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The Essentials: Jane DOE Sues for Medical Malpractice and Battery, Research Paper Example

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Research Paper

Time Frame:

April 2006: Jane Doe authorized Dr. Trost and his assistants and associates to perform labor and delivery, Fetal monitoring and, if necessary, a Cesarean Section. Throughout the time of her pregnancy, she saw Dr. Trost primarily, but occasionally saw Dr. Nobura and Dr. Scott during the term of her pregnancy.


13 October 2006: Jane Doe and called the hospital at 5:00 a.m., when she went into labor.


14 October 2006: Jane Doe spoke with Dr. Scott, who eventually told her to come in at 12 o’clock p.m. He then monitored her progress via phone through nurse reports.


15 October 2006: At eight o’clock the next morning, Jane Doe eventually saw Dr. Trost and was relieved. His advised medical option was to administer a drug to speed her contractions. Then Dr. Trost went to breakfast for a cup of coffee, and was observed taking ten (10) pills and drinking coffee that suspiciously smelled of alcohol by a resident physician of the hospital named Dr. Stuart Young. They had a brief conversation about Dr. Young’s interest in obstetrics, and Dr. Trost asked Dr. Young if he would like to observe the delivery of Jane Doe’s baby. Even though just a resident, Dr. Trost introduced resident Young to Jane Doe as “Dr. Young.” During a routine scrubbing procedure before surgery, Dr. Trost asked if resident Young would like to deliver the baby. Dr. Young worried about the legalities of this opportunity since he was just a resident, and not the physician of record, but figured that he should proceed after his observations of Dr. Trost at breakfast. They began the procedure. Complications arose and a Caesarean Section was needed. Dr. Young successfully delivered Jane Doe’s baby. After the delivery, however, Jane Doe experienced lethargy and severe stomach cramps that lasted sporadically until she sought medical assistance after not being able to get pregnant again. (see precedent set by Hoang v. Swedish Health Services)


March 2009: Due to Dr. Trost’s retirement, Jane Doe sought medical attention from a separate doctor; it was found through an ultrasound that there were three (3) decaying sponges in her uterus, evidently from that Caesarean Section performed back in October, 2006. (see new additon incorporated by Williams Mullen Plasterers’ Local Union No 96 Pension Plan v. Pepper, No. 10-1364: 4th Cir., December 1, 2011)

January 2010: Jane Doe decided to bring suit against Dr. Trost for medical malpractice and she desires to sue for battery as well.


The issue is whether Jane Doe may sue for battery and there are several cases that analyze this contemplation.

The issue of the Statute of Limitations arises due to the two (2) year Statute of Limitations in which a person may bring suit regarding medical malpractice cases. In Lopez v. Swyer, 62 N.J. 267 (1973), the New Jersey Supreme Court held that in an appropriate case, a cause of action will be held not to accrue until the injured party discovers or by an exercise of reasonable diligence and intelligence should have discovered that he or she may have a basis for an actionable claim, and that the Statute of Limitations in medical malpractice claims does not begin to run until the victim knows or reasonably might have been expected to know the nature of his or her injuries sustained and their relation to the alleged negligence of the treating physician.



Defendants failure to prove Discovery:  Ethically and Morally Blinded Investigation

The Court further held that the Plaintiff could bring suit regardless of the medical Statute of Limitations, once Plaintiff reasonably knew of injuries in existence of a medical problem or cause of action. In Jane Doe’s case, the Supreme Court decision in Lopez dictates that Jane Doe may bring suit regardless of the Statute of Limitations in medical malpractice issues.


Other issues arise regarding the term “ghost surgery,” and if Jane Doe did indeed become the victim of “ghost surgery” and in essence become the victim of battery, which is an intentional tort: In Monturri v. Engelwood Hosp., 246 N.J. Super 547, the issue at hand is whether Monturri was the victim of “ghost surgery” (intentional tort of battery) and whether or not she could bring suit against the Hospital for medical malpractice as well as battery, which seems to be the same issue that arises in our Jane Doe case. In Monturri, the motion judge held that there was no ghost surgery because Plaintiff consented to a particular surgeon and his assistant performing the operation which was indeed performed by that surgeon and his assistant.



