A Medical Malpractice Lawyer Story
Stephen had mild sleep apnea. A dentist fit him with a dental appliance, known as a “positioner,” to wear while sleeping, to reduce the symptoms. Stephen claimed that the dentist assured him that his teeth would not shift. However, his teeth did shift. A later sleep study discerned that the sleep apnea was now severe. Worse still, due to the shifted teeth, there were now “gaps” in Stephen’s teeth. Food got stuck. The dentist subsequently fitted Stephen with new dental appliances to try and re-shift his teeth back in place. But this attempt was not successful. Stephen also claimed that he experienced chronic muscle pain and headaches.
Stephen sued the dentist for dental malpractice. Under New Jersey law, