579 cherin rd freehold nj

Case Study

Medical Malpractice Report

In this assignment you will examine the legal and ethical implications of medical malpractice. Read the case study here:

please see the attachment?????

Write a four- to five-page report to the chief executive officer for the healthcare facility to assist him in gaining a better understanding of what occurred and the legal implications for the organization.

Your report should address the following substantive requirements:

Describe what occurred, who was affected, and why
Assess the case from the following perspectives:
Ethical – identify the ethical principles involved in this situation from the perspective of the patient, pharmacist, and the organization.
Legal – what are the legal implications and what laws were involved?
Provide recommendations for how to manage this case from the perspective of the healthcare organization. What could have been done to prevent this situation?
Recommend implementation of procedures to prevent this from occurring in the future.
Your well-written report should meet the following structural requirements:

Be four to five pages in length, not including the cover or reference pages.
Formatted according to APA writing guidelines.
Provide support for your statements with in-text citations from a minimum of four scholarly articles. Two of these sources may be from the class readings, textbook, or lectures, but two must be external.
Utilize headings to organize the content in your work.

20 th

ANNUAL MEDICAL

MALPRACTICE UPDATE

Moderator/Speaker Michael A. Ferrara, Jr., Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney The Ferrara Law Firm, LLC (Cherry Hill; Philadelphia, PA)

Speakers Honorable John E. Harrington, P.J.Cv. (Mt. Holly) William L. Brennan, Esq. The Law Office of William L. Brennan (Shrewsbury) Paul M. da Costa, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Snyder Sarno D’Aniello Maceri & da Costa LLC (Roseland, Bridgewater, Hackensack) Alexis Aloi Graziano, Esq. Buchanan Ingersoll & Rooney PC (Princeton) Jonathan H. Lomurro, Esq., LL.M. Lomurro Munson Comer Brown & Schottland, LLC (Freehold, Toms River, East Brunswick)

In cooperation with the New Jersey State Bar Association Medical Malpractice and Senior Lawyers Special Committees S0505.16

Peter L. MacIsaac, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Chasan Leyner & Lamparello, P.C. (Secaucus) Bruce H. Nagel, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Nagel Rice, LLP (Roseland) Julie E. Nugent, Esq. Weiss & Paarz, P.C. (Northfield) Mary Ann C. O’Brien, Esq., LL.M. Crammer, Bishop & O’Brien, P.C. (Absecon, Medford) Francisco J. Rodriguez, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. (Jersey City) Debra Urbanowicz-Pandos, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney The Pandos Law Group, LLC (Far Hills)

© 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520.

Table of Contents Page Helpful Trial Tips – How to Effectively Use Computers and iPads at Trial Francisco J. Rodriguez 1 Trial by iPad: The Hardware You Will Need 2 Using a Laptop Computer for Trial 8 Apps for Trial With the iPad 8 Applications for Use on a Laptop 11 Excerpt from Trial Brief 13 Does Meehan v. Antonellis, 226 N.J. 216 (2016) Finally Clarify the Affidavit of Merit Issue? Mary Ann C. O’Brien, Esq. LL.M. 17 Intro 17 History Leading Up to Meehan v. Antonellis, 226 N.J. 216 (2016) 17 Prior to the Affidavit of Merit Statute 17 Affidavit of Merit Statute 17 Ferreira v. Rancocas Orthopedic Assocs. 17 Patients First Act (“PFA”) 18 Buck v. Henry 18 R. 4:5-3 18 Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) 18 Facts and Procedure 18 Issues for Supreme Court 19 Analysis 19 Holding 20 Summary 21 Questions Remaining After Meehan: Does It Finally Clarify the AOM Issue? 21 Charitable Immunity & Practice in Federal Court Julie E. Nugent, Esq. 23 New Jersey Charitable Immunity: The Basics 23 New Jersey Charitable Immunity and Federal Clinics 24 Important Discovery on the Issues of Charitable Immunity 25 Federal Tort Claims: General Practice Tips 26 New Jersey Charitable Immunity: A Case Law Summary 27 “Charitable Purposes” Case Law 27 “Hospital Purposes” Case Law: Kuchera 33 NJ Charitable Immunity in Federal Court: A Case Law Summary 36 Attachments Sample Supplemental NJCIA Interrogatories 41 Notice to Produce #2 47

