67 posts categorized "Medical Liability"

Friday, March 21, 2014

NJCJI Files Brief in Malpractice Insurance Case

The New Jersey Civil Justice Institute has filed a motion to participate as amicus curiae in DeMarco v. Stoddard. The issue in the case is whether the rule for third party recovery that applies in the automobile context should be extended to medical malpractice absent statutory foundation, thereby requiring a malpractice insurer to underwrite a claim against a doctor who lied in order to get insurance coverage.

Continue reading "NJCJI Files Brief in Malpractice Insurance Case " »

Thursday, February 13, 2014

Pharmaceutical Litigation Makes Headlines

While only earning a spot on the Judicial Hellholes “watch list” last year, a look at this week’s top news stories suggests New Jersey may be back on the full-on Hellhole list next year thanks to the horde of pharmaceutical lawsuits currently playing out in the state.

Continue reading "Pharmaceutical Litigation Makes Headlines" »

Thursday, February 21, 2013

Bill granting civil immunity to ambulatory, rescue, and first aid squads advances

S-2165 received the unanimous approval of the Senate Law and Public Safety Committee.  Under current law, only the officers and members of first aid, ambulance or rescue squads have civil immunity; not the entities themselves.  This bill clarifies that the entities, as well as the officers and members are not liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith. Its companion bill, A-3282, passed the Assembly Health and Senior Services committee with bipartisan support in January. 

S-2165 is sponsored by Senator Kip Bateman (R-Somerset).  Its assembly sponsors include Assemblymen Eric Peterson (R-Hunterdon), Anthony Bucco (R-Morris), and Herb Conaway (D-Burlington).  The measure awaits full legislative approval in each house. 

Thursday, February 07, 2013

A-1831 unanimously clears Assembly Health Panel

In our ongoing quest to keep good doctors practicing in New Jersey, NJLRA supported A-1831 before the Assembly Health and Senior Services Committee, which advanced it with bipartisan support.

If enacted, A-1831 would help lower liability insurance premiums, which is frequently cited as a key reason for New Jersey’s so-called medical brain drain.  Insurance premiums begin to increase the moment a lawsuit is filed.  This bill would prevent insurance carriers from raising liability premiums based on a claim of medical practice, unless the physician is found liable in court.  It would also prohibit insurers from increasing liability premiums in certain charitable or emergency situations. 

A-1831 is an important first step to help reverse the public crisis of doctors fleeing our state, which is expected to worsen significantly in the next few years.  

Practicing specialized medicine in New Jersey is comparatively difficult for recent medical school graduates.  In addition to their student loans, new doctors must bear New Jersey’s high cost of liability insurance premiums.  Specialties which carry some of the highest premiums, including obstetrics and gynecology, disproportionately impact New Jersey women.  It is no longer cost effective for many existing OBGYNs in New Jersey to deliver babies, and many have stopped doing so altogether. 

We thank the committee and Chairman Conaway for their advancement of this measure. 

Tuesday, February 05, 2013

Assembly Health Committee to hear medical liability reform measure

The Assembly Health and Senior Services Committee is scheduled to hear A-1831 on Thursday, marking an important step toward addressing deep concerns about the cost of liability insurance within the medical community.   

Sponsored by Chairman Herb Conaway (D-Burlington), A-1831 would prevent insurance carriers from raising liability premiums based on a claim of medical practice, unless the physician is found liable in court, and would prohibit insurers from increasing liability premiums in certain charitable or emergency situations. 

This legislation would also provide civil immunity to healthcare professionals who volunteer their services in good faith.  Civil immunity would be available to volunteer healthcare professionals who do not have an active provider-patient at the time of the emergency.  As our population outpaces the number of physicians we need to adequately care for the health of New Jersey residents, volunteer healthcare professionals will become increasingly important.  By offering civil immunity to these volunteer medical personnel, A-1831 takes a step toward addressing our New Jersey’s public health needs. 

Practicing specialized medicine in New Jersey is comparatively difficult for recent medical school graduates.  In addition to their student loans, new doctors must bear New Jersey’s high cost of liability insurance premiums.  Specialties which carry some of the highest premiums, including obstetrics and gynecology, disproportionately impact New Jersey women.  It is no longer cost effective for many existing OBGYNs in New Jersey to deliver babies, and many have stopped doing so altogether.  It’s not just a matter of addressing a significant healthcare cost-driver; it’s also about ensuring that New Jersey residents – especially women – have access to medical care.   

The hearing will take place at 10 a.m. in committee room 16.

Wednesday, November 28, 2012

When a child drinks cologne, by all means, sue the doctor...

It’s a story that’s easy to miss in the post-Sandy, post-Election Day, “fiscal cliff” news cycle, but one that will stick with you for a while after learning about it. 

A New Jersey appeals court has determined that an emergency room doctor must stand trial for failing to report to the Division of Youth and Family Services that he treated a child who ingested cologne. 

The 3-year-old patient, identified in court papers as “S.A.,” was abandoned by her mother soon after birth in 1998.  The Division (DYFS) placed her in the care of her father two years later.  She was brought to Jersey Shore University Medical Center in Neptune in early 2001 by other relatives, who said that she was “walking with an unsteady gait and was observed as lethargic and weak with an unusual odor on her breath.”

From a layman’s standpoint, it appears that the emergency room doctor, Daniel Yu, performed a thorough examination, leading him to conclude (correctly) that the young child ingested cologne.  She was treated and her extended family was on its way. 

Two months after the cologne incident, DYFS received a disturbing report: S.A., still under her father’s care, had been severely burned and beaten.  She had chemical burns on various parts of her body, including her vagina.  At this point S.A. was removed from her father’s custody by the Division.  She was later adopted by the plaintiff in this case, L.A. v. DYFS, A-2726-11, who is identified as L.A. in court papers. 


And in 2007, L.A. filed suit – not just against the Division, which evidently had some history with the child’s family – but against Dr. Yu and Jersey Shore University Medical Center.  DYFS settled with L.A. for $5 million.  No suit was filed against the child’s abuser.  

N.J.S.A. 9:6-8.10 requires anyone who believes a child is being abused or neglected to contact DYFS.  Mercer County Superior Court Judge Paul Innes didn’t believe that a toddler ingesting a foreign substance was indicative of abuse.  It’s the sort of thing that happens in the happiest of homes from time to time, to the tune of at least 100,000 childhood emergency room visits each year.  The appellate court, however, disagreed with his assessment, and the case will be going forward. 

The medical community fears that if Dr. Yu and the hospital are found liable, doctors and hospital staff will be pressured to report abuse for tiniest of infractions, overwhelming a DYFS system that is already overwhelmed and creating an adverse affect on children’s health and well-being.  The threat of DYFS involvement may discourage parents from seeking immediate care when children swallow things they shouldn’t, mask their child’s symptoms, or even deter them from bringing their child to the emergency room altogether in order to avoid the legal scrutiny and uncertainty to follow. 

The need to reform our legal system isn’t just about the taxes we pay or improving New Jersey’s economy.  It’s also about injecting common sense into real-life situations we all face. 

So, should the doctor and hospital be found liable of malpractice for not reporting that a toddler drank cologne to DYFS, you may want to prepare yourself for a barrage of questions the next time you take your kid to the E.R. for sticking a LEGO in his ear.     

Wednesday, October 03, 2012

ICYMI: Read NJLRA’s Letter-to-the-Editor in the Asbury Park Press

Reforms to liability laws might keep doctors in N.J.

Friday, September 21, 2012

NJ is Treacherous Ground for Physicians: A Panel Discussion

Ten years ago the Medical Society of New Jersey (MSNJ) worked hard to enact meaningful medical liability reform in New Jersey.  Since then, court decisions have gutted key statutes and insurance premiums have skyrocketed.  We are now on the brink of a severe doctor shortage as other states enact liability reform and attract new physicians. 

MSNJ will be hosting a panel discussion on Thursday, September 27th with leading legislative and legal experts to discuss what can be done to combat the unique issues facing New Jersey’s doctors and their impact on public health. 

To register for this free event, please click here to visit the Medical Society’s website

Tuesday, August 14, 2012

Protecting volunteers may expand healthcare in Trenton, NJ

As our nation continues to debate health insurance mandates and cost-drivers that left preventative medicine out of reach for many, volunteer doctors quietly set up shop in some of New Jersey’s most underserved communities, trying to alleviate public health burdens on a patient-by-patient basis. 

Trenton is one of these communities.  In a Trenton Times report earlier this week, City Health Officer James Brownlee explained that years of funding cuts forced its clinics to greatly reduce the services they could offer. 

But there may be light at the end of the tunnel.  And that light is federal “free clinic” status.

According to the Times, such a designation would provide “essential malpractice insurance for a new staff of volunteer doctors, nurses, and other professionals who have retired from local hospitals,” bringing with it an opportunity for clinics to begin expanding their outreach once again.   

Medical liability insurance is routinely cited by New Jersey’s medical community as a disincentive for doctors to practice in the Garden State.  Such premiums, particularly for OB-GYNs, are significantly higher than premiums in other states. 

