The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its unpublished opinion filed on June 4, 2019 that the plaintiffs’ medical malpractice attorneys were entitled to pursue a breach of contract claim against a medical expert hired to testify in the underlying medical malpractice lawsuit after the expert withdrew from the case.
The underlying New Jersey medical malpractice lawsuit involved the medical negligence claims of an estate and the husband of the decedent against a physician and his employer arising out of laparoscopic gastric banding surgery performed on the decedent in November 2007 that led to a pulmonary embolism and the woman’s death.
In representing the estate, the plaintiffs’ medical malpractice attorneys communicated in some fashion with National Medical Consultants and hired a medical expert to provide expert testimony in the medical malpractice action. Shortly before the September 2015 trial, the medical expert advised the plaintiffs’ lawyers that she would no longer participate. The medical malpractice plaintiffs sought an adjournment to hire a new expert, which request was denied and the medical malpractice action was dismissed. No appeal was filed with regard to same.
The plaintiffs’ medical malpractice lawyers sued National Medical Consultants, the expert that had withdrawn her services, and others, alleging breach of contract and negligence, seeking damages caused to them by the termination of the medical malpractice action. The defendants moved for a dismissal, which was granted in part and denied in part. The lawyers appealed.
The New Jersey Appellate court held: “Now, to be sure, plaintiffs were in large measure acting as the estate’s representative in their dealings with defendants, but that does not preclude either a derivative or independent right to relief if defendants’ negligence or breach of contract wrongly caused plaintiffs injury beyond or different from the estate’s alleged injury. The very nature of plaintiffs’ contingency fee agreement with the estate reveals plaintiffs had a real stake in the outcome of the medical malpractice action because certain obligations incurred during the litigation would be solely borne by plaintiffs if no recovery was obtained and because a recovery in favor of the estate would also benefit plaintiffs. In short, it may be that plaintiffs’ claim is largely derivative of the estate’s, but, if the estate has a recovery in the federal action against the defendants, then plaintiffs’ interest may transform from a theoretical claim to a claim that might entitle them to compensation from defendants directly or through the estate’s recovery. We, thus, find no error in the judge’s denial of the motion to dismiss the breach of contract and negligence claims – contained in the first three counts of the complaint – against these defendants.”
If you or a loved one may have been injured (or worse) as a result of laparoscopic gastric banding surgery in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your laparoscopic gastric banding surgery medical malpractice claim for you and represent you or your loved one in a laparoscopic gastric banding surgery medical malpractice case, if appropriate.
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