In Limine Motions in Medical Malpractice Trials Bruce H. Nagel, Esq. 53 Spada v. Vasireddy Jury Charge 55 Jury Verdict Form 59 Scafidi Jury Charge 61 Scafidi Jury Verdict Form 71 Flood v. Aluri-Vallabheneni 77 Estate of Kotsovska v. Liebman 91 Kranz v. Schuss, et al. 111 Nevins, et al. v. Pan, et al. 121 Estate of D’Avila v. Hugo Neu Schnitzer East, et al. 127 Hottenstein v. City of Sea Isle City, et al. 155 Putting Civility Back in Civil Litigation Debra V. Urbanowicz-Pandos, Esq. 167 Bounds of Representation – Evolution of Diligence 167 Civility, Professionalism and Respect 167 Aggressive Advocacy vs. Zealous Advocacy 167 Core Principles of Civility 168 Future of Civility in New Jersey 168 Q: Can Doctors Set the Standard of Care for Nurses? A: It Depends… PowerPoint Slide Alexis Aloi Graziano, Esq. 169 Attachment Lauckhardt v. Jeges, et al. 171 Review of 2016 Cases Not Involving AOM William L. Brennan, Esq. 181 Relevant Cases Bernetich, Hatzell & Pascu, LLC v. Medical Records Online, Inc. 185 Castello v. Wohler, M.D. 191 Jarrell v. Kaul, M.D., et al. 203 Kleine v. Emeritus at Emerson, Brea Emerson, LLC, et al. 217 McCormick v. State of New Jersey 223 T.T. v. Cohen, M.D., et al. 229 Cho, et al. v. Trinitas Regional Medical Center and NJ Heart, et al. 231 Worthy v. Kennedy Health System, et al. 237 About the Panelists… 247

HELPFUL TRIAL TIPS – HOW TO EFFECTIVELY USE COMPUTERS AND IPADS AT TRIAL

Francisco J. Rodriguez

frodriguez@lawjw.com

This paper serves as a primer for everything technological that you will need in order to be able to use an iPad or computer at trial for displaying demonstrative evidence. This paper will be followed by a trial brief for the court that you can use on the use of demonstrative evidence and technology, which assembles the limited case law that exists on the use of such items.

In addition, if your adversary does not agree to the use of a particular exhibit, you should seek out a certification from one or more of your experts attesting to the accuracy of the anatomy presented in the exhibit or to the accuracy of whatever it is that the exhibit is purported to show. Of course, the preferred method of making sure that there is no issue with presenting particular demonstrative evidence at the trial is to have these items ready when you depose the defendants concerning discovery and have them admit that the particular item of demonstrative evidence is accurate. A certification from your expert as to a particular item of demonstrative evidence should only be used in a pinch when you have come up with a new demonstrative evidence item after discovery is over and before trial. Finally, it is always worth presenting the court with a trial brief that interweaves the demonstrative evidence into the brief. This allows the court to gain a full understanding of your case and how these demonstrative items help you present it.

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mailto:frodriguez@lawjw.com
Trial by iPad: The Hardware You Will Need

The first item you will need is an iPad. As of the time of the writing of this paper, I recommend the iPad Pro with the 256 gigabytes of memory.

The reason for the iPad Pro is that the screen is larger and resolution is better than the smaller iPads. For most trial presentation items, this is not that important. However, it is quite common that you may want to display two pages of medical records side by side in a medical malpractice case. With the smaller iPads, it is difficult if not impossible to read the text on your screen when the documents are displayed side by side. This makes it difficult in making certain that you are displaying the right documents to the jury before actually displaying them on the projector screen or flat panel. Having a keyboard case for the iPad Pro is helpful but not an absolute necessity for trial. I would certainly recommend it. The reason for having the maximum amount of memory is for the potential that you may have videotaped testimony to store and present for your trial. Video takes up a lot of memory. So it is best to get the most memory available, which is presently 256 gigabytes.

