips patients of rights to recover against an uninsured provider, the plaintiff may still be able to recover against the facility having deemed him or her fit to practice medicine – a notion the Court labeled as a “basic matter of competency.”
If you have been injured because of a medical mistake, you should consult with a personal injury attorney with expertise in medical malpractice.