On October 20, 2014, the New Jersey Supreme Court heard oral arguments in a case that may decide if New Jersey physicians are under a duty to disclose to their patients that they do not have medical malpractice insurance coverage for the procedure being performed, and whether a surgical center where the uninsured physician performed the procedure can be held liable for failing to confirm that a physician using its facility has the proper medical malpractice insurance coverage.
The Underlying Facts
The plaintiff had a 20-year history of back pain that extended into his right leg for which he tried chiropractic care that was ineffective. He then consulted with the defendant anesthesiologist in September 2005, who diagnosed the plaintiff with a herniated disc in his lumbar spine, lumbar radiculopathy, and with discogenic back pain. The defendant anesthesiologist, whose medical malpractice insurance coverage expressly excluded coverage for spinal surgery, recommended that the plaintiff undergo surgical lumbar fusion at the L4-L5 and L5-S1 levels to be performed by him that involved implanting two mesh cages screwed into place.
Following the surgery, the plaintiff began experiencing pain in his left leg and had left foot drop. Other surgeons removed the mesh cages and screws that they determined were pinching a nerve in the man’s back. The man experienced improvement in his condition but still had left foot drop that apparently was due to injury to the nerve at the L4-L5 level.
New Jersey law requires that physicians practicing in New Jersey have at least $1 million in medical malpractice insurance coverage per occurrence and $3 million in medical malpractice insurance coverage per policy year. If medical malpractice insurance coverage is not available, New Jersey physicians can satisfy the statutory requirement by providing a $500,000 letter of credit. C.45:9-19.17.
Unbeknownst to the plaintiff, the defendant anesthesiologist did not have the required medical malpractice insurance coverage and he did not have a $500,000 letter of credit.
The plaintiff’s medical malpractice lawsuit alleged that the defendant anesthesiologist concealed his lack of medical malpractice insurance for the spinal procedure and that such concealment amounted to deceit, misrepresentation, and outrageous conduct by the defendant. The plaintiff also alleged that the defendant anesthesiologist committed a battery because the defendant failed to obtain the informed consent of the plaintiff for the surgical procedure when the defendant anesthesiologist failed to disclose to the plaintiff that he was uninsured for the procedure.
The plaintiff further alleged in his medical malpractice lawsuit that the surgical center where the surgery was performed owed a duty to the plaintiff to make sure that the defendant anesthesiologist had the proper medical malpractice coverage for the procedure he performed at the defendant surgical center. Two lower courts determined that the plaintiff could not sue for deceit or battery.
A New Jersey medical malpractice jury awarded the plaintiff and his wife compensatory damages in the amount of $1.14 million, which the lower appellate court affirmed.
It is unknown when the New Jersey Supreme Court may issue its decision in this important case.
If you or a family member have been harmed as a result of medical negligence in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or find a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical malpractice attorneys in New Jersey or in your state who may assist you.
Turn to us when you don’t know where to turn.