New Jersey faces a doctor shortage by the end of the decade if we simply do nothing.  Physicians who volunteer a portion of their retirement to continue treating patients help close a gap that we have yet to fill – a gap that will only increase as the number of physicians per capita decreases. 

Some aren’t convinced that assuaging doctors’ concerns about medical liability insurance increases access to care.  But in some of Trenton’s most underserved neighborhoods, it’s clear that it may make a world of difference.    

Assemblyman Herb Conaway is the sponsor of A-2178, which would provide civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers.  It was second-referenced to the Assembly Judiciary Committee after passing favorably from the Health and Senior Services Committee in May.  Chairman Peter Barnes has not indicated whether he will post it for a vote. 

The bill’s Senate counterpart, S-1165, has the bipartisan support of Senators Loretta Weinberg (D-Bergen) and Diane Allen (R-Burlington). 

Monday, August 13, 2012

Christie, Romney, and Legal Reform

Paul Ryan is Mitt Romney’s vice-presidential pick.  This means Governor Christie officially belongs to New Jersey for at least another 16 months. 

With movement on pension and education reform, legal reform and medical liability reform may rise on the Governor’s agenda.  The need for legal reform has grown more apparent in recent months as studies confirmed that New Jersey will face a shortage of physicians by the end of the decade.  The State Senate unanimously passed legislation authorizing DHSS to convene a summit to analyze the shortage’s implications for New Jersey residents; its Assembly counterpart, A-1828, awaits action by the Assembly Health and Senior Services Committee. 

Wednesday, June 27, 2012

How will SCOTUS Obamacare decision affect NJ? Read NJCJI’s op-ed in the Star-Ledger to find out


Later this week, the U.S. Supreme Court is expected to decide the constitutionality of the Affordable Care Act, more commonly known as “Obamacare.” The law’s constitutionality has sparked discussions and debate over the past three years as we vet the best way to keep ourselves healthy. But irrespective of your position on the mandates and regulations that comprise it, New Jersey has a health care crisis all its own — one that has the potential to affect how its residents access specialized medical care in the very near future, and one that the court’s decision isn’t likely to affect.

New Jersey’s crisis is a shortage of doctors. And the hemorrhaging will affect us all.

Ask around and you’re likely to hear frustration about the amount of time it takes to schedule a visit with an OB-GYN. Unfortunately, that is becoming the norm. The New Jersey Council of Teaching Hospitals reports that there is already a 12 percent gap between physician supply and demand. New Jersey’s medical schools graduated 860 newly minted physicians in 2009; only 370 stayed in the state. By 2020, New Jersey is expected to be short an additional 3,000 physicians needed to care for its population.

And these shortages are most profound in obstetrics, cardiovascular specialties and family medicine. In short, women will bear the brunt.


Thursday, May 10, 2012

Update: Conaway/Weinberg bill to protect certain volunteer physicians, nonprofit clinics, and FQHCs advances from Assembly Health Committee

A-2178 was unanimously supported by the committee’s democrats.  Using the hypothetical example of a doctor’s spouse who may create a nonprofit organization and employ said doctor as a volunteer, Assemblyman Erik Peterson expressed concern that there may be an opportunity for some to take advantage of the law.  He abstained awaiting clarification.  Assemblyman David Rible voted against it. 

Wednesday, May 02, 2012

New Jersey's doctors are on treacherous ground

New Jersey is treacherous ground for physicians. 

Few people deny that the earth is getting warmer.  And few people deny that New Jersey’s exodus of doctors (the so-called “Medical Brain-Drain”) will affect New Jerseyans’ access to healthcare. 

There are likely many reasons behind this phenomenon, as the Department of Health and Senior Services Summit (S173), if enacted, hopes to uncover.  High cost of living and a lack of tax incentives are frequently cited, as are the costs of liability of insurance (click here for one New Jersey’s medical student’s story). 

And with respect to the number of claims filed against physicians each year, New Jersey is an outlier among states. 

Comparing New Jersey to Ohio, for instance, is revealing: despite having a population which exceeds New Jersey’s by two and a half million, the Garden state had 630 medical liability claims in 2011 to Ohio’s 287.   New Jersey even managed to surpass Texas, which has nearly three times the number of residents, in the number of medical liability claims last year (Texas had 550 claims in 2011, in case you were wondering). 

“A physician shortage crisis is right around the corner in New Jersey if we do not take immediate steps to change course,” J. Richard Goldstein, president and CEO of the New Jersey Council of Teaching Hospitals, said in a 2010 news release. “National health reform, while laudable and needed, will only work to accelerate the time when there simply will not be enough doctors to serve New Jersey’s adults and children.”

Should meaningful medical liability reforms continue to stagnate, despite Dr. Goldstein’s warnings, New Jersey will continue to educate other states’ physicians, at the cost access to care for New Jersey’s residents. 

Monday, February 13, 2012

NJLRA Applauds Passage of Bill Requiring Study of NJ’s Looming Physician Shortage

The State Senate unanimously passed S-173, sponsored by Senator Robert Singer, which would require the Department of Health and Senior Services (DHSS) to conduct a study of New Jersey’s looming doctor shortage. 

“The New Jersey Council of Teaching Hospitals warned us in 2010 that New Jersey will be short nearly 3,000 doctors by 2022 if preventative measures are not taken,” said Marcus Rayner, executive director of the Alliance. “This is on top of the current 12% gap between physician supply and demand.

“It’s encouraging that the Legislature is taking this issue seriously and trying to avert a crisis situation.

“New Jersey’s doctors, especially those in high-risk specialties, carry some of the highest liability insurance premiums in the country.  It is becoming harder for the average physician to undertake the expense of practicing in New Jersey when so many other states have enacted cost-saving liability reform during the past several years.

If enacted, S-173 would convene a strategic planning summit of stakeholders.   The Department would be required to report findings and recommendations to the Governor and Legislature six months after enactment. 

The legislation was approved by a vote of 40 – 0.  It awaits action by the General Assembly. 

Friday, February 03, 2012

New this week…

Assemblyman Herb Conaway, chair of the Assembly Health and Senior Services Committee, reintroduced legislation granting civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers. 

A volunteer physician is defined in this bill, A-2178, as a physician who is retired but maintains licensed and is not receiving compensation for patient care. 

New Jersey is projected to be short by nearly 3,000 physicians by the end of the decade.  Medical specialties, including OB-GYNs, are expected to be among the hardest hit.  By protecting volunteer physicians, nonprofit clinics, and federally qualified health centers – acting in good faith – from liability, A-2178 would remove a significant disincentive to practice in areas in which there is high demand for such services. 

Assemblyman Conaway is also the sponsor of A-1806, which would accomplish similar objectives and reverse the 2010 New Jersey Supreme Court decision in Ryan v. Renny.  The decision gutted the state’s affidavit of merit statute

Wednesday, August 24, 2011

Tort Reform in New Jersey, Round 1 (2002 – 2003)

We get a lot of questions about tort reform efforts pre-NJLRA, particularly with respect to medical malpractice reform.  Here is a roundup of what occurred in New Jersey, 2002-2003.  Note: Since this effort predates NJLRA’s founding, please chime in with anything else that should be included. 

  • Omnibus legislation was introduced in December 2002 with the sponsorship of then-Assembly Majority Leader Joe Roberts.  The legislation, A50, was intended to address escalating medical malpractice insurance premiums and concerns over a consequential shortage of doctors in New Jersey.  Liability insurance for New Jersey’s hospitals had increased an average of 50 percent in just the previous year.  Dubbed the “Patients First Act,” A50 called for a $300,000 cap on non-economic damages for physicians, nurses, and other healthcare professionals, while allowing plaintiffs to collect up to $1 million in “pain and suffering” from a special state fund; tightening the statute of limitations during which an individual could file a malpractice claim; create discoverability protections and medical error reporting to help healthcare providers improve patient safety; provide a “good Samaritan clause” for physicians providing emergency care on a volunteer basis. 
  • December 12, 2002: A50 clears Assembly Health and Human Services Committee; Assembly Banking and Insurance Committee, and Assembly Appropriations Committee before being passed by the full Assembly, 44-20-12.  The $300,000 cap on non-economic damages for physicians, nurses, and other healthcare professionals is removed.
  • January 2003: Unhappy with the removal of the $300,000 cap, physician groups organize a three-day “work stoppage,” despite pleas from legislative sponsors for restraint.
  • March 2003: The Senate removes the $300,000 non-economic cap provision from its companion bill, S2174, before releasing it from the Health, Human Services, and Senior Citizens Committee with additional amendments.  It is passed by the full Senate, 32-5.
  • April 2003: Doctors’ associations threaten a second work-stoppage if the cap is not reinstated.
  • June 30, 2003: With heavy lobbying by the Trial Lawyers Association (now called the “American Association for Justice”) and waning physician sympathy, A50/S2174 dies on concurrence in the Assembly. 

Friday, July 15, 2011

Session Recap

It’s been a quiet week for civil justice reform.  Unsurprising, since failed attempts to override some of the Governor’s vetoes, school funding, and speculation over which congressional district will be eliminated during redistricting have dominated New Jersey politics.