Proof of Negligence:

However, in Jane Doe’s case, she was having a critical medical procedure in which she had no knowledge of Dr. Young and his medical substitution for Dr. Trost, Jane Doe’s primary care physician.




In Monturri, since Plaintiff was aware of the presence of the assistant surgeon, there was no situation as to “ghost surgery,” an intentional tort known as battery and therefore Plaintiff could not sue on the grounds of battery. Monturri’s case is still critical however, because in it, it still states that if a patient is not informed as to the identity of the operating surgeon, the situation is considered “ghost surgery,” and this was decided by the Judicial Council of the American Medical Ass’n, Op. 8.12 (1982). Monturri also cites Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983), where the Supreme Court held that such battery results when a medical procedure is preformed by anyone other than the deignated physician regardless of good intention. The patient, Betty Perna was not aware of attendee’s status, and was not directly given the right and choice to be treated by her selected obstetrician, Dr. Glick. A patient, in essence, is entitled to choose his or her own physician and should have the choice to accept or deny the situation of their main physician. By signing the consent, Monturri

1.) expected Dr. Glick to perform the surgical operation within the scope of authority granted in her consent form regarding the specific operation;

2.) expected to be cared for according to the terms of the contract;

3.) have complete disclosure of the facts with respect to the needs and performance of the operation; and

4.) for selected physician to utilize best skills in his performance for which he was hired. Monturri was entitled to services of her selected physican, Dr. Glick, and no one else. Dr. Glick was not entitled to delegate to any other person his duties and responsibilities related to this specific surgery. Disclosure was never made that “any resident, associate or assistant would be performing the specific and particularly selected scope and responsibility of Monturri’s Bilaterl Tubal Ligation and other surgical procedures. According to the Judicial Council of the American Medical Association, Op. 8.123 (1982), “If a patient is not informed as to the identity of the operating surgeon, the situation is “ghost surgery,” Id. at 463 n. 3, 457 A. 2d 431. Ghost surgery “remains battery even if performed skillfully and to the benefit of the patient.” Id at 463, 457 A.2d 431.

This follows statute established by Hoang v. Swedish Health Services (SHS), where Dr. Grace Dy’s negligence took fault and SHS was unaccountable:

SUBSEQUENT HISTORY: Reported at Hoang v. Swedish Health Servs., 2009 Wash. App. LEXIS 176 (Wash. Ct. App., Jan. 20, 2009)


Appeal from King County Superior Court. Docket No: 05-2-36470-0. Judgment or order under review. Date filed: October 12, 2007. Judge signing: Honorable Linda Lau.

COUNSEL: Counsel for Appellant(s): Mary H. Spillane, William Kastner & Gibbs, Seattle, WA; David L. Martin, Lee Smart PS Inc, Seattle, WA.

Counsel for Defendant(s): Elizabeth Ann Leedom, Bennett Bigelow Leedom PS, Seattle, WA.

Counsel for Respondent(s): Matthew Gilbert Knopp, Michael Simon Wampold, Felix G. Luna, Peterson Young Putra, Seattle, WA; Kenneth Wendell Masters, Wiggins & Masters PLLC, Bainbridge Island, WA.


JUDGES:  Authored by Susan Agid. Concurring: C. Kenneth Grosse, Marlin Appelwick.