Second, you need to have an adaptor cable and dongle to connect your iPad to the projector or television flat panel you are going to use. Below is a picture of the HDMI version of the dongle:

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Below is a picture of an HDMI cable:

! There are two types of dongles, an HDMI dongle and a VGA dongle. This is a picture of a VGA dongle:

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The one you will want will depend on the device to which it is being connected. If you are buying devices from scratch, you should definitely purchase HDMI-compatible devices because the resolution is better. Besides the dongle, you will need lengthy cable between the dongle and your output display device, whether that is a projector or flat panel. If you are going to use an Apple TV box (described below), you can get away with a much shorter cable. Otherwise, you should probably purchase one that is at least 10 feet long, even longer if you are using a flat panel. Even if you plan on using your iPad wirelessly, you should have these cables at the ready just in case you have a problem with your wireless connection.

Third, you need to purchase an Apple TV adapter.

The Apple TV box will allow you to display wirelessly. The one-time setup is easy. You will still need a connection between the Apple TV and your flat panel or projector, but having the Apple TV available means that you can position your iPad wherever you want in the courtroom because there will be no connection between the iPad and the Apple TV. You will be connected wirelessly. If you have an old Apple TV, it is worth purchasing a new one because the old Apple TVs also required you to have a wireless Ethernet hub in order to establish the wireless connection between your iPad and the Apple TV. For at least the last 2 years, the new Apple TVs do not require the wireless network Ethernet hub. You can connect directly from your iPad to the Apple TV. Then,

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you will need a cable that connects your Apple TV to your projector or flat panel, and that will be either an HDMI cable or a VGA cable depending on your output device. Again, if you can get a hold of an HDMI output device, you will be better off.

Fourth, you will need an output device. This is either a projector and projector screen or a flat panel TV.

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! If you are going to use a flat panel TV, you should purchase one that has HDMI connectors and that has the capability of flipping the image so that the flat panel can be turned on its side. Many of the documents and exhibits that we display are set up in portrait mode where the original image was 11 inches tall by 8 ½ inches wide. Even on a gigantic flat panel TV, these documents still appear relatively small if displayed with the TV sitting in its normal landscape fashion. You will also need a cart that will permit

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you to wheel the flat panel into position as well as wheel it into the courthouse and courtroom. This is one of the disadvantages of using a flat panel instead of a projector and projector screen. You will almost definitely need someone to assist you in getting the equipment into the courthouse and with positioning everything. Whereas you can get away without assistance if you use a projector and projector screen.

If you are going to use a projector and projector screen, which is my preference, you should spend on the highest lumens projector you can afford. As of the time of the writing of this paper, you can buy a very nice LED projector for around $1,200.00. The higher lumens is important because this determines the brightness of the light being emitted from the projector. You want to have the brightest image possible, particularly considering that you will not necessarily be able to control how bright the courtroom is. You want to purchase an LED projector versus a DLP projector or other types of projectors because the LED image is better and the bulb is often rated to last 20,000 to 40,000 hours. So it is unlikely to break down or need replacement throughout its lifetime. They also run cooler, and the most expensive ones do not even use a fan to cool them. So you will not have to worry about a fan whirring that will distract jurors or annoy the court. Casio makes very lightweight, high-end LED projectors.

For a projector screen, you want to have a screen that measures at least 72 inches by 72 inches. There are a lot of screens sold today that are much wider than they are taller. This is not as useful for courtroom purposes because most of the items displayed will be upright or portrait rather than landscape. If the screen is smaller than 72 inches, it is a lot lighter to carry around, but it will not allow you to be able to display an image that is larger than life. The great thing about having a 72-inch square projector screen is that on things like medical records, everything will be easy to read for the court and the jury. If you are playing video, it is larger than life. It makes for a great advantage over the flat panel.

You can have a screen larger than 72 inches. I do have a 96-inch screen but have never actually used it. The problem with a 96 inch screen is that transporting it is difficult. It is essentially so big that it is difficult to fit in a regular car and it is difficult to lug in and out of places including elevators. So keep that in mind. Many of the county courthouses now have projector screens that you can use so that you do not have to bring your own. So you should inquire as to what they have. Take note, however, that many of the projector screens in the county courthouses are not so useful. Either they are the widescreen type that does not serve our purposes well, or they are built into the courtroom, and drop from the ceiling or elsewhere, and are positioned in a suboptimal location. Also, on any given day, somebody else may need to use it. So you should have your own screen at the ready. The purchase of a 72 by 72 inch projector screen that is portable should cost about $120.00 at the time of the publication of this paper. Again, the great advantage of using the projector with projector screen over the flat panel is both the ease of portability and positioning along with the ability to display larger than life images, which will be bigger than what could be displayed on the biggest flat panel that you could lug into court.