 To recap the 2010-2011 Session thus far, NJLRA supports the following bills:


Thursday, June 16, 2011

The Big Apple Needs Big Reform

A lot of tort reform –inspiring activity has been taking place across in New York these days. 

First, there is judge-directed negotiation, an approach to resolving medical malpractice cases without the years of traditional legal overhead.  As part of President Obama’s pledge to address skyrocketing medical malpractice litigation costs, New York City received a federal grant for a type of mediation between a trained judge and attorneys for each side.  Its intent is to get judges involved earlier and actively encourage settlements, which prompts quicker resolution and fewer years in an expensive limbo for the parties involved.  There are no appeals, and the settlements are often a shadow of what a plaintiff might receive in court.  A positive consequence is that lawyers may become more hesitant to pursue a case that is marginal.  A negative consequence, however, is that doctors may still feel pressured to settle, even when they haven’t been negligent. 

Next, the New York State Assembly passed A-694, a complex piece of legislation supported by trial lawyers.  It seeks to overturn the New York Court of Appeals’ decision in the case of Arons v. Jutkowitz. If enacted, opponents say, the cost of medical malpractice insurance will likely increase for New York’s physicians.   More information about the legislation can be found here

The last is sobering.  New York City doled out an astounding $521 million in personal injury and property damage lawsuits in 2010.  It’s sort of like a $57.88 lawsuit insurance policy for each of the city’s 9 million residents.  And this figure is seven percent lower than it was in 2009!

Monday, May 23, 2011

Tort reform and healthcare costs....

The cost of healthcare is a hot topic in New Jersey.  States that enacted non-economic malpractice caps saw a 3 – 4 percent decrease in healthcare costs over the last few years, according to the Agency for Healthcare Quality and Research

Why does tort reform reduce the cost of healthcare?  For starters, it lessens the needs for defensive medicine.  Unnecessary tests can be both costly and time-consuming, and the patient isn’t any healthier for it. 

With a looming physician shortage, perhaps it’s time for New Jersey to take a look at these cost-cutting measures.  A poll conducted by the American College of Emergency Physicians (ACEP) recently found that more than half of emergency room doctors cite their fear of being sued as the primary reason for ordering unnecessary tests in the ER.  Emergency room doctors may be particularly vulnerable to lawsuits, because patients are generally sicker and they often don’t have access to patients’ medical histories. 

Post-reform, Texas emergency rooms have undergone the second biggest improvement in wait times in the nation.  And that’s not it for the Lone Star State.  Texans -who faced a physician shortage not unlike the one New Jersey will likely face- have added at least one emergency room physician in 33 rural counties, 24 of which previously had none. 

That’s not just stopping the hemorrhaging: it’s a reversal.  One that New Jersey patients could benefit from, too – expanding access to care is a welcome consequence of enacting tort reform. 

Thursday, May 19, 2011

The Next Public Health Crisis? Obese patients too high-risk

Obese women aren’t always treated kindly by society.  And now, some OB-GYNs in Florida say they simply can’t risk treating them – at all. 

"People don't realize the risk we're taking by taking care of these patients," said Dr. Albert Triana.  "There's more risk of something going wrong and more risk of getting sued."

The Sun-Sentinel polled 105 OB-GYNs in South Florida.  Fifteen of them said they refuse otherwise healthy new patients over 200 pounds. 

Doctors can decline patients for any reason.  But when fourteen percent of OB-GYNs won’t see obese patients because the financial risk is too high, we could be seeing the dawn of a disturbing public health trend. 

According to the Los Angeles Times, which also reported on the study, South Florida OB-GYNs have “long complained of high numbers of lawsuits after difficult births and high rates for medical malpractice insurance.”  Obese women who were pregnant were somewhat routinely referred to specialists, but turning down obese women who are not pregnant is new.  According to doctors interviewed, obese patients present an increased risk of complications – and are increasingly seen as potential lawsuit. 

We have enough barriers between women and gynecological and prenatal care in the United States.  It would be great if the trial lawyers, with their self-proclaimed concern for the average person, would stop adding to these barriers and support medical malpractice reform instead. 

Tuesday, April 19, 2011

Budget break. What’s a New Jersey Tort Reformer to do?

One of the most appealing aspects about tort reform is that it has the power to spur economic growth while being budget-neutral. 

That said, the legislative “budget break” – which is the period between the end of March and June when the Legislature is in recess while the Assembly and Senate Budget Committees meet to finalize the next fiscal year’s budget – can seemingly push tort reform to the back burner. 

Fortunately, there are some things tort reformers can do:

Take a look at your municipal budget.  How much money is your town or city spending on litigation costs?  It’s probably much higher than you think.  Could some endangered local government service be spared if its litigation tab weren’t so high?   Perhaps it’s worth mentioning at your next town council meeting, especially if a lot of cases are referred to expensive private firms.  You’ll be happy you spoke up when your next property tax bill is due. 

Review tort reform measures that were recently introduced.  Senators Jennifer Beck (R-Monmouth) and Loretta Weinberg (D-Bergen) recently introduced S-2800, which adds an additional protection for doctors to two of the proposals in S-760/A-1982.  The new bill addresses protecting a doctor from having his or her name linked to a malpractice suit prematurely.  It also provides protections for volunteer physicians acting and good faith and prevents doctors’ insurance premiums from automatically increasing when a lawsuit is filed.

Assemblyman John Burzichelli (D-Gloucester) also introduced several bills in late 2010 which would protect local governments from liability in certain instances where whether is to blame.  The bills were endorsed by the New Jersey League of Municipalities, which you can read about here

See where redistricting has left you.  Are you in a new legislative district?  Use this as an opportunity to educate your new legislators on the importance of a business-friendly climate in New Jersey.  Unless they live under a rock, they’ve heard this before.  But they might not have thought about tort reform as a means to achieving economic growth.  You can check the new legislative map here to see if your municipality has been moved to a different district.

In sum, the budget break is a great time for tort reformers to connect the dots between economic growth in Trenton and municipal and family budgets at home.  It’s a great way to keep up the momentum and learn more about your community at the same time. 

Monday, April 11, 2011

Senator Allen on medical malpractice reform, and other women’s issues

Allen The trials and tribulations Senator Diane Allen (R-Burlington) faced in New Jersey politics were front and center over the weekend in a Star-Ledger piece by Linda Ocasio. 

A cosponsor of S-760/A-1982, which would enact many of the medical malpractice reform measures NJLRA supports, Senator Allen offers her perspective as to why it hasn’t been acted upon:

“If we had more women of either party, we’d get a lot of these things through,” Senator Allen said. 

An extensive hearing of the bipartisan, bi-cameral Women’s Legislative Caucus last year underscored the declining number of OB/GYNs and subsequent impact on women’s access to care.  After months of languish, the Assembly version of the bill passed favorably from the Assembly Health and Senior Services Committee, but was later second-referenced to the Assembly Judiciary Committee. 

You can read the full Star-Ledger piece here

Monday, March 07, 2011

A-1982 released by Assembly Health Committee!

Assembly bill A-1982, sponsored by Assemblyman Herb Conaway, was voted out of the Assembly Health and Senior Services Committee today, 8 votes in the affirmative and two abstentions. 

A-1982 takes steps to rectify the New Jersey Supreme Court’s 2010 decision in Ryan v. Renny, which gutted the affidavit of merit statute.  It also protects volunteer physicians from medical malpractice liability and prevents insurance companies from immediately imposing an increase on doctors who are named in a malpractice suit. 

Several committee members, including Assemblywomen Celeste Riley and Elease Evans, spoke of the impact New Jersey’s doctor crisis will have on women’s access to healthcare.  New Jersey already has a 12% gap between the number of New Jersey’s patients and doctors available to treat them.  This number is expected to widen by another 3,000 doctors by the end of the decade if changes are not made, and higher-risk specialties like obstetrics will be hit hardest. 

Assemblywoman Nancy Munoz, who voiced language concerns in a previous hearing, and Assemblyman Jerry Green were the lone abstentions. 

Wednesday, March 02, 2011

New York’s Medicaid Redesign Task Force recommends a cap on noneconomic damages; the trial lawyers hate it

Nearly every state in the country is grappling with rising Medicaid costs.  New York, however, bears the distinction of having the highest Medicaid costs in the nation, and also leads among avoidable hospital use and costs.  On a per capita basis, it runs about twice the cost of the national average. 

To help his “functionally  bankrupt” state cleanse its Medicaid program of inefficiencies and waste, Governor Andrew Cuomo convened a Medicaid Redesign task force to “redesign and restructure” the program. 

The task force consisted of 30 stakeholders – doctors, hospitals, nursing homes, the Greater New York Hospital Association, and other patient care providers you would expect.  The objective, according to the Syracuse Post-Standard, is to move nearly all of the state’s 4.7 million Medicaid recipients to managed care within the next three years in order to stop the use of hospital emergency rooms for preventative and routine care.  Its expected savings could exceed $1.1 billion.  The task force issued 79 recommendations last Thursday for the approval of the Governor and Legislature.  And they include a $250,000 cap on noneconomic damages – which would save hospitals hundreds of millions of dollars in insurance premiums alone. 

