Expert Witness Rules Toughened for Medical Malpractice Cases in New Jersey

John Fisher
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Stopping Medical Injustice

Generally the facts in medical malpractice cases are too complex for lay persons to determine whether the doctor should be liable for the patient’s injury.  That is why almost all medical malpractice cases require the testimony of medical expert.  Many states even require that a party get the opinion of a medical expert prior to starting a lawsuit.  Additionally, some states have more stringent expert testimony rules, such as New Jersey where the rules have just become tougher.

 

The New Jersey Supreme Court recently ruled that doctors that are called as expert witnesses on the behalf of patient need to hold the same credentials as the physician who is accused of making the mistake.  The decision was unanimous. 

 

The case involving a construction worker from South Jersey who suffered carbon monoxide poisoning in 2005 after operating a gas powered saw in a basement.  It was recommended by an emergency room doctor and attending physician at South Jersey Healthcare Regional Medical Center that the construction worker, Edward Nicholas, receive treatment of 100 percent oxygen and medication.  As a result of this treatment Nicholas suffered brain damage as well as other injuries.  He sued for negligence in 2007.

 

The expert witness in this case, Lindell Weaver, was an internist and had a subspecialty in hyperbaric medicine.  Weaver testified that Nicholas’ injuries would not have been as severe had been ordered to receive pure oxygen while in a hyperbaric chamber.  It was acknowledged by Weaver that there were mixed opinions about the best treatment for carbon monoxide poisoning.

 

Justice Barry Albin said that the trial judge should not have allowed Weaver’s testimony since she did not specialize in the same area as the doctors who treated Nicholas.  Their specialties were emergency or family medicine.  The judge did acknowledge that Weaver was without question an expert in the treatment of carbon monoxide poisoning and the use of hyperbaric oxygen.  However, the Patients First Act of 2004, which was aimed at slowing the escalation of medical malpractice insurance premiums, was determined by the court to not permit Weaver to testify about standard of care when it comes to a physician practicing in a different specialty.

 

This ruling will make it more difficult for patients to be successful in a medical malpractice lawsuit.  It now limits the number of experts a patient can have testify to a specific field which will make it more difficult for patients to find a qualified expert witness.

 

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] .  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

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