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Zachary
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I have a medical malpractice pro se suit against a Physician

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I have a medical malpractice pro se suit against a Physician that I am about to file as a pro se, in NEW JERSEY civil law div, superior court of NJ. I need the exact NJ statute or NJ code for the "law for Medical Malpractice", "Negligience", "Gross negligence", for which the physician violated and so that the opposing party is made aware of the exact law I claim are violated.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question. Medical malpractice is a common law claim. That means that there is no "code" which completely defines it. It is primarily defined by case law, here is some for your purposes:

A medical malpractice case is a kind of tort action in which the traditional negligence elements are refined to reflect the professional setting of a physician-patient relationship. Thus, a plaintiff in a [**1056] malpractice action must prove the applicable standard of care, Rosenberg v. Cahill, 99 N.J. 318, 492 A.2d 371 (1985); that a deviation has occurred, Clark v. Wichman, 72 N.J. Super. 486, 179 A.2d 38 (App.Div.1962); and that the deviation proximately caused the injury, Germann v. Matriss, 55 N.J. 193, 260 A.2d 825 (1970).

As a general rule, it is the causation element that is the most complex. There are different tests for determining proximate cause. For example, the traditional [***39] "but for" test that applies in most negligence settings "allow[s] recovery only when the injury is one that would not have occurred 'but for' the wrongful act." J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 4.03 (West Group 2002); Conklin v. Hannoch Weisman, 145 N.J. 395, 417, 678 A.2d 1060 (1996); Evers v. Dollinger, 95 N.J. 399, 415, 471 A.2d 405 (1984); Vuocolo [*24] v. Diamond Shamrock Chemicals Co., 240 N.J.Super. 289, 295, 573 A.2d 196 (App.Div.), certif. denied, 122 N.J. 333, 585 A.2d 349 (1990). However, the "but for" test has its limitations in situations where two or more forces operate to bring about a certain result and "any one of them operating alone would be sufficient." Modern Tort Law § 4.03. Indeed, the "but for" test has been characterized as a potentially "insurmountable obstacle" for a plaintiff in a case in which "unrelated factors may have contributed to the same injury." Diane Schmauder, An Analysis of New Jersey's Increased Risk Doctrine, 25 Rutgers L.J. 893, 895 (1994).

HN2Go to the description of this Headnote.In response to the apparent limitation of the "but for" test in concurrent causation cases, [***40] New Jersey, like many jurisdictions, has adopted a modified standard--the substantial factor standard--"limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm--as distinguished from cases in which the deviation alone is the cause of harm." Battenfeld v. Gregory, 247 N.J. Super. 538, 549, 589 A.2d 1059 (App.Div.1991)(citing Scafidi, supra, 119 N.J. at 108-09, 574 A.2d 398). 3

FOOTNOTES

3 See Gardner v. Pawliw, 150 N.J. 359, 375-76, 696 A.2d 599 (1997) (collecting cases from other jurisdictions adopting substantial factor test).


HN3Go to the description of this Headnote.The substantial factor test allows the plaintiff to submit to the jury not whether "but for" defendant's negligence the injury would not have occurred but "whether the defendant's deviation from standard medical practice increased a patient's risk of harm or diminished a patient's chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm." Gardner v. Pawliw, supra, 150 N.J. at 376, 696 A.2d 599. [***41] Once the plaintiff demonstrates that the defendant's negligence actually increased the risk of an injury that later occurs, that conduct is deemed to be a cause "in fact" of the injury and the jury must then determine the proximate cause question: whether the increased risk was a substantial factor in bringing about the harm that occurred. Conduct is a substantial factor if it would
[*25] lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. Under the "substantial factor" test, the defendant's negligence need not be the sole or primary factor producing the injury; it need only be a substantial factor. Thus the test covers the situation where there may be several substantial factors contributing to the same result.

[Modern Tort Law § 4.03, 4-4 (citations and internal quotations omitted).]


The Restatement of Torts § 431 explains that
[t]he word "substantial" is used to denote the fact that the defendant's conduct [**1057] has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called [***42] "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred.

[Restatement § 431 (comment a).]


In other words, HN4Go to the description of this Headnote.merely establishing that a defendant's negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor:
Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor's negligence insignificant and, therefore, to prevent it from being a substantial factor. So too, although no one of the contributing factors may have such a predominant effect, their combined effect may, as it were, so dilute the effects of the actor's negligence as to prevent it from being a substantial factor.

[Restatement § 433 (comment d).]

However, a medical malpractice suit has some statutory issues. The first you must overcome after filing is the Affidavit of Merit as stated in the following NJ statutes:

2A:53A-27 Affidavit of lack of care in action for professional, medical malpractice or negligence; requirements.
2.In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, 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 may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 (C.2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

L.1995,c.139,s.2; amended 2004, c.17, s.8.

2A:53A-28. Affidavit not required; conditions
3. An affidavit shall not be required pursuant to section 2 of this act if the plaintiff provides a sworn statement in lieu of the affidavit setting forth that: the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of the medical records or other records or information requested, has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request.

L.1995,c.139,s.3.

2A:53A-29. Noncompliance deemed failure to state cause of action
4. If the plaintiff fails to provide an affidavit or a statement in lieu thereof, pursuant to section 2 or 3 of this act, it shall be deemed a failure to state a cause of action.

The terms [***8] "gross malpractice" or "gross neglect" are not defined in the statute. For other purposes, HN5Go to the description of this Headnote."gross neglect" has been defined as including "a wanton or reckless disregard of the safety of others," State v. Linarducci, 122 N.J.L. 137 (Sup. Ct. 1939), or "an indifference to consequences," State v. Gooze, 14 N.J. Super. 277, 282 (App. Div. 1951).


Some courts regard [gross negligence] as simply a greater degree of negligence, differing only in quantity. Others think the difference is so great as to be one of kind, and such courts tend to assimilate "gross negligence" to "willful misconduct." "Heedlessness or reckless [*186] misconduct" has been treated as "gross negligence" on the one hand, and as "wanton misconduct" on the other. [2 Harper & James, The Law of Torts, § 16.15 at 952-953 (1956)]


Zachary, Attorney
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Customer: replied 1 year ago.


Hi - I am satisified with the answer. Thank you.

 

Am I correct that if I have an Affidavit of Merit and ALSO I use the appropriate text above... I willl have covered the hurdle of "stating a cause of action against defendant upon which relief may be granted". ?

 

I intend to use this info when I go for a summary judgement!

also

 

Question: Are these ***^&* just left over from your cut and paste

of info... (**XXX)??? see below from your response:

plaintiff in a [**1056] malpractice action

[*186] misconduct

In other words, HN4Go to the description of this Headnote.

 

 

Expert:  Zachary replied 1 year ago.
Stating a cause of action for which relief may be granted will be met if you plead facts which show that:

1. The doctor had a duty to perform as a reasonable doctor would.

2. The doctor did ___________________. This was a breach of the standard of care in that a reasonable doctor would have done ______________________.

3. The doctor's breach of the standard of care proximately caused _______________________.

4. This has resulted in damages.

For summary judgment, should your case get that far, what you will need to pass muster is support from an expert witness who will testify that the doctor who hurt you was negligent. The case law cited above will be useful in both summary judgment and to face a motion to dismiss.
Expert:  Zachary replied 1 year ago.
Also, yes, the bracketed numbers are from the cut and paste from LexisNexis.

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