Now enter the trial lawyers.  They’re throwing a fit over aforementioned recommendation.  Not because it saves taxpayers’ money, but because their interests weren’t represented on the task force.  New York Times blogger Nicholas Confessore has noted their frustrations in detail. 

New York State faces a $10 billion deficit, and Governor Cuomo has said he needs to cut Medicaid spending by $2.85 billion and limit it to 4 percent annual increases thereafter if he has any chance of plugging it.  Josh Vlasto, a spokesperson for Governor Cuomo, called the interest group opposing this recommendation a “mouthpiece for the trial lawyers.” 

I suppose the task force could have recommended cuts in patient spending instead of a cap on litigation and insurance spending.  As a patient, however, wouldn’t you rather have a $250,000 cap on noneconomic damages instead of a reduction in care?  It seems nonsensical and transparent for trial lawyers to insist that the only way Medicaid recipients can receive more efficient care is to make sure the lawyers’ thirst for uncapped noneconomic medical damages remains quenched.   

Thursday, February 24, 2011

What do North Carolina, Oklahoma, and North Dakota have in common?

Tort reformers in all three states had significant victories this week.

In North Carolina, S-33 would cap noneconomic awards in malpractice cases at $100,000.  It was advancing to the full Senate for a vote as of Thursday. 

A similar piece of legislation passed the full Senate in Oklahoma.  S-863 would cap noneconomic damages at $250,000

Meanwhile, in North Dakota, progress was made in the judicial branch.  A group of thirteen out-of-state plaintiffs had filed a product liability suit in North Dakota, which has one of the longest statutes of limitation in the country.  The state Supreme Court ruled in favor of the defendant in Vicknair v. Phelps Dodge.  Several groups, including NFIB and the U.S. Chamber of Commerce, argued that the statute of limitations from the plaintiffs’ home states should be applied, not the more plaintiff-friendly statute of limitations in North Dakota. 

Monday, January 31, 2011

Good reading: Tort reformers have momentum in NJ

Sherman “Tiger” Joyce, president of the American Tort Reform Association (ATRA), had the following to say about New Jersey’s prospects for civil justice reform in The Metropolitan Corporate Council publication:

“Of course, the litigation industry also remains strong throughout New Jersey, home to once-and-future judicial hellholes, and ATRA expects it to again push an expansion of wrongful death liability while actively opposing consumer fraud reform. But tort reformers, backed by Governor Chris Christie, have some momentum. They support three affirmative reform bills already filed during the current legislative session. One seeks to limit appeal bonds to the total value of the monetary judgment or $50 million, whichever is less. Another would revise the individual's cause of action under the Consumer Fraud Act and make other revisions regarding applicability (see trial lawyers' opposition noted earlier). The third pertains to liability, standards of care and insurance coverage for medical malpractice actions.”

Wednesday, January 26, 2011

President Obama: I’m willing to look at medical malpractice reform to rein in frivolous lawsuits

President Obama’s State of the Union address touched on two areas of interest to NJLRA supporters: medical malpractice reform and a flaw in the healthcare reform bill which requires all businesses to track expenditures to all vendors

Frivolous medical malpractice lawsuits affect the ever-increasing insurance premiums each doctor must carry, and these costs can vary significantly by specialty and by state.  In New Jersey, the medical malpractice crisis has lead to a homegrown healthcare crisis of our own, in which we are seeing fewer doctors willing to practice specialized medicine within the jurisdictions of the Garden State. 

Beginning January 1, 2012, all businesses would need to track expenditures over $600 with other vendors, and prepare a Form 1099.  This requires tracking down the taxpayer ID for each vendor as well.  This would be an especially difficult for small businesses, which lack the accounting resources of larger companies.  Fortunately, President Obama acknowledged the onerous burden this portion of the healthcare bill would place on economic growth. 

Excerpts from the President’s speech regarding medical malpractice and small business bookkeeping under the new healthcare law are quoted below:

Medical malpractice

“This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit. Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.

Small business bookkeeping under the new healthcare law

“Now, I've heard rumors that a few of you have some concerns about the new health care law. So let me be the first to say that anything can be improved. If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you. We can start right now by correcting a flaw in the legislation that has placed an unnecessary bookkeeping burden on small businesses.

You can read the entire speech here, via ABC’s website

Friday, January 21, 2011

You can’t make this stuff up: Do not drive or operate machinery [or polish guns]

A New Jersey man who saw his doctor about depression and insomnia began taking Zoloft and Ambien.  He then decided to polish his .38 caliber Colt revolver. 

The rest almost seems incredulous.    Robert Buck reportedly fell asleep while ‘inspecting’ his gun.  It lay in his right hand until he thought he heard the phone ring, and reached over with his left hand to get it.  The gun went off, and Buck took a bullet to his mouth.  He ended up with multiple skull fractures and blindness in his left eye. 

Robert Buck is now suing his doctor for medical malpractice, saying that prescribing both an anti-depressant and a sleep aid together deviated from accepted standards of medical care.  He has a separate product liability claim pending against the drug manufacturers. 

The issue now before the New Jersey Supreme Court is who may be considered an expert under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-41.  Buck’s doctor specialized in family medicine but is board certified in emergency medicine.  His attorney obtained an affidavit from an expert who was board certified in emergency medicine, and also obtained an affidavit of merit from a psychiatrist.  Ocean County Superior Court Judge Steven Nemeth dismissed the suit because the attorney did not obtain an affidavit from a family-medicine practitioner, according to the New Jersey Law Journal.  An appellate court agreed.  

For its part, I’m told that the Ambien’s current labeling reads: “Warning: May Cause Drowsiness.”  Several internet searches reveal that it also cautions patients not to do “anything that requires you to be alert or awake.”  It also says not to “drive, operate machinery, or perform other hazardous activities after taking Ambien.” 

Wednesday, December 29, 2010

2010 in Review

            I am happy to report that the 214th NJ legislature has taken positive first steps toward reforming New Jersey's civil justice climate.  Most notably, A-2473/S-480, which extends appeal bond caps to all industries, is now on second reading in the General Assembly.  We also saw efforts to reform New Jersey's oft-abused Consumer Fraud Act with the introduction of A-3333.  Finally, the Assembly Health and Senior Services Committee held a hearing earlier this year on A-1982, which would reform New Jersey's medical malpractice environment for our state's doctors.    Collectively, these initiatives would discourage frivolous class-action litigation and enhance the integrity of scientific evidence admitted in our courts.  NJLRA would like to thank all of the bills' sponsors and the legislative leadership in both parties for their commitment to advancing pro-business legislation.  Together with our supporters, we are able to educate the legislature on the importance of these initiatives.  Senator Raymond Lesniak (D-Union), who was NJLRA's keynote speaker at our Fall Membership Luncheon, said NJLRA's proposals will be a "cornerstone" of the state's effort to reposition New Jersey's economy for long-term growth.  We enthusiastically accept Senator Lesniak's wisdom. 

            If you think you have seen more of NJLRA lately, it's because we have increased efforts to get our message out.  In 2010 we re-launched our website, where you can find any of the eight op-eds I authored over the past year.  NJLRA has also been the focus of several news stories and has written a dozen letters to-the-editor.  I encourage you to visit NJLRA's Blog and Facebook page.  You can also follow us on Twitter

We continue to make an effort to reach out to New Jersey's small business community.  A recent poll we conducted in conjunction with the Monmouth University Polling Institute suggests that many of the Garden State's small businesses feel vulnerable to abusive lawsuits.  We are hoping to articulate the unique needs of New Jersey's small business community as we meet with legislators across the state. 

      As we have said in the past, New Jersey cannot recover from this recession without sound policies that support job growth.  With limited resources to fund tax breaks or business incentives, legal reform offers policymakers in Trenton a revenue-neutral policy change that can send a very strong message to employers all across the nation.  States which have enacted tort reform, including Texas, now lead the country in job growth and physician retention. 

            Thank you again for your continued support.  I am confident that we will continue our path toward reforming New Jersey's civil justice laws in 2011.  Please save the date for NJLRA's first Membership Meeting of 2011, which will be held on Tuesday, March 8th at noon at the Trenton Country Club.  We will discuss our plans for 2011.  As always, please do not hesitate to contact me if I can ever be of assistance. 

Friday, December 17, 2010

Texas pursues the Holy Grail of Tort Reform

Twenty-three counties lacked an E.R. doctor.  Ten counties lacked an OB-GYN.  No, this is not a third world country: it was Texas, prior to tort reform. 

The Wall Street Journal calls the pre-reformed Texas a “holy place on the tort bar pilgrimage,” that has now morphed into a “Mecca for doctors.”  Incentives didn’t hurt, either, and Texas now leads the country in job creation.  Product liability, class-action certification, and noneconomic damage caps were reformed in 2003 and 2005.  Now, according to the Journal, Texas Governor Rick Perry wants to extend his state’s tort reform successes – British style.  It’s a thinly-veiled deterrent to filing frivolous lawsuits, which drive up business costs and drive down economic growth. 