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You will also want to have some sort of stand on which you can rest your projector, iPad or computer. I recommend the heavy duty stands from a company called inStand.com.

The heavy duty tripod stand with additional tray attachments runs under $400.00 and is worth every penny. The tripod stand is portable, lightweight, and very stable so that it is not likely to knock over a projector or your iPad if someone accidentally bumps in to it. The additional tray attachments permit you to be able to have placed in one tripod both your projector, iPad and laptop computer if need be.

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The foregoing sums up the hardware you would need for using the iPad at trial. The only additional items would be if you were going to get more fancy and seek to display on multiple flat panels or projector screens, you would of course need to double the number of projector screens, projectors, cables and/or flat panels and you would need a signal splitter that would permit you to transmit the images to more than one output device.

Using a Laptop Computer for Trial

Essentially, all the equipment referenced in the section for using the iPad at trial is necessary or useful in the context of using a laptop at trial with the exception of, of course, the iPad. It is particularly valuable to make sure the laptop you will use for trial has the capability of connecting wirelessly with the Apple TV so that the laptop can be used wirelessly. The standard trial presentation software for use with a laptop, Trial Director, being the gold standard, is much more complicated to use and will require someone to assist you even if you are very computer savvy. One of the wonderful advantages of being able to use the iPad is that even if you are not very computer savvy, you can often use the iPad for trial presentation purposes without anyone assisting you. In addition, you should make sure you have a laptop with an extended battery life or purchase an extended battery for your laptop. In the case of an iPad, since the iPad 2 came out, the battery life is so improved that it will be rare for you to run out of battery life during the course of a trial day even if you never plug it in at all from the time court starts until the end of the day.

Apps for Trial with the iPad

For a presentation of most demonstrative evidence in court using an iPad, you will want to have either TrialPad or TrialDirector. He is the TrialPad screen:

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TrialDirector

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TrialPad and TrialDirector permit you to easily organize and display your documents and demonstrative evidence and label exhibits and print them when necessary. Yours truly has only used trialPad at trial. It has certainly been absolutely stable, never having crashed or presented any sort of glitch. The anecdotal information I received regarding users of TrialDirector is that it has had some glitches, which have caused it occasionally to crash at trial. It is unknown to the undersigned at the present time whether these glitches have been fixed.

Regardless of which app you use, you want to make sure that the documents/ exhibits are organized in some fashion that is totally familiar to you. If you have everything organized where you can find it, no different than if you have a bunch of documents in court sitting in archive boxes, it will make the use of the iPad for trial presentation look so easy and seamless that everyone will be impressed, particularly the jury and the court. It is also important to have everything that you may contemplate presenting in court already loaded onto the application before trial and premarked, which you can do from within the application, and it is useful to actually have a premarked set of exhibits and exhibit list to provide to the court clerk. TrialPad certainly makes this process relatively easy.

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DepoView is a great app for displaying videotaped deposition testimony in court. The video transcript can be sent to the text so that recall of specific excerpts of the video transcript can easily be pulled up in court, and you can create clips in advance to have them ready to be called up.

Keynote is Apple iPad version of PowerPoint and comes standard with the iPad and serves as a useful tool for opening and summation. As always, remember that you are required to provide your adversary with a printout of such items in advance of opening statement or summation. Failing to do so is irreversible error.

Timeline 3D is a timeline tool that allows you to present three-dimensional timelines, which are very useful in opening and summation for presenting a chronology of events to the jury. Timeline 3D easily allows you to add graphics to each point on the timeline so that the jury is not just looking at a bunch of text. It very much makes it easier for a jury to absorb a lengthy story of what happened in a particular case.