OPINION BY: Susan Agid


OPINION:  Agid, J. — A jury found that Tri Hoang died because of Dr. Grace Dy’s negligent medical treatment. Dy appeals from the September 12, 2007 judgment, arguing that the trial court erred by (1) awarding damages based on the jury’s determination of what Tri n1 would have accumulated from his stocks and stock options had he lived, (2) excluding evidence about what Tri’s estate did with his stocks and stock options, and (3) excluding evidence about Tri’s brother Joseph’s earnings after September 2005 for the purpose of determining Joseph’s dependence  [*2]  on Tri at the time of Tri’s death

Although Perna defines ghost surgery as battery, the court held that in Monturri, there was no grounds for ghost surgery, because Plaintiff consented to a particular surgeon and his assistants and associates in performing an operation. Perna is distinguished and similar to Jane Doe’s case because even though both patients signed consent forms authorizing both main physician and associates/assistants, an unauthorized substitution was made in the performance of the specific medical procedure without the Plaintiff’s knowledge or proper prior knowledge. As stated in Perna, “battery results when a medical procedure is performed by a “substitute” doctor, regardless of good intentions,” Id. at 459-465, 457 A.2d 431. Jane Doe was the victim of a “ghost surgery” which, according to Perna, makes Jane Doe an absolute victim of battery, and she should move forward regardless of the Statute of Limitations, (in accordance with Lopez v. Swyer), and with a medical malpractice claim as well as a battery claim due to the “ghost surgery” of Perna, performed on her. In Monturri, the Plaintiff was introduced to the resident physician and had prior knowledge of his presence and interest in her surgical procedure, therefore, her motion for battery was denied, proving that Monturri’s fact patter within the case is similar in some ways, but different with resect to Monturri having prior knowledge of her treating physician and the presence and possible performance of a substitute surgeon, whereas Jane Doe had no idea Dr. Young would substitute entirely for Dr.Trost, and therefore become a victim of “ghost surgery,” and have a clear claim for battery as well as blatant medical malpracticedue to the three (3) sponges left in her uterus.



Williams Mullen Plasterers’ Local Union No 96 Pension Plan v. Pepper, No. 10-1364 (4th Cir., December 1, 2011)  The U. S. Court of Appeals for the Fourth Circuit has ruled that retirement plan trustees cannot be held liable for failures to investigate the prudence of plan investments or to diversify those investments, unless there is a proven causal link between such fiduciary failures and losses to the retirement plan.  The court’s decision in Plasterers Local Union No. 96 v. Pepper, No. 10-1364 (4th Cir. December 1, 2011), vacated a judgment for the current trustees of the retirement plan and remanded the case for further proceedings, with clear guidance on the crucial issue of liability.



Another issue arises in the case of Samoilov v. Raz, 222 N.J. Super, 108, 536 A 2d. 275. The issue relates to whether of not Jane Doe can bring a suit for battery when she signed a previous consent form, essentially allowing her treating physician and his/her assistants and associates to be involved in the surgery, like Samoilov had in his case. In Samoilov, he did not prevail on the issue of bringing suit regarding assault and battery due to his signed consent. It is stated in Samoilov that the battery theory should be only at issue when an instance occurs when a patient consents to the performance of a particular and specific surgical procedure and the physician actually and in all reality performs a substantially different procedure for which authorization was not obtained and the results highly unexpected. In Samoilov, although believed to have been assaulted and a victim of battery, was indeed not so. The Plaintiff’s physician alerted him of the possibility of facial nerve damage due to the specific surgery at hand and for which he agreed to proceed with. The Court ruled in favor of the Defendant. However, in Samoilov, it is still stated that the battery theory should be reserved for those instances where the patient consented to the performance of a kind of operation and the physician performed a substantially different one for which authorization was not obtained. Although Jane Doe’s operation was not substantially different from the one that she actually and factually obtained and consented to, Jane Doe was indeed the victim of a “ghost surgery,” where even in Samoilov, it is stated through words set forth in Perna, that essentially, in a case based on medical-type battery, a patient need not prove that his or her physician has deviated from a professional standard of care by essentially allowing an unauthorized invasion of a victim’s body, even if harmless, such as what is stated in the fact pattern in our Jane Doe case.