The “loser pays” concept isn’t a new one.  The purest-form version of “loser pays” is that the losing party picks up the attorney’s tab.  The proposed caveat would impose a penalty on the losing firm which files the case, forcing trial lawyers to think twice before filing questionable claims. 

Governor Perry is also calling for “new legal channels” to expedite claims below $100,000, but details about this proposal aren’t readily available. 

It sounds like Texas might be headed in the right direction.  It begs the question: if Texas can entice doctors, why can’t New Jersey?

Wednesday, October 27, 2010

New Jersey’s civil justice climate often deals its doctors two bad hands

Medical professionals often wear multiple hats.  In addition to practicing medicine and standing up to a hostile malpractice climate, many doctors are also small business owners who must navigate New Jersey’s challenging business laws.  Think of your dentists, general practitioners, and gynecologists.

NJLRA recently launched a small business task force to learn more about this set of needs.  Our recently-released survey, conducted by the Monmouth University Polling Institute, examined the impact of New Jersey’s civil justice climate on a variety of small business types.  And as we know, the results of this survey were alarming:  approximately one-in-five small businesses have been sued in the last five years, and another one-in-three expect to be hit with a lawsuit in the near future.  Doctors and other medical professionals weren’t included in the survey sample, but I’d be willing these numbers would be skewed unfavorably if they were. 

It’s a difficult climate for any small business to operate in New Jersey.  Doctors are leaving New Jersey for greener pastures at an alarming rate.  When they have to balance the burdens of weak evidentiary standards and a hostile Consumer Fraud Act against ever-increasing malpractice premiums and costs of doing business, it’s hard to blame them. 

Thursday, October 21, 2010

Ignoring medical malpractice reform has cost us

“The academic literature tends to play down the role of medical liability laws in driving up health care costs.  Doctors themselves, however, almost universally state that malpractice statutes lead to extraneous testing and treatment.”

– Peter Orszag

Former White House Office of Management and Budget director Peter Orszag discusses the impact of ignoring medical malpractice reform during the Health Care bill’s passage.  His piece, “Malpractice Methodology,” ran in the New York Times on October 20th

When we’re sick, we want the most effective care possible, right?  But what if the most effective care possible hasn’t yet gone mainstream, to the point where every doctor is ordering it?  If a doctor uses the best resources available anyway, he or she may be self-positioning for a lawsuit, since medical malpractice cases allege that a doctor has “deviated from accepted standards of care.” 

Orszag talks about this point in detail: 

“It is also conceivable that because such laws usually focus on ‘customary practice’ — that is, a doctor who has treated a patient the way most other doctors in the area would is considered safe from accusations of malpractice — they create a strong contagion effect among doctors. The laws, no matter how weak or stringent, may therefore explain why doctors in some parts of the country generally adopt much more intensive approaches than those in other areas do.

You can read Orszag’s full column here

Tuesday, October 05, 2010

Around the web, 10.5.10

Panel To Study Concept of Requiring Malpractice Insurance for Lawyers

By Charles Toutant | New Jersey Law Journal

October 4, 2010

The state Supreme Court has formed a committee to weigh the benefits and burdens of mandatory malpractice insurance and a requirement that lawyers disclose whether they have such coverage.

Read story

Court Term Features Wrongful Death, Malpractice Cases With Unique Issues

By Mary Pat Gallagher | New Jersey Law Journal

October 4, 2010

The state Supreme Court this term has agreed to decide some prickly issues affecting wrongful death and medical and legal malpractice cases.

The wrongful death case is Aronberg v. Tolbert, A-15-10, an appeal from a June 8 Appellate Division holding that even though drivers without insurance are not allowed to sue for personal injury, their heirs can sue for their own losses.

Read story

Merck to appeal $4.6M verdict in Mass. fraud case

By Linda A. Johnson | The Associated Press

September 30, 2010

Trenton, N.J. -- Drugmaker Merck & Co. plans to appeal a federal court verdict that a former subsidiary caused the commonwealth of Massachusetts to overpay pharmacists for a widely used asthma medication, the company said Thursday.

After a three-week trial, a jury in Boston found Merck liable for about $4.6 million in compensatory damages. The judge hearing the case, U.S. District Judge Patti Saris, is to decide later on potential punitive damages, which Merck said could be substantial.

Read story

Sunday, September 26, 2010

A must read-about New Jersey’s home-grown healthcare crisis

Handlin urges action on medical malpractice bill

By Jacqueline Hlavenka / Staff Writer

State losing doctors due to premiums, legal exposure

Middletown, N.J. — In an effort to keep doctors from leaving New Jersey, local officials are supporting an Assembly bill that proposes reforms for medical malpractice actions.

The bill, known as A-1982, was introduced on Feb. 8 and updated on Sept. 14. The proposed legislation would prevent insurance carriers from raising premiums unless a physician is found liable of a medical malpractice claim, as well as other revisions to the laws governing medical malpractice lawsuits.

“Today, if a doctor is sued, his or her insurance premium can go up immediately whether or not he or she is accused of wrongdoing … just being dragged into court can mean your insurance premiums go up,” said Assemblywoman Amy Handlin (R-13th District), a co-sponsor of A- 1982, in an interview. “From the perspective of patients, medical bills end up reflecting the fact that doctors are practicing defensive medicine. They have to order tests and procedures that they may not believe are absolutely necessary for their patients, but their concern is if they don’t order them, they will be dragged into court.”

The bill, discussed at the state’s Assembly Health and Senior Services Committee on June 10, is a proposal to address health care reform on a statewide level, as the ratio of doctors to patients has decreased across New Jersey.

Read entire article in The Independent

Thursday, September 23, 2010

And the big winner is… Alabama!

The New Jersey Law Journal has published a list of its “Top 20 Personal Injury Awards of the Year.”  Unsurprisingly, several of the year’s top awards were medical malpractice lawsuits. 

Leading the pack is McCarrell v. Roche Laboratories, Inc., which consisted of a $25.16 million award to Alabama resident Andrew McCarrell.  His case was heard by Atlantic County Superior Court Judge Carole Higbee.  The 38-year-old plaintiff had taken the popular acne drug Accutane 15 years ago, which he said resulted in the loss of his colon.  The jury decided that the drug’s manufacturer, Roche, did not provide an adequate warning about possible side effects to users’ intestinal lining.  The $25,159,530 was awarded in compensatory damages – considerably higher than the next highest verdict, which was $13 million among three plaintiffs.  The drug is no longer on the market due in large part to its increased production and litigation costs. 

Also nothing to sneeze at was the $18.5 million judgment against Newark Beth Israel Medical Center awarded in April.  In Kim v. Newark Beth Israel Medical Center, the plaintiff sued an obstetrician for malpractice for waiting too long to perform a Caesarean section.  The child, who suffers from cerebral palsy, is now 12.  His mother died of lupus in 2004.  According to the New Jersey Law Journal, the plaintiff (who is the child’s grand-aunt) “benefited from a finding that negligent doctor was an employee of the hospital and covered by its insurance.”  The ruling says that hospitals are liable for a doctor’s malpractice if a patient has reason to belief the doctor’s care was rendered on the hospital’s behalf. 

The doctor was a part-time contract physician, with $1 million in insurance coverage.  The hospital had up to $150 million.  According to the New Jersey Law Journal, the plaintiff (who is the child’s grand-aunt) “benefited from a finding that negligent doctor was an employee of the hospital and covered by its insurance.”  The ruling says that hospitals are liable for a doctor’s malpractice if a patient has reason to belief the doctor’s care was rendered on the hospital’s behalf. 

The defense said that they were reluctant to perform a Caesarean section because the mother, who was a Jehovah’s Witness, had told them before childbirth that her religion prohibited her from receiving blood transfusions. 

Tuesday, September 07, 2010

A doctor explains why malpractice insurance is necessary, irrespective of his performance

It’s rare that we get to hear a first-hand account of a doctor who was threatened with a medical malpractice suit.  In an op-ed in the Washington Post, however, infectious-disease doctor Manoj Jain tells us his story, and suggests policy changes to address the 83 percent of medical malpractice lawsuits filed against doctors and hospitals which :do not: involve a negligent injury (New England Journal of Medicine, 2004).

Dr. Jain talks about how his own experience influenced the way he approached defensive medicine, and how he interacted with his patients.  As a self-described confident and conscientious practitioner, he observes the following about the federal healthcare legislation:

“The healthcare overall bill was a missed opportunity.  Legislation could have devised a “safe harbor” standard ensuing that a doctor who follows guidelines won’t be sued if a patient is injured.  Also, special medical courts could have been created to determine negligence and compensation.  The new law encourages states to explore these kinds of remedies, but this is unlikely to happen.”

You can read Dr. Jain’s op-ed in the Washington Post here

Thursday, August 26, 2010

Around the web, 8.26.10

Addicted Gamer Sues Game-Maker, Says He is ‘Unable to Function’
A federal judge is allowing a negligence lawsuit to proceed against the publisher of the online virtual-world game, Lineage II, amid allegations that a Hawaii man became so addicted he is “unable to function independently in usual daily activities such as getting up, getting dressed, bathing or communicating with family and friends.”