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Applications for Use on a Laptop

TrialDirector is the standard application for use in a laptop. It is very stable, but it is not easy to use and will certainly require someone else to operate the laptop while you do opening or the cross-examination or direct of a witness.

THE END

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POINT I

COUNSEL FOR PLAINTIFF PERMITTED TO USE DEMONSTRATIVE EVIDENCE AND VISUAL AIDS IN PLAINTIFF’S OPENING STATEMENT AND SUMMATION.

Plaintiff’s counsel not only seeks to rely upon medical illustrations, photographs,

timelines, Keynote (PowerPoint) presentation, and/or other demonstrative aids in

support of Plaintiff’s case in chief, but Plaintiff also seeks to rely upon same in counsel’s

opening statement and closing argument.

The use of demonstrative evidence in opening and closing violates no court rule

or case law. Cf. Cross v. Robert E. Lamb, 16 N.J. Super. 53 (App. Div. 1960) and

Renzo v. Jacobs, A-2890-96T5 (App. Div. 1997). This unpublished opinion is annexed

hereto as Exhibit 27. In fact, New Jersey courts have a long-standing tradition of

allowing attorneys to introduce demonstrative evidence in opening and closing when the

proffered demonstrative evidence aids the jury in understanding relevant aspects of

their case. Cross v. Robert E. Lamb, supra. (plaintiff’s use of blackboards and other

demonstrative aids to illustrate damages are permissible and are frequently used by trial

counsel). The Appellate Division specifically held that the law in the State of New

Jersey is that “anything which counsel has the right to argue or a legitimate

interpretation thereof, or an inference from the evidence, he is free within the discretion

and control of the trial judge to write down upon the blackboard, and conversely what

counsel may not argue, he may write on the board.” Cross, supra. at 56. As such, the

Appellate Division has held that the use of demonstrative evidence is generally

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accepted and the only limitation is the discretionary supervision of the Trial Court. Id. at

73.

In a later unpublished decision, the Appellate Division reaffirmed its holding that

demonstrative evidence is permissible during Plaintiff’s opening statement and closing

argument. See Renzo, A-2890-96T5 at 4 (App. Div. 1997) (Exh. 27). In Renzo, the

Appellate Division held that attorneys may use demonstrative evidence in opening

statements as long as the proffered evidence is relevant, pertains to the merits of the

case and is approved by the trial court judge. Id. at 4. Further, the Court reasoned that

the trial court should permit demonstrative evidence at trial as long as the proffered

evidence is not misleading, pertains to the subject matter testimony in the case and is

helpful in explaining the controversy to the jury. Id. at 4. For this reason, the Appellate

Division found no error in the trial judge's allowing defense counsel to rely upon x-rays

and visual aids during his opening statement.

Most recently, the Appellate Division in State v. Rivera, __ N.J. Super. ___, 2014

WL 5042454 (App. Div. 2014), held that a Powerpoint presentation used by the

prosecution was misconduct and unduly prejudicial to the defense. However, the

Appellate Division specifically held that what is important is the message or the content

contained with the Powerpoint presentation, not the medium:

Our courts have not yet addressed the use of PowerPoint presentations during opening statements or summations in criminal trials in a published opinion. Other courts have, however, considered the matter.

The Nevada Supreme Court has concluded that a PowerPoint, “as an advocate's tool, is not inherently good or bad” and that “its propriety depends on content and application.” Watters v. State, ––– Nev. ––––, 313 P.3d 243, 247 (2013). The Court further determined that a PowerPoint accompanying an opening is permissible if “the content is

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consistent with the scope and purpose of opening statements and does not put inadmissible evidence or improper argument before the jury.” Ibid.

We fully agree that the content, not the medium, is important. That view is consistent with the approach our Supreme Court has taken with respect to other technological advances used in connection with trial court proceedings. See, e.g., State v. Miller, 205 N.J. 109, 122, 13 A.3d 873 (2011) (directing that in “responding to a request to review testimony, the trial court's focus should be on the proper controls and limits needed to ensure a fair proceeding, not the medium used to create a record”).

Faced with a pre-presentation challenge to use of a PowerPoint in an opening, a court should apply the law governing opening statements. In some respects, use of PowerPoints has potential to advance the interests of fairness in opening statements because the court may direct removal of prejudicial material before a prosecutor displays a slide to the jury. That opportunity should not be lost.

