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NJ Appellate Ruling Shows Common Plaintiff Struggle with Malpractice Claims

NJ Appellate Ruling Shows Common Plaintiff Struggle with Malpractice Claims

The New Jersey Law Journal reported on December 29, 2020, that the state’s appellate court ruled against a medical malpractice claim for emotional distress based on lack of expert testimony or viable medical evidence.

Judge Stephanie Mitterhoff and Judge Carmen Alvarez dismissed the medical negligence claim of plaintiff Francis Clark stating that the claim failed to demonstrate proof of his right to collect damages. This came after Clark argued on appeal that the lower court made a mistake in dismissing the case based on Clark’s failure to submit a requested affidavit of merit in a timely manner.

Francis Clark’s Medical Negligence Case

Francis Clark, who is paraplegic, underwent surgery performed by Dr. David Nenna in May 2017 to remove four washers and screws another surgeon had previously implanted in his femur. Dr. Nenna removed the screws while leaving the washers in place due their location in Clark’s scar tissue. Dr. Nenna’s defense of his decision was that removing the washers would increase Clark’s risk of an infection because the procedure would require him to make a larger incision.

After he realized that Dr. Nenna failed to remove the washers in the scar tissue of his femur, Clark sought legal advice on medical malpractice lawsuits. He decided to proceed with the claim based only on the emotional distress he experienced after the surgery.

The burden of proof for plaintiffs in emotional distress medical malpractice lawsuits is high. To qualify for entitlement to damages, plaintiffs must demonstrate that they suffered from genuine, severe, and substantial distress that no reasonable person would have the ability to bear. Plaintiffs in such medical negligence cases must present extensive evidence from a mental health professional at a minimum.

Response of Dr. Nenna and Hunterdon County Superior Court

Dr. Nenna initially moved to dismiss the medical malpractice claim against him with a summary judgment in March 2019. The doctor stated at that time that Clark failed to produce an affidavit of merit qualifying his emotional distress.

Michael O’Neill, the Hunterdon County Superior Court judge, agreed with Dr. Nenna’s summary judgment in May 2019. Judge O’Neill ruled that although Clark did eventually produce the affidavit of merit, his action did not occur in a timely manner. Therefore, Clark could not receive damages in his medical negligence case.

Appellate Court Justification of Ruling

As the plaintiff, Clark never stated that Dr. Nenna’s actions during surgery occurred with the intent to cause him physical or emotional harm. Judge Mitterhoff and Judge Alvarez of New Jersey’s appellate court stated that a complaint of emotional distress does not necessarily support a genuine likelihood of severe suffering. Since Clark did not present medical evidence or expert testimony to support his claim, Judge Mitterhoff and Judge Alvarez upheld Judge O’Neill’s decision.

The affidavit of merit requirement commonly causes challenges for plaintiffs in medical malpractice cases that can already be notoriously difficult to prove. Injured parties experiencing distress similar to what Clark reported should secure an experienced medical malpractice plaintiff’s attorney before moving forward with their claim.


Appellate Ruling Spotlights Hurdles for Medical Malpractice Plaintiffs | New Jersey Law Journal

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