In Perna v. Pirozzi, 92 N.J. 446, the legal issue is whether a patient who consents to surgery by one surgeon but is actually operated on by another, has a cause of action for medical malpractice and battery. In Perna, it was held in an action by patient against physician predicated upon battery, that the patient need not prove initially that physician has deviated from the professional standard of care. Secondly, under a battery theory, proof of unauthorized invasion of Plaintiff’s person, even if harmless, entitles him/her to nominal damages. Thirdly, under the battery theory, patient may recover for all injuries proximately caused by mere performance of operation he or she has not consented to, whether there was negligence or not. Fourth, jury can award damages for mental anguish resulting from belated knowledge that operation was performed by a doctor to whom patient had not given consent and punitive damages may be assumed in the appropriate case. Fifth, any non-consensual touching is considered battery. Sixth, absent emergency, a patient has the right to determine not only whether surgery is to be performed on them, but who shall perform it. Seventh, a surgeon who operates without patient’s consent engages in unauthorized touching of the person, and thus constitutes battery or a nonconsensual operation which still remains battery even if it is performed skillfully and to the benefit of the patient.



Discovery is the pretrial period during which lawyers from both sides of a case seek evidence and investigate facts. Interviewing witnesses and examining documents is usually part of this process. Information gathered during discovery must be shared by both sides of the case.


During the discovery process, your attorney may interview the drivers, witnesses and other parties who have information about your case in depositions. Lawyers from both sides will be present at depositions. Each side is allowed to ask questions and make objections. Similarly to a court proceeding, the witnesses swear to tell the truth. A stenographer records everything that is said in a deposition and later makes a transcript of the deposition which both sides can use as evidence at trial.


Document production also is sought during discovery. Medical bills, medical evaluations, statements of earnings, statements about other aspects of your case and other documents can be sought by each attorney during discovery. Information gathered can be used by either attorney during the trial process.


Having statements of witnesses in advance is handy because if a witness contradicts an earlier statement, the prior testimony can be used to establish inconsistencies in testimony. That is one of the reasons your attorney will be present at all depositions and review all of the documents in your case in advance of trial.


Attorneys often bombard each other with motions and interrogatories during the discovery process. This is a time consuming part of an attorney’s job. This can help facilitate settlement if one or both parties do not want to go to trial.

Source: “Free Legal Information” Copyright © 2012 ExpertHub.com. All rights reserved. BBB Approved.


In Perna, Plaintiff’s alleged in a cause of action, among other things, a failure to consent to the operation performed by a Dr. Del Gaizo, when the original operation and full understanding prior to surgery was that Ms. Perna’s consent to the operation was conditioned and predicated upon her belief that her treating and main physician, Dr. Pirozzi, would be the only surgeon doing the surgical procedure.



Common Knowledge Doctrine:

In Perna, the nature of the claim resulting from the performance of the surgical procedure by a physician other than the one named in the consent form, called “ghost surgery,” is extremely similar to the case of Jane Doe. The ruling in Perna recognized claims characterized by a failure to obtain informed consent and is considered medical malpractice, while a failure to obtain any consent is better classified as a battery. In our Jane Doe case, even though she signed a previous consent form for “Dr. Trost and his assistants and associates” to perform her necessary procedures, she did not give any consent to have a hospital resident named Dr. Stuart Young touch, operate or perform any surgical procedures, especially that of a Cesarean Section, which constitutes a strong case for medical malpractice and battery, in that absolutely no familiarity or mutual acknowledgment of his future duties were discussed with Jane Doe prior to her surgical procedure. Therefore, in Perna, which seems synonymous to our Jane Doe case, touches upon many factual events that closely match those of the victim for which we speak of currently. In both Perna and Jane Doe, the patient did not need to prove immediately that the attending physician deviated from the scope of professional standards of care.