Rivera, 2014 WL at 4-5. A copy of this opinion is annexed hereto as Exhibit 28. Thus,

Plaintiff’s counsel may use demonstrative evidence in his opening statement and

closing argument in this case, and the particular medium being employed is not what

matters rather than the content with the medium. The proffered demonstrative evidence

will be in the form of medical illustrations, blowups of certain medical records and other

documents produced during discovery, photographs, a timeline, a Keynote presentation,

which is PowerPoint for the iPad, a projector and projector screen, and/or other aids,

which will be helpful in explaining the matter to the jury. This will also include

illustrations of the Time Unit Rule pursuant to R. 1:7-1 for summation. Of course,

plaintiff’s counsel will provide copies of the demonstrative evidence intended to be used

in opening to his adversaries in advance. The demonstrative evidence that counsel for

plaintiff plans to perhaps use is annexed hereto as follows:

Exhibit 29: Anatomical Diagram of Decorticate Posturing;

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Exhibit 30: Anatomical diagram that depicts area of numbness from epidural

anesthesia for labor and delivery;

Exhibit 31: Comparisons of the two sets of Nurse Espiritu’s notes with

individual entries blown up in call-outs;

Exhibit 32: Photo of Narcan Vial;

Exhibit 33: Photo of Duramorph Vial;

Exhibit 34: Anatomical Diagram of Cardiovascular System;

Exhibit 35: Anatomical Diagram of Pathophysiology of Pulmonary Embolism;

Exhibit 36: Anatomical Diagram of Saddle PE;

Exhibit 37: Anatomical Diagram of Pulmonary Emboli;

Exhibit 38: Photo of Fentanyl Vials;

Exhibit 39: Photo of Pulse Oximeter;

Exhibit 40: Photo of Ambu Bag;

Exhibit 41: Anatomical Diagram of Endotracheal Intubation;

Exhibit 42: Photo of Epinephrine Vial;

Exhibit 43: Photo of Sodium Bicarbonate Vial;

Exhibit 44: Anatomical Diagram of Cesarean Delivery Cross-Section;

Exhibit 45: Anatomical Diagram of Brain Stem;

Exhibit 46: Anatomical Diagram of Placement of Epidural Needle.

Accordingly, as long as this Court does not find the proffered evidence

objectionable, there is no reason to bar the use of demonstrative evidence in counsel’s

opening statement or summation.

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"Does Meehan v. Antonellis, 226 N.J. 216 (2016), Finally Clarify the Affidavit of Merit Issue?"

Mary Ann C. O'Brien, Esq., LLM

Intro: Ted Talks = 18 minutes I. History leading up to Meehan v. Antonellis, 226 N.J. 216 (2016) II. Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) III. Questions remaining after Meehan. I. History leading up to Meehan v. Antonellis, 226 N.J. 216 (2016) A. Prior to the Affidavit of Merit Statute 1. Courts had a "fairly liberal approach" 2. Carbone v. Warbuton, 11 N.J. 418 (1953) "lack of specialty may disparage his qualifications but does not render him incompetent to state an opinion." 3. There was a "low threshold": Sanzari v. Rosenfeld, 34 N.J. 128 (1961) anesthesiologist testifying as to dental standards of care; Rosenberg by Rosenberg v. Cahill, 99 N.J. 318 (1985) medical doctor testifying as to standard of care for chiropractor. B. Affidavit of Merit Statute: NJSA 2A:53A-26 to -29. (Enacted 1995) 1. "Licensed Person" defined: NJSA 2A:53A-26 2. Affidavit required in certain actions against licensed persons: NJSA 2A:53A-27 [original, had no exception for "medical malpractice" actions] 3. Sworn statement in place of affidavit permitted: NJSA 2A:53A-28 For defendant's failure to provide records. C. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) - requires Affidavit of Merit Conference within 90 days of defendant's Answer.