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware “that he would become addicted to the game.”  (David Kravets/ Wired, 8/19/10)

Third Circuit won't make Del. SC's mind up for it

Philadelphia – A federal appeals court has decided not to predict whether the Delaware Supreme Court would recognize medical monitoring claims as valid, overturning a lower court decision that said it would.
The U.S. Court of Appeals for the Third Circuit said such a prediction "requires several 'leaps' from the current state of law" and also ruled that summary judgment was properly granted to A.I. DuPont Hospital for Children in Wilmington.
Medical monitoring requires defendants to pay medical costs even in the absence of a current injury. Cardiologists at the hospital implanted a covered stent that was not improved by the Food and Drug Administration while trying to repair a congenital heart defect. (John O’Brien/ Legal Newsline, 8/24/10)

Tuesday, August 24, 2010

Does an arbitration agreement matter in medical malpractice claims? It depends.

Dr. Carlos Fernandez anticipates that some patients will be unhappy.  Before performing an ultrasound on Monica Moore in June 2008, the Ocean County doctor asked Moore, then 44, to sign an arbitration agreement.  He felt that her age could adversely affect the fetus she was carrying.  Moore was also under the care of an obstetrician, Dr. Lisa Vernon, at that time.

Moore’s baby was born with Down syndrome.  She believes that if the doctors informed her about a diagnostic test called chorionic villus sampling, the fetus’s Down syndrome would have been detected.  And in light of this information, she and her husband could have considered all of their options.

Moore filed a wrongful-birth suit in Ocean County Superior Court against the doctors.  The trial judge initially dismissed the case against Dr. Fernandez, because of the arbitration agreement Moore signed.  An appellate panel, however, said that the agreement was voided for several reasons, including the fact that Moore’s husband did not give written consent to waive his right to a jury trial.

The trial bar hoped that the appellate court would find all binding arbitration agreements, like the one Dr. Fernandez requested his patient sign, to be unlawful.  Instead, the court rejected a per se rule, decided that their enforceability should be decided on a case-by-case basis.

The New Jersey Law Journal reports that Dr. Fernandez’s attorney, however, says that the decision in Moore v. Woman to Woman Obstetrics & Gynecology, A-953-09, may conflict with another appellate decision in which arbitration was upheld.    The New Jersey Supreme Court may be asked to render the next decision.

Wednesday, August 18, 2010

Most doctors in America get sued, but most suits aren’t suited for trial

As the nation- and especially New Jersey- seek to lower healthcare costs without diminishing access to care, here is one more study showing why we simply can’t continue to ignore the medical malpractice crisis. 

The American Medical Association (AMA) recently released a study which showed that most doctors will have been sued at least once by the end of their career.  And even in the most obvious instances of lawsuit abuse, the cost is high.  The average nationwide cost for defense against a suit which is dropped is over $22,000.  Going to trial can cost well over $100,000, arguably trending upward for physicians in the Northeast.  And of course, this doesn’t account for the increase in insurance premiums or time away from a doctor’s practice.  Patients feel these affects in the form of fewer doctors from which to access care and longer appointment wait times.  In New Jersey, patients have the added consequence of the “medical brain drain,” in which UMDNJ graduates depart from the Garden State in search of sounder climates in which to practice medicine. 

The study found that general surgeons and OBGYNs are the most likely of all physicians to be sued, compounding efforts to recruit in those areas.  In total, 42.2% of all physicians surveyed had been sued, and of those aged 55 and over, 61% had been sued. 

And it’s not doctor performance which created this situation: 95 percent of malpractice lawsuits never even make it to trial.  Of the five percent which do, the doctors win 90 percent of the time, according to the AMA.  Physicians who have an “ownership interest” in a practice (and conceivably, greater assets) are more likely to be sued than physicians without an ownership interest in their practice.  It’s hard to deny that this correlation appears strategic – not coincidental. 

Monday, August 09, 2010

NJ Spotlight: Medical Malpractice Reform Advocates Urge Action Now

Following last week’s New Jersey Supreme Court decision gutting the affidavit of merit statute, Linda Moss wrote about the issue in NJ Spotlight.  Senator Loretta Weinberg (D-Bergen) and Assemblywoman Amy Handlin (R-Monmouth) weighed in, expressing support for S-760/A-1982.  The legislation calls for much-needed changes to New Jersey’s medical malpractice statutes. 

An excerpt of the story is below.  You can read the full text of her story here.  You can also view sponsors of S-760/A-1982, which includes growing bipartisan support. 

“With New Jersey facing a worsening shortage of physicians, key medical and business groups say there’s only one way to stem the losses: Take action now to reform the medical malpractice laws that are costing the state its doctors. And policymakers are getting the message, crafting legislation aimed at addressing the issue.

Friday, July 23, 2010

In a 6 – 1 Decision, N.J. Supreme Court Guts Affidavit of Merit Statute

Plaintiffs’ attorneys are able to use experts from “outside the field” to testify against doctors in malpractice suits. 


TRENTON, N.J.The New Jersey Supreme Court ruled yesterday that plaintiffs don’t need to explain why they can’t find an appropriately qualified expert to testify in malpractice cases before seeking a good-faith waiver under the Affidavit of Merit Statute, only that they gave it a “college try.” 


In the case of Ryan v. Renny, the plaintiff’s attorney filed suit against a board-certified gastroenterologist, saying that the doctor deviated from accepted standards of care when he perforated a bowel during a colonoscopy.  The justices ruled in a 6 – 1 decision that even though the plaintiff’s attorney tried and failed to secure affidavits of merit from at least three different doctors certified in the same field, they would accept an affidavit of merit from a surgeon who was not board certified and had himself not performed the procedure  in many years.


"For many years the Affidavit of Merit Statute served its purpose - weeding out meritless lawsuits.  The Court's decision guts the Affidavit of Merit and opens the door to litigation abuse against New Jersey’s doctors,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance. 


“Loosening the Affidavit of Merit Statute to the point of irrelevance is one more disincentive for doctors to practice in New Jersey, said Rayner, citing a study by the Council of Teaching Hospitals, which projects that New Jersey will be short an estimated 3,000 doctors by the end of the decade.


Justice Roberto Rivera-Soto dissented, saying that the defendant has a legislative right “to be free of malpractice claims of questionable merit.” 


A copy of the Court’s decision can be found on the web at



# # #

Thursday, July 15, 2010

The other Emergency Room issue

A dwindling pool of emergency room doctors and medical personnel has helped increase waiting room times in hospitals across the Garden State.  And as more doctors decide to practice outside of New Jersey, the average wait time probably won’t improve anytime soon.  It affects all of us: whether it’s a broken bone, a fainting spell, lack of insurance, or accompanying a friend or family member, most of us will spend time in the ER.  If your emergency can wait for any length of time, usually it does.  Understandable when there are patients who are in more emergent situations. 

So when I read Jennifer Golson’s story in the Star-Ledger about a female Muslim patient languishing in the emergency room for five hours, I couldn’t help but wonder if there is a latent issue spanning all races and creeds.  The patient, Rona Mohammedi, is suing Somerset Medical Center for religious discrimination and violating New Jersey’s version of the Patient’s Bill of Rights. 

Sporting a hijab, Ms. Mohammedi went to the emergency room last February with severe chest pain.  An electrocardiogram was ordered, and in a nod to her religious convictions, she asked for a female to conduct the test. 

The important question is why Ms. Mohammedi was waiting.  It was likely either because (A) the hospital staff was deliberately hostile toward her request, or (B) there wasn’t a female available to perform the test. Was she being ignored, or did she merely become tired of waiting?

It ended when her husband requested a transfer.  A lawyer for the hospital said that Ms. Mohammedi was informed of her options and left against medical advice.  Michael F. Schaff, chair of the health care department at Wilentz, Goldman, & Spitzer said that the Patient’s Bill of Rights makes no mention of lawsuits, and that “there is no obligation to require hospitals to have a physician on staff 24 hours a day, seven days a week based on their sex, religion, or nationality.”  That’s particularly crucial in New Jersey, since our shrinking pool of doctors makes it increasingly harder to find physicians, much less filter physicians based on sex, religion, or nationality. 

The New Jersey Hospital Association (NJHA) said that hospitals are required to make “reasonable accommodation” for patients with special requests, but how “reasonable accommodation” is defined can vary, said Kerry McKean Kelly, their spokesperson.  “Especially in a high intensity place like the ER, the question of what is reasonable can vary hour by hour based on factors like the number of patients in the ER, the severity of their conditions, staffing levels, and in this case, the gender and credentials of various staff members.  A hospital’s first responsibility is to stabilize their patients and then prioritize…” 

For a multitude of reasons, we all spend too much time in the ER.  Some contributors, like the doctor shortage, are underscored in New Jersey.  Other reasons – like a large number of uninsured residents per capita – are not unique to the Garden State. Additional preconditions placed upon our emergency rooms can turn a very long (but ordinary) ER visit into grounds for an attractive lawsuit if the patient is able to wait for their accommodations to be made but gets frustrated with how long it takes. 