Moreover, Dr. Young’s unauthorized delivery of Jane Doe’s baby via Caesarean Section proves to be an unauthorized invasion of Doe’s person. Upon analyzing Perna, it seems that Jane Doe has a very strong case for medical malpractice as well as for battery in that Dr. Young’s delivery of her baby is considered a non-consentual touching of her body, since she was unaware of his surgical performance until depositions taken by a delivery room nurse in January of 2010. Most importantly, however, in Perna, it has been ruled that a patient who consents to surgery by one physician/surgeon but is actually operated on by another, has an action for medical malpractice against the former (Dr. Trost), and a battery case against the latter (Dr. Stuart Young) for battery even when two (2) surgeons are engaged in group practice, such as what matches in the fact pattern given by Jane Doe. Lastly, Dr.Trost had a duty to provide his personal services according to the agreement she signed and vocally discussed with him. Jane Doe was surgically operated on by Dr. Stuart Young, a resident of the hospital for which she sought medical attention for obstetrical management, and not at all by Dr. Trost, (which goes against her entire wish and command stated in her previously signed consent form).


Moreover, according to Perna, Jane Doe may also sue for mental anguish, resulting from the belated knowledge that her operation was performed by a doctor for whom she had not given consent, again, considered “ghost surgery,” cited in Monturri, and therefore having direct grounds for a gross medical malpractice lawsuit and battery.


The very weakest argument for the Defense relies on Lopez, with respect to the Statute of Limitations and the holding that cites that “it may be unjust . . . to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died and evidence has been lost.” With this in mind, even though Dr. Stuart Young witnessed Dr.Trost swallow ten (10) pills and smelled an alcohol-like substance in his coffee, the time elapsed is that which prevents the drug testing of Dr. Trost and the substance in which he drank, which gave rise to the motivation of Dr. Young to perform the surgery above the ramifications and “legalities” of such a task. Even still, it can be interpreted in Lopez that Jane Doe, a victim of gross medical negligence, like Lopez herself, are free from the medical statute of limitations, even after a four year period of time. Another argument against Jane Doe could be her previously signed consent form to allow Dr. Trost and his assistants and associates to perform medical treatment for certain obstetrical operations, but as stated in Perna, a patient who consents to surgery by one surgeon but is actually operated on by another has an action for medical malpractice as well as battery.


Through the analyzation of Lopez v. Swyer, 62 N.J. 267 (1973), Perna v. Pirozzi, 92, N.J. 446, Samoilov v. Raz, 222 N.J. Super. 108, and Monturi v. Englewood Hospital, 246 N.J. Super. 547, it can be concluded that Jane Doe, irrespective of any factors regarding previously signed consent forms, or the premise that any obstetrical team members, associates or assistants are given permission to perform surgical duties, or whether or not a treating physician operated within their scope of duties to their patients, it is found that in every case mentioned herein, that Jane Doe can absolutely sue for not only medical malpractice, but also for grounds of battery for the reasons stated herein.




  • 15.01 [197]


HYPERLINK Rule 409, sometimes known as the “Good Samaritan” rule, governs the admissibility of evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses.  Such evidence is inadmissible if offered to prove liability for the injury.  However, if offered for some other purpose, the rule does not apply.





  • 5.02 Definitions of Presumptions & Inferences [53-54]


Conclusive presumptions.   Rule 301 governs only rebuttable presumptions.  Conclusive or irrebuttable presumptions are actually substantive rules of law and are therefore beyond the scope of the Rules of Evidence.


Rebuttable presumptions.  A presumption, as that term is used in  Rule 301, is a procedural rule that defines the relationship between two facts – a basic fact and a presumed fact.  If the basic fact is proved, the presumed fact must be accepted as established unless and until rebutted.


Inferences.  A presumption is mandatory.  In contrast, an inference, which also involves a relationship between two facts, is permissive.  For example, the doctrine of res ipsa loquitur involves an inference of negligence.  Establishment of the basic facts permits, but does not compel, a conclusion of negligence.