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D. "Patients First Act" ("PFA"): NJSA 2A:53A-37 to -42 (Enacted 2004) 1. "Legislative Findings": NJSA 2A:53A-38 2. PFA Amended the AOM Statute: 3rd Sentence NJSA 2A:53A-27 3. "Section 41" - Patients First Act: NJSA 2A:53A-41 a) Expert Testimony - on appropriate standard of practice or care b) Criteria "Enhanced Requirements" - incorporates: American Board of American Specialties www.ABMS.org/…boards/specialty American Osteopathic Association www.osteopathic.org…/specialty-subs for Specialists who are Board Certified for Specialists who are not Board Certified for General Practitioners c) Waiver - 4. Affidavit of Non-Involvement: NJSA 2A:53A-40 5. NJSA 17:30D-22: Prohibits increase in premiums if dismissed within 180 days of Answer E. Buck v. Henry, 207 N.J. 377 (2011): Requires Defendant to indicate in his Answer the specialty in which he was involved when rendering treatment. F. R. 4:5-3: Requires Defendant to include specialty in Answer. II. Discussion of Supreme Court Opinion in Meehan v. Antonellis, 226 N.J. 216 (2016) A. Facts and Procedure: 1. Plaintiff Stephen Meehan consulted Defendant Peter Antonellis, DMD, an Orthodontist, seeking treatment for "sleep apnea". Dr. Antonellis fitted the patient with a device to reduce his symptoms. Patient noted that wearing the device at night caused his teeth to shift, and his symptoms worsened. Dr. Antonellis tried a new device, to no avail. Mr. Meehan filed a "dental malpractice" action against Dr. Antonellis for shifting his teeth and worsening his condition.

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Dr. Antonellis's Answer did not identify his specialty & whether his treatment involved that specialty. Plaintiff served an AOM from a dentist who specialized in Prosthodontics with 20 years experience of treating sleep apnea. The AOM opined the SOC deviated for "oral appliance therapy." Defendant filed a Motion to Dismiss, claiming the AOM must be from a "like- qualified" dentist/orthodontist as Section 27 requires AOM from like- qualified professional, who practices in the same specialty or subspecialty as the defendant - Here, an Orthodontist. 2. Defendant was a Board Certified Orthodontist. Defendant made a device to treat Plaintiff for "sleep apnea", which Orthodontists can do. 3. Plaintiff's Affiant was a Board Certified Prosthodontist, who specialized in treatment of "sleep apnea" for 20 years. 4. Trial Court dismissed Plaintiff's Complaint. App. Div. affirmed - Dental Malpractice is different than Medical Malpractice, but Section 41 requirements for Medical Malpractice applies to Section 27 AOM. Therefore, the AOM was insufficient. B. Issues for Supreme Court: 1. Do "enhanced requirements" (like-qualified) of Section 41 of PFA apply to "Dentists"? Answer: No. Section 41 PFA applies only to "Physicians" and only in "Medical Malpractice Actions". 2. If not, does AOM Section 27 require a like-qualified standard for affiants in "other negligence actions against licensed professionals, including Dentists? Answer: No. Section 27 only requires 1) an appropriate license; And 2) particular expertise in the general area or specialty involved in the action. There is no textual support for like-qualified requirements of Sec 41 C. Analysis: 1. How did Court find PFA Section 41 applies only to "Physicians" and only in "Medical Malpractice actions"? a) Intent of Legislation: i. Examination of text of AOM Statute and PFA w/ Section 27

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ii. 2004 added 3rd sentence to Section 27 and provides "in all other cases" iii. Section 41 a & b require affiant to be a licensed "physician" iv. The plain language of Section 41 states the like-qualified standards apply only to "physicians" v. Sect 41a incorporates "American Board of Medical Specialties" & "American Osteopathic Assoc" - which involve only "physicians" vi. Section 41b for "general practitioners" describes "physician's activities" b) Purpose of PFA & its Legislative History (due to ambiguity) i. Retirement and relocation of "physicians"- see Section 38. ii. Dramatic escalation of Medical Malpractice Liability Insurance Premiums causing shortage of qualified "physicians" iii. Problems identified & measures adopted - apply only to "physicians" 2. How did Court find Section 27 only requires 1) license & 2) expertise in area involved in the action? (which "expertise" can be evidenced by 1) Board Certification or 2) devotion to practice for at least 5 years.) a) New 3rd sentence applies to "physicians in medical malpractice" b) No "textual support" for Section 41 like-qualified requirements in other negligence actions, such as dentists. D. Holding: 1. "Enhanced requirements of PFA Section 41" for Affiant in AOM against physician in medical malpractice action apply only in medical malpractice actions. 2. "All other actions" against a licensed professional, including a Dentist, Section 27 of AOM Statute prescribes qualifications of Affiant. Like- credentialed standard governing "physicians in medical malpractice actions" do not apply.

