Medical Malpractice Claim

NEW JERSEY SUPREME COURT DECIDES MEDICAL MALPRACTICE CLAIM

 
WHERE THE DOCTOR FAILED TO MAINTAIN REQUIRED INSURANCE.
By law, New Jersey doctors must maintain at least $1 million per occurrence, and $3 million per policy year, in medical malpractice claim insurance. In the alternative, a doctor can post a letter of credit (a type of bond) for $500,000. The intent of these provisions is to ensure that citizens will receive compensation in the event of a valid medical malpractice claim.

The New Jersey Supreme Court recently ruled on a medical malpractice claim. The court examined three issues related to the insurance requirement. The court considered whether a patient may sue a physician just for not having insurance. The court further examined whether a doctor’s failure to disclose to a patient that the doctor is uninsured violates the doctor’s duty to obtain the patient’s informed consent prior to any treatment. Finally, the court looked at whether a health care facility that grants privileges to a doctor has a duty to make sure that the doctor is insured.

At trial, the jury found that the accused doctor improperly performed a spinal fusion. The doctor did not have proper medical malpractice case insurance. Therefore, it was presumably uncertain whether the jury’s $750,000.00 verdict in favor of the patient could ever be fully paid by the doctor himself. (The Board of Medical Examiners eventually revoked the doctor’s license.)

An appeal followed the jury verdict. The New Jersey Supreme Court ruled that the injured patient could not sue the physician just for being uninsured.  The court further rejected the victim’s attempt to assert a claim that he did not give informed consent to the procedure. (In other words, even if a reasonable patient would not have used the doctor, had the patient known the doctor was uninsured, the victim still could not sue on that basis.)  However, the court allowed the victim to sue the health care facility that permitted the uninsured doctor to operate there.

Two justices dissented from the Court’s opinion. They wrote that the injured patient should also have been allowed to sue for lack of informed consent.

I agree with the dissenting justices. A patient has a right to know beforehand if his doctor is uninsured.

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