Res Ipsa Loquitur

According to the duty of care and breach, Res ipsa loquitur (Latin for “the thing speaks for itself”) indubitably (unquestionably? — Quite the redundancy) declares that many constituents my be occasionally inferred, despite a lack of direct proof or even slight evidence of any method that a defendant may possess by which to acquit him- or herself, from that exact derivation of chance or random corollary. In spite of the fact that any modern or otherwise fashionable preparation may differ by jurisdiction, the common law initially claims that the accident must hereby fulfill each of these supporting circumstances:


  1. A “duty” exists for a person to act “reasonably
  2. A “breach” of this duty occurs because a person (or agency, etc.) had acted outside this duty, or “unreasonably”
  3. There was “causation in fact”…the result would not have occurred “but for” the “breach” of this duty; alongside existent proof that
  4. There was actual legally recognizable harm suffered by the plaintiff who did nothing wrong (i.e., no contributory negligence).


A plaintiff must only establish the remaining two elements of negligence, proof of Res Ipsa Loquitur by which this specific disturbance had been the result was the legal cause; namely, proof of physical damage.


According to Negligence


Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:


The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);

The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the          duty owed the patient;

A causal relationship between the health care professional’s deviation from the standard of care and the patient’s injury;

Injury to the patient.


To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.


Negligent Prescription of Medications or Medical Devices


A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer’s instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.


Informed Consent


In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed.


Breach of Contract or Warranty


Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.


Problems of Proof: The “Res Ipsa” Doctrine


Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.


Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as “res ipsa loquitur.” Translated, this Latin phrase means “the thing speaks for itself,” and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone’s negligence.


Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. To invoke this doctrine successfully, a plaintiff has to show that:


1) Evidence of the actual cause of the injury is not obtainable;

2) The injury is not the kind that ordinarily occurs in the absence of negligence by someone;

3) The plaintiff was not responsible for his or her own injury;

4) The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and

5) The injury could not have been caused by any instrumentality other than that over which the defendant had control.

Source: “Proving Fault in Medical Malpractice Cases.” Findlaw Article: “Proving Fault in Medical Malpractice Cases.” TrackBack URL: http://blogs.findlaw.com/cgi-bin/mt/mt-tb.cgi/9275


Is an affidavit of merit applicable when the Plaintiff files an affidavit exception stating the Defendant failed to provide discovery?

Does the plaintiff have sufficient proof for malpractice

Does the Common Knowledge Doctrine find the Plaintiff does not require to procedure an expert?

Does Res Ipsa Loquitor shift the burden of proof from Plaintiff to Defendant?


  1. Is an Affidavit of Merit applicable when the Plaintiff files an affidavit exception stating the Defendant failed to provide discovery? NJ: Court Refuses to Apply Common Knowledge Exception, Dismisses Claim for Failure to Provide Affidavit of Merit

Posted on January 25, 2011 by Krishna Shah


Prosser v. Zeldin, NJ App. Div., December 30, 2010.


Facts: Plaintiff filed suit against his attorney in the underlying divorce action.  Plaintiff alleged he was “coerced into agreeing” to the divorce settlement and that “[d]uring the entire divorce process [he told Zeldin] that there was nothing in [a] public record that served as a legal document to confirm that there was a legal marriage.”


Issue: Was an Affidavit of Merit necessary to proceed with the legal malpractice claim?


Ruling: Yes. The Appellate Division first explained:


A condition precedent to maintaining a claim for legal malpractice against an attorney licensed to practice law in this state is the requirement that a plaintiff file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, which provides in pertinent part:


In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall . . . provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.


The Court then held that  in the context of a divorce proceeding, the fact of a marriage between parties may be established by testimony of the parties or other extrinsic evidence.  Further, knowledge and understanding of the proofs necessary to substantiate allegations in a divorce complaint is not a matter of common knowledge to the average juror.  Accordingly, it affirmed the trial court’s decision to dismiss with prejudice.