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E. Summary: 1. Must look to see if the Defendant is 1) a Physician 2) in a Medical Malpractice action If so, "enhanced requirements" of Section 41 applies. 2. If 1) Defendant is not a Physician or 2) It is not a Medical Malpractice action then, Section 27 of AOM Statute governs the AOM requirements III. Questions remaining after Meehan: Does it finally clarify the AOM issue? 1. Meehan stands for the proposition that the like-credentialed requirements of Section 41 apply only if: 1) Defendant is a physician 2) in a Medical Malpractice action 2. So, do the "enhanced requirements" of Section 41 govern the qualifications of the Affiant if: 1. Defendant is a Podiatrist? (Look to list of Licensed Persons / not physician) 2. Defendant is a Chiropractor? " 3. Defendant is a Nurse? " 3. Defendant is a Health Care Facility? " 4. Defendant is a Physical Therapist? " 5. Defendant is a Pharmacist? " 6. Defendant is a Veternarian? " 7. Defendant is an Optometrist? Not listed in "Licensed Persons" Not listed in ABMS or AOA Does not go to Medical School Question becomes: What's a Physician? (Wikipedia: Role & meaning vary around the world.) One can Google: "Is a _________ considered a Physician?" If listed within ABMS or AOA = Safe! If not, arguments can be made, but would be extremely tough.

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3. If Defendant wants to ensure that the "enhanced requirements of PFA Section 41" are fully applied, he should be extremely careful and specific in his or her Answer -

"Defendant is a Physician. At the time of the alleged claim, Defendant specialized, and was practicing1, in the field of (name specialty and/or subspecialty as listed in ABMS or AOA) and [if applicable] was Board Certified in that specialty and/or subspecialty. His or her treatment of plaintiff involved that specialty and/or subspecialty."

4. Plaintiffs should look to Defendant's Answer to be guided as to the type of Affiant that should not be contested. 5. www.NJdoctorlist.com - can research physician's specialties and provides the State of NJ recognizes the specialty boards that are members of ABMS, AOA, RCPSC (Royal College of Physicians & Surgeons of Canada) or CFPC (College of Family Physicians Canada) 6. PFA Section 41's "enhanced requirements" do not apply to: a) medical practitioners other than physicians b) experts who are called to testify about proximate cause c) experts testifying about damages

1 See Nicholas v. Mynster, 213 N.J. 463 (2013) (Expert must have the same type of practice and possess the same credentials as defendant. Expert must practice in the same specialty as defendant.)

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Handout created with assistance of:

Jessica L. Rodio, Esq. Weiss & Paarz, PC

Jrodio@weisspaarz..com

New Jersey Charitable Immunity: The Basics

The New Jersey Charitable Immunity Act (“NJCIA”), N.J.S.A. 2A:53A-7, provides nonprofit entities

organized exclusively for charitable purposes with absolute immunity. It also provides nonprofit entities

organized exclusively for hospital purposes the protection of a $250,000 damages cap. N.J.S.A. 2A:53A-8.

When either of these defenses are raised, the question is whether the entity was organized “exclusively” for

charitable or hospital purposes. The New Jersey Supreme Court has recently stated that “exclusive,” within

the meaning of the NJCIA, means “sole” or “single” purpose. Kuchera v. Jersey Shore Family Health, 221

N.J. 239 (2015).

In New Jersey, charitable immunity is an affirmative defense, and the defendant bears the burden

of persuasion. Abdallah v. Occupational Center of Hudson County, Inc., 251 N.J. Super. 280 (2002). In order

to be entitled to absolute immunity as a private, nonprofit charity, a defendant must prove that it is (1) a

nonprofit entity (2) organized exclusively for charitable purposes, and that (3) plaintiff was a beneficiary of