Wednesday, July 14, 2010

Study: Insurance doesn’t protect small businesses from lawsuit abuse

Tort liability costs a lot, and it can be particularly expensive to small businesses. 

The U.S. Chamber of Commerce recently released the results of a startling study:  small businesses bore 81 percent of business tort liability costs in 2008, despite only taking in 22 percent of the revenue.  As a nation, small businesses (defined as having less than $10 million in annual revenue) spent $105.4 billion in tort liability costs in 2008.  And more than 1/3 of that was post-insurance, out-of-pocket expenses. 

When including small medical practices, the total amount of small businesses’ expenditures on tort liability is pushed to $133.4 billion for 2008. 

NERA Economic Consulting, which conducted the study, expects that tort liability costs will continue to increase.  They expect tort costs for small businesses, both medical and non-medical, to reach $152 billion annually by 2011.  I’m sure you can guess likely reasons: frivolous litigation and the possibility of excessive awards increase the pressure to settle; weak evidentiary rules; an overzealous trial bar.

Spending money on tort liability is not parallel to making products or consumers safer.  It’s unfortunate that the $105.4 billion in tort liability costs – particularly the $35.6 billion of which is spent out-of-pocket by businesses – is spent on legal fees instead of being reinvested toward product development and innovation.  That would be quite a sorely-needed private-sector stimulus into our economy.

Click here to read the entire report, entitled “Tort Liability Costs for Small Businesses.”

Thursday, July 08, 2010

Washington Supreme Court nixes waiting period for malpractice lawsuits

In 2006, Washington State enacted legislation which required plaintiffs to give 90 days’ notice to doctors before filing malpractice claims. 

It was recently struck down by the state Supreme Court, which said that it was the Judiciary’s responsibility – not the Legislature’s – to set court procedures. 

The 90 day waiting period was meant to encourage settlements in cases that might otherwise head straight to court, writes Curt Woodward for the Seattle Pi.  It was part of a package of medical malpractice reform legislation intended to address rising concerns over malpractice litigation.   

In late 2009, the Court also struck down a law requiring injured patients to get a certificate of merit before suing their doctor, saying it was an undue burden. 

Wednesday, June 23, 2010

In New Jersey, it’s en vogue to sue the doctor when Mother Nature is unavailable for questioning

The lawsuit was filed by the family of William Hensley, a 40-year-old Wantage resident, who died after being stung by bees 30 times while mowing his lawn.  The result is a $1.6 million judgment against a New Jersey ER doctor. 

A month before his death in August 2005, Mr. Hensley’s wife says that her husband was stung by a bee and had an allergic reaction.  The ER doctor at Saint Clare’s Hospital, Dr. Allen Retirado, diagnosed him with heat stroke.  When Mr. Hensley was later attacked by 30 bees and suffered a severe allergic reaction, he died before ever making it to the emergency room. 

The widow decided to sue the hospital.  Her attorney, Dennis Donnelly, managed to successfully argue that if William Hensley were diagnosed with an allergic reaction to a bee sting, they would have had the nest on their property removed.  And the subsequent attack would have never happened.

Keep in mind that William Hensley’s widow, Melissa, openly acknowledges that she believed her husband had an allergic reaction to one bee sting a month prior to his fatal bee attack.  One that was so severe, that he had to be rushed to the emergency room by a neighbor. 

Mr. Hensley was fine after he received treatment and left the emergency room in July.  He’d suffered no adverse medical consequences for the hospital’s failure to diagnose his allergy, and apparently felt healthy enough to mow his lawn again a month later.  Only this time, it was 30 bees that stung him instead of one. 

No one suggests that Mr. Hensley’s death isn’t tragic.  But to hold a doctor responsible for what the plaintiff says she already knew is tragic as well.  You can’t sue nature when a loved one dies, otherwise there would be 30 yellow jackets being marched into court.  New Jerseys’ doctors, unfortunately, are scapegoated instead.  Lawsuits like this one directly contribute to the crisis which is driving good doctors from New Jersey at an alarming rate.  An award of this magnitude is felt by New Jersey’s entire medical community, as malpractice premiums escalate to the point where it is no longer financially feasible to practice medicine inside the borders of the Garden State.  And it will be felt by New Jersey residents as well as doctors decide to practice elsewhere.  A study by the Council of Teaching Hospitals estimates that we New Jerseyans will be short nearly 3,000 doctors by the end of the decade. 

The $1,600,000.00 verdict proves that in New Jersey, it’s en vogue to hold the doctor responsible en lieu of the Almighty.  Since it’s difficult to name God, or Mother Nature, in a lawsuit, the doctor is at fault for Mr. Hensley’s allergy to bee stings.  (For what it’s worth, the doctors involved, Allen Retirado and Harvey Beckman, say they were never even told about a possible bee sting in the first place).

According to the Star-Ledger report, Dr. Retirado was found 52 percent negligent in the man’s death.  Harvey Beckman, an internist at Sussex Borough hospital, was found to be over 47 percent negligent in a separate confidential settlement with the widow and her attorney.  The $1.6 million verdict included $850,000 in lost wages and a near equal amount for “loss of advice and companionship.”  An additional $5,000 was awarded for pain and suffering prior to his death (and prior to reaching the hospital).   

Thursday, June 10, 2010

Tort Reform and Women's Health: What you should know about New Jersey's medical malpractice crisis and women's access to care

New Jersey’s OBGYNs pay the seventh highest malpractice premiums in the nation, encouraging them to reduce their services or practice out-of-state, where premiums are lower.

90 percent of physicians enrolled in the American Congress of Obstetricians and Gynecologists (AGOG) have been sued at least once.  Merely being named in a lawsuit can force premiums higher for OBGYNS, and the average OBGYN is sued 2.7 over the course of a career.  Physicians, therefore, are required to prepare themselves with sufficient insurance should they find themselves – or others with whom they share a practice or support staff – to be the victim of frivolous litigation.

New doctors wanting to practice obstetrics face disproportionate hurdles.  In addition to student debt, high premiums dictate that new OBGYNs will have to deliver scores of babies each quarter in order to remain financially solvent. 

The fear of being sued is one of the biggest barriers to care in New Jersey.  Nearly 60 percent of OBGYNs have made changes to their practice during the last three years because of the high risk of liability claims.

35 percent of OBGYNs have either decreased the number of high-risk obstetric patients or have ceased providing obstetric care altogether, making it harder for women with high-risk pregnancies to access specialized care.  If this trend continues, New Jersey women can expect to find that they cannot get the prenatal and gynecologic care they need, and many will not be able to find doctors to deliver their babies. 

New Jersey has the highest caesarean rate in the nation.  More than 1/3 of New Jersey babies are now delivered by caesarean section.  OBGYNS frequently site the fear of being sued as a chief reason for this high number. 

On average, New Jersey’s OBGYNs stop practicing at age 48 – an age that was once considered the midpoint of an OBGYN’s career. 

The current gap between doctors and patients in New Jersey is 12 percent.  A study by the New Jersey Council of Teaching Hospitals estimates that New Jersey will be short an additional 3,000 doctors in the next decade unless comprehensive changes are made to our state’s liability system.  If no changes are made, it increases the likelihood that the doctor shortage will reach crisis levels. 

You can listen to Marcus testify in support of A-1982 in the Assembly Health and Senior Services Committee today at 10 a.m. on the Legislature’s website. 

Tuesday, June 08, 2010

Testimony before the Women's Legislative Caucus

The newly formed Women’s Legislative Caucus held a hearing into women’s healthcare disparities in New Jersey.  The bicameral, bipartisan caucus is chaired by Assemblywomen Amy Handlin and L. Grace Spencer, and Senators Loretta Weinberg and Diane Allen.  Below is the testimony I gave to the committee. You can read the Caucus’s statement here.   


Testimony before the Women's Legislative Caucus

By Marcus Rayner, executive director

New Jersey Lawsuit Reform Alliance

Public Hearing: Access to Health Care Services

Monday, June 7, 2010


I want to thank the Women's Legislative Caucus and its co-chairs for the opportunity to testify here today.  As you may know, the New Jersey Lawsuit Reform Alliance (NJLRA) was created in 2007 out of a broad concern among business leaders and professionals in the medical community about the state of New Jersey's civil justice system.  I am very pleased that the Caucus has convened this hearing to look at the various ways that access to care is limited in certain health care services for women in New Jersey.


As the national debate on health-care reform and tort reform unfolds, it is worth noting that here in New Jersey, we have our own health- care crisis under way. And it is driving out physicians, limiting patient access to care and increasing the cost of health care for all of us.


For many existing and aspiring medical students in New Jersey, the dream of practicing specialized medicine faces a significant hurdle: malpractice insurance premiums.  Too many promising medical students are becoming a casualty of our litigious health-care system.  This, in turn, limits the number of specialized medical doctors such as OG/GYNs in our state and eliminates access to care for thousands of New Jersey women. 