Lesson: Err on the side of obtaining an Affidavit of Merit, or risk dismissal with prejudice.


  1. Does the Plaintiff have sufficient proof for malpractice? Yes.


  1. Does the common knowledge doctrine find the Plaintiff does not require to produce an expert?

Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.


In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.


The concept of negligence developed under English Law. Although English Common Law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of “duty.” For example, innkeepers were said to have a duty to protect the safety and security of their guests.


The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the Civil Law of France). Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the “reasonable person,” which provides the standard by which a person’s conduct is judged.

Source: Burton’s Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.


  1. Does Res Ipsa Loquitor shift the burden of proof from Plaintiff to Defendant? Chapter 5: PROOF OF BREACH
  • 5.01 Overview [79-80]

The plaintiff has the burden to prove each element of a negligence cause of action by a preponderance of the evidence. If the plaintiff fails to carry this burden, the case must necessarily be decided for the defendant. It is incumbent upon the plaintiff to put on enough evidence so that a jury can find that more likely than not the defendant failed to act reasonably. The happening of an accident is never enough by itself to permit a jury to find that a defendant has behaved unreasonably.

  • 5.02 Kinds of Evidence [80-81]

There are two key forms of evidence that a plaintiff can use in attempting to establish negligence by the defendant: direct and circumstantial. Direct evidence is evidence that comes from personal knowledge or observation. Circumstantial evidence is proof that requires the drawing of an inference from other facts. So long as the jury can draw a reasonable inference (as opposed to speculate) the circumstantial evidence will be admitted.

  • 5.03 Slip and Fall Cases and the Role of Constructive Notice [81-82]

Where a plaintiff slips and falls on the defendant’s property, the plaintiff must show more than the fact that she fell and was injured. Most courts require the plaintiff to show that the condition on which she slipped existed long enough so that the defendant should have discovered it and should have remedied it. Some jurisdictions permit the plaintiff to try to make a case without proof of actual or constructive notice on the part of the defendant. These courts recognize a “mode of operation” basis for liability by which the plaintiff bases the defendant’s liability on the methods used by the defendant to run the business.

  • 5.04 Res Ipsa Loquitur [82-92]

Res ipsa loquitur, an important form of circumstantial evidence, may be relevant to a plaintiff’s efforts to establish the defendant’s unreasonable conduct. In most negligence cases, the plaintiff specifies what the defendant allegedly did unreasonably. Res ipsa loquitur is most important and has its greatest impact in cases where the plaintiff is unable to make specific allegations about what the defendant did wrong.

The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff.” In order for the plaintiff to have the benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists.

[A] Byrne v. Boadle:

The case of Byrne v. Boadle [2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863)], in which the plaintiff was seriously injured when a barrel of flour fell on him, is credited with adding “res ipsa loquitur” to the legal lexicon.  In Byrne, neither the plaintiff nor any of the witnesses testified as to anything done by the defendant that could have led to the barrel falling. Yet the court allowed the case to proceed because of the nature of the harm-causing event and the defendant’s relationship to it. Since Byrne, courts and commentators have refined the doctrine and its proof requirements.

[B] Probably Negligence

A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes defeat plaintiff’s effort to invoke res ipsa loquitur. The key is that a reasonable jury must be able to find the likely cause was negligence.

[C] Probably the Defendant

A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm.  Initially, courts interpreted the control element narrowly, requiring the plaintiff to that the defendant likely had “exclusive control” over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff to get to a jury on res ipsa loquitur if she can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control.  Further, most jurisdictions no longer require the plaintiff to prove that the she did not contribute to her harm.

