New Jersey Supreme Court Considers Doctor’s Duty To Disclose Lack Of Medical Malpractice Insurance

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The New Jersey Supreme Court Heard Oral Arguments On October 20, 2014 In A Case That May Decide To What Extent A Doctor Must Divulge His Medical Malpractice Insurance Coverage To Patients, Which MedicalMalpracticeLawyers.com Discusses In Today's Blog

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It is unknown when the New Jersey Supreme Court may issue its decision in this important case

MedicalMalpracticeLawyers.com discusses in today's daily blog posting the New Jersey Supreme Court case in which oral arguments were held on October 20, 2014, that may decide if New Jersey physicians are under a duty to disclose to their patients that they do not have medical malpractice insurance coverage for the procedure being performed, and whether a surgical center where the uninsured physician performed the procedure can be held liable for failing to confirm that a physician using its facility has the proper medical malpractice insurance coverage.

According to court documents, the plaintiff had a 20-year history of back pain that extended into his right leg for which he tried chiropractic care that was ineffective. He then consulted with the defendant anesthesiologist in September 2005, who diagnosed the plaintiff with a herniated disc in his lumbar spine, lumbar radiculopathy, and with discogenic back pain. The defendant anesthesiologist, whose medical malpractice insurance coverage expressly excluded coverage for spinal surgery, recommended that the plaintiff undergo surgical lumbar fusion at the L4-L5 and L5-S1 levels to be performed by him that involved implanting two mesh cages screwed into place.

Following the surgery, the plaintiff began experiencing pain in his left leg and had left foot drop. Other surgeons removed the mesh cages and screws that they determined were pinching a nerve in the man’s back. The man experienced improvement in his condition but still had left foot drop that apparently was due to injury to the nerve at the L4-L5 level, according to court documents.

New Jersey law requires that physicians practicing in New Jersey have at least $1 million in medical malpractice insurance coverage per occurrence and $3 million in medical malpractice insurance coverage per policy year. If medical malpractice insurance coverage is not available, New Jersey physicians can satisfy the statutory requirement by providing a $500,000 letter of credit. C.45:9-19.17

Unbeknownst to the plaintiff, the defendant anesthesiologist did not have the required medical malpractice insurance coverage and he did not have a $500,000 letter of credit. The plaintiff’s medical malpractice lawsuit alleged that the defendant anesthesiologist concealed his lack of medical malpractice insurance for the spinal procedure and that such concealment amounted to deceit, misrepresentation, and outrageous conduct by the defendant. The plaintiff also alleged that the defendant anesthesiologist committed a battery because the defendant failed to obtain the informed consent of the plaintiff for the surgical procedure when the defendant anesthesiologist failed to disclose to the plaintiff that he was uninsured for the procedure, according to court documents.

The plaintiff further alleged in court documents that the surgical center where the surgery was performed owed a duty to the plaintiff to make sure that the defendant anesthesiologist had the proper medical malpractice coverage for the procedure he performed at the defendant surgical center. Two lower courts determined that the plaintiff could not sue for deceit or battery.

It is unknown when the New Jersey Supreme Court may issue its decision in this important case.

The New Jersey Supreme Court lists the case as Jarrell v. Kaul, M.D. (072363).

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Jeff E. Messing, President
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