At some point in their education, medical students realize that in order to have a solvent future as an OB/GYN, they will have to deliver scores of newborns each quarter just to afford the cost of the high malpractice premium. Rates have skyrocketed for doctors practicing specialized medicine during the last few years. In order to simply maintain a viable practice, many doctors will likely have to see more patients and deliver more babies than any doctor reasonably could without compromising quality of care for patients.


Conversely, many will opt to not treat various patients, such as emergency room or acute care patients, because of the liability that doing so presents.  These decisions are the direct result of the high medical malpractice premiums facing specialty doctors in New Jersey today.


Malpractice insurance costs so much because New Jersey's current civil justice laws are decisively anti-physician. Malpractice awards in New Jersey are not capped, for one, as they are in thirty-two other states. In addition, some New Jersey courts allow cases to be built around weak "junk science" that is often not permissible in other jurisdictions. As a result, New Jersey's courts have become a lottery for those wanting to turn an unfortunate medical outcome into a payday. Physicians, therefore, are required to prepare themselves with sufficient insurance should they find themselves -- or others with whom they share a practice or support staff -- to be the victim of frivolous litigation. As I mentioned, this excessive physician liability can also force many doctors to abandon specialized medicine altogether, leaving many patients without care.


While both federal and state governments bear responsibility for setting civil justice and medical malpractice policy, aspiring physicians in New Jersey are at a notable disadvantage. Medicine bears the distinction of being both business and personal. Why practice specialized medicine in New Jersey when other states, including some of our neighbors, offer much less burdensome alternatives?


In Pennsylvania, for example, punitive damages against individual physicians is limited to 200% of compensatory damages.  Many of you may be familiar with the successful medical malpractice reforms in Texas, which after capping medical malpractice awards in 2003 saw an average 21.3% annual decrease in  medical malpractice premiums in the following four years.  As a result, the number of medical license applications in Texas increased 18% in the four years since the state legislature enacted the caps. (Source, The New York Times, More Doctors in Texas After Malpractice Caps, October 5, 2007).


Mississippi experienced 25% annual increases in medical malpractice premiums prior to their reforms and even created a state insurance pool to offer coverage to doctors.  After their reforms, rates plummeted and the State of Mississippi was able to sell the state insurance pool.


According to the National Conference of State Legislatures, all but 15 states have adopted some limit on medical malpractice awards.  New Jersey must join the majority of states in adopting some reasonable limits on medical damage awards.  Without them, we will continue to force doctors out of our state and we will limit care to thousands of our most vulnerable women and children.

Friday, May 28, 2010

Around the web, 5.28.2010

Why are so many Jersey moms having C-sections?

By Lorraine Ash and Andrea Clurfeld | Daily Record

May 25, 2010

Nationwide leader: 4 out of every 10 births in New Jersey are C-sections

Read Article

Woman files another suit against Oprah

By Kyla Asbury | Legal Newsline

May 25, 2010

Charlestown, W.Va. - A Charleston woman is suing Oprah Winfrey again, this time claiming the talk show host took funds from her Social Security account and deposited them into the U.S. Treasury.

Read Article

Chathams schools sue attorney, allege malpractice

By Sarah Schillaci | The Star-Ledger

May 16, 2010

The School District of the Chathams is suing its former attorneys for malpractice, alleging the firm cost the schools in excess of $1.5 million when it mishandled a 2005 dispute with a contractor.

According to a lawsuit filed last week in Superior Court in Morris County, Attorney Nuris E. Portuondo with the Morristown-based law firm of Schwartz, Simon, Edelstein, Celso & Zitomer failed to file documents on time that would have tipped the lawsuit in the district’s favor.

Read Article

Frivolous-Suit Sanction Lifted Where No Bad Faith Found

By Charles Toutant | New Jersey Law Journal

May 25, 2010

Filing a frivolous pleading requires not only the act but the intent, a state appeals court said Tuesday in reversing a $6,500 sanction against a lawyer.

The court said the judge who imposed the penalty on Clayton solo Melissa Hoffman failed to find that she acted in bad faith — either in filing a duplicative suit after one was dismissed or in failing to withdraw it when the threat of sanctions was raised.

Read Article

Monday, May 24, 2010

Regarding "Best advocacy companies can buy" (Your Views, May 5)

Senator Cardinale had a great letter-to-the-editor in the Record last week:

“I find it interesting, yet unsurprising, that a self-described medical malpractice attorney doesn't want to address initiatives that will help bring much-needed economic growth to New Jersey…

“The letter writer said that "money and power cannot get in the way of justice." He conveniently ignores the facts. Consumers don't have to be defrauded in order to file a lawsuit against our businesses under the current consumer fraud act. Trial lawyers can easily prey on New Jersey's businesses, large and small, because we've made it so easy to cash in on settlements. There's nothing just about multimillion-dollar settlements rivaling the state lottery being paid out at the expense of our state's businesses and the thousands of people they employ across New Jersey.

According to the Healthcare Institute of New Jersey, it takes over $1 billion to develop a new health care treatment. Instead of investing in further research and development, multimillion-dollar awards — like the $25 million-dollar award to an Alabama resident — the trial bar is turning New Jersey's pharmaceutical industry (once called "the nation's medicine chest") — from an asset into a liability.

You can read Senator Cardinale’s (R-39) entire letter-to-the-editor here. 

Wednesday, May 19, 2010

Look who's talking now

We all know that New Jerseyans are in the midst of an economic crisis.  In an op-ed in The Record last month, Marcus outlined a few ways in which reforming our civil justice statutes could play an important role in New Jersey’s economic growth, by allowing businesses to allocate fewer resources toward fighting frivolous litigation and toward attracting and retaining new jobs.  A separate but related issue is the chilling impact our civil justice laws and high cost of living are having on New Jersey’s dwindling medical community. 

I guess it’s not surprising that a self-described medical malpractice attorney doesn’t want to talk about either. 

Let’s talk about Accutane

Of course people who are injured by products should be compensated for their injuries and losses.  In the case of Accutane, which had been on the market for two decades and worked successfully on many people, a handful of users experienced moderate side effects typical of most medications.  In one instance though, an Alabama resident said it resulted in the loss of his colon.   NJLRA maintains that a lottery-sized verdict – tens of millions of dollars – paid to one person who experienced negative side effects shortchanges others involved.  Imagine if the plaintiff received fair compensation and the balance of this staggering award were spent on research and development instead.  Its manufacturer and the FDA might be able to determine why this occurred, and improve one of the most effective and widely-used acne medications on the market.  Instead, Roche was forced to discontinue production of Accutane, due in part to the cost of litigation. 

 Let’s talk about jobs

Or, more quantifiably, 140,000 of them.  As of 2009, the biopharmaceutical and medical technology community remained New Jersey’s premier industry.   One of every seven pharmaceutical jobs nationwide is held by a New Jersey resident, according to the Bureau of Labor Statistics.  Indirectly, they bring enormous financial support to the communities in which they operate.  In some communities, like Whitehouse Station, the lion’s share of tax rateables are derived from pharmaceuticals – contributing to the community’s vibrance and alleviating the tax burden on residents while not placing a strain on certain services, like schools. 

The 140,000 New Jersey residents they employ, however, is a smaller number than the previous year. And these are well paying jobs.  The average employee’s salary is over $125,000 annually, according to the HealthCare Institute of New Jersey (HINJ).  These jobs are particularly valuable as other industries struggle.  In a 2009 Star-Ledger story about the economic forces challenging the industry as a whole, New York-based pharmaceutical analyst Les Funtleyder offered a grim perspective.  “The pharmaceutical industry just doesn’t have enough money anymore to support these big companies and all their employees,” he said.  “We’re going to see decreased employment in New Jersey pharma.” 

Millions of dollars were paid in civil damages over the last few years by the same pharmaceutical companies that New Jersey depends on to keep it healthy and lead its economy.  Many of them – 93% of mass tort cases, to be exact – were filed by out-of-state plaintiffs.  Excessive litigation is an antithesis of economic growth.  That’s millions of dollars being taken out of New Jersey’s economy at a time when it is sorely needed.  And when litigation and settlement costs get high, so does the pressure to cease production.   

New Jersey’s pharmaceutical companies are among the most philanthropic businesses in the state.  In 2008, they contributed $221 million to New Jersey causes, ranging from Rutgers University and the United Negro College Fund, Inc. to the New Jersey Performing Arts Center and Teach for America.    

Let’s talk about “justice”      

Lottery awards aren’t a benign punishment inflicted on “big pharma.” Its victims include our friends and neighbors who utilize New Jersey’s biopharmaceutical industry for employment or community support.  And of course, there are those who are truly injured and deserving of compensation.  But all too often, while they may have the financial security bestowed upon them, they rarely have a hand in improving a drug’s safety or effectiveness.  Usually, it’s an asterisk instead – if not the end of the medicine altogether. 

Before lending a sympathetic ear to the trial bar – which has nothing to gain except millions of dollars in attorneys’ fees – remember the words of the HealthCare Institute of New Jersey’s late president, the Honorable Bob Franks.  In his 2009 Annual Report, he said, “Our most important mission is to pursue promising medical breakthroughs and discoveries for the enhancement of world health.”

Now that’s just.