[D] The Outer Reaches of Res Ipsa Loquitur )Ybarra v. Spangard [154 P.2d 687 (1944)]

In this controversial case, the California Supreme Court provided a very broad interpretation of res ipsa loquitur, permitting the plaintiff to proceed even when he could show neither who was the responsible party nor what was the harm-causing instrumentality. The court applied res ipsa loquitur as a means of “smoking out” evidence from the defendants, shifting to them the burden of proof. The facts of Ybarra create a compelling case for judicial creativity: an unconscious patient, probable negligence, an unwillingness on the part of anyone to come forward to claim responsibility perhaps due to a tradition of refusal to testify against other medical professionals, and solvent, well-insured defendants.  It is unlikely that the case will be extended much beyond its facts.

[E] The Effect and Value of Res Ipsa Loquitur

In the majority of states, upon proof of res ipsa loquitur by the plaintiff, a jury may elect to infer that the defendant was unreasonable if it so chooses. With res ipsa loquitur, the case gets to a jury and the jury decides whether the defendant was more likely than not at fault. A defendant has not automatically lost on the issue of breach of duty once a jury finds the res ipsa loquitur elements have been proven. The defendant’s evidence of her reasonable conduct may be persuasive enough for a jury to conclude that the defendant was probably not at fault.

[F] The Role of the Defendant’s Superior Knowledge

Although the defendant’s superior knowledge is a compelling justification for the application of res ipsa loquitur, most courts and the Restatement do not require that the defendant have greater access to the facts than the plaintiff for the doctrine to apply. Indeed, most jurisdictions permit a plaintiff to attempt to prove the defendant’s unreasonable conduct with evidence of specific wrongdoing as well as through the use of res ipsa loquitur.



Negligence (noun): Law. the failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care.


Negligence (adjective): Law . pertaining to or involving a civil action for compensation for damages filed by a person who claims to have suffered an injury or loss in an accident caused by another’s negligence: a negligence suit; a large negligence award.

Modern Language Association (MLA):  “negligence.” Dictionary.com Unabridged. Random House, Inc. 09 Feb. 2012. <Dictionary.com http://dictionary.reference.com/browse/negligence


Malpractice (noun):

  1. Failure of a professional, a physician or lawyer, to render proper services through reprehensible ignorance or negligence or through criminal intent, especially when injury or loss follows.
  2. Any improper, negligent practice; misconduct or misuse.


Modern Language Association (MLA):

“Malpractice.” Dictionary.com Unabridged. Random House, Inc. 08 Feb. 2012. <Dictionary.com http://dictionary.reference.com/browse/malpractice>.



Law. battery: Compare assault and battery as an intentional or reckless act that causes another person to expect to be subjected to immediate and unlawful violence. criminal law. See also assault and battery unlawful beating or wounding of a person or mere touching in a hostile or offensive manner.

Modern Language Association (MLA):


“Battery.” Collins English Dictionary – Complete & Unabridged 10th Edition. HarperCollins Publishers. 08 Feb. 2012. <Dictionary.com http://dictionary.reference.com/browse/battery>.


Assault: Law. an unlawful physical attack upon another; an attempt or offer to do violence to another, with or without battery, as by holding a stone or club in a threatening manner.


Modern Language Association (MLA):

“Assault.” Collins English Dictionary – Complete & Unabridged 10th Edition. HarperCollins Publishers. 08 Feb. 2012. <Dictionary.com http://dictionary.reference.com/browse/assault>.


Note: assault is an attempt or threat to do physical harm while battery is unjustified application of force; assault and battery  is carrying out of threatened physical harm or violence. Synonyms: battery, assault, attack, violent attack, beating, onslaught, violence.


Modern Language Association (MLA):

“battery.” Dictionary.com Unabridged. Random House, Inc. 08 Feb. 2012. <Dictionary.com http://dictionary.reference.com/browse/malpractice>.


By demonstrating how the actions as illustrated by these definitions have been carried out, the issues within this trial brief were proven to having been carried out by these legally accountable professionals. Assignment of fault has become perspicuously evident.

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