First appeared in NewsBreak
By Aron Solomon
As Law360 first reported, a New Jersey appeals panel has revived a woman’s 2020 suit alleging that her doctor botched a surgery intended to treat her hammertoe condition, saying the trial court wrongly considered her doctor’s notes while deciding on a motion to dismiss.
As medical malpractice lawyer Eric Purchase observed, “This case highlights the complex legal issues that can arise in medical malpractice suits, including questions of standard of care, informed consent, and admissibility of evidence.”
Let’s take a look at the key factors in play here:
Standard of Care
The plaintiff alleges that her doctor failed to meet the standard of care in performing the surgery, which is the level of care that a reasonably competent and skilled health care professional would provide under similar circumstances. If the doctor did not meet this standard, he or she may be liable for medical malpractice.
Informed Consent
The plaintiff may also argue that she did not give informed consent for the surgery, meaning that the doctor did not adequately explain the risks and benefits of the procedure before she agreed to it. If the woman did not give informed consent, the doctor may be liable for battery.
Motion to Dismiss
The trial court dismissed the plaintiff’s suit based on the doctor’s notes, which the appeals panel found to be improper. The appeals panel held that the trial court should have considered only the plaintiff’s allegations in deciding the motion to dismiss. This raises the issue of what evidence is admissible at the motion to dismiss stage of a lawsuit.
Statute of Limitations
The plaintiff filed her suit in 2020, which reminds us that when it comes to personal injury and medical malpractice, the timing of filing claims is critically important. In New Jersey, as per N.J.S.A. 2A:14-2, the statute of limitations for medical malpractice claims is two years from the date of the alleged malpractice, or two years from the date the patient discovers or should have discovered the injury. While this plaintiff filed her claim within the window set forth by the statute of limitations, many potentially valid injury claims are barred because they are not filed in time.
One of the noteworthy things about this case is that hammertoe surgeries do not specifically have a high rate of medical malpractice claims compared to other foot and ankle surgeries. However, orthopedic surgery, which includes foot and ankle procedures, is considered a high-risk specialty when it comes to the probability of receiving a claim.
In fact, close to 15% of orthopedic surgeons are litigated annually. In general, surgical specialties are at a higher risk of malpractice claims compared to other medical specialties. Malpractice claims associated with foot surgery most frequently end in defense verdicts (68.1% of cases).
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Strategy Officer for AMPLIFY. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, The Hill, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, BuzzFeed, Venture Beat, The Independent, Fortune China, Abogados, Today’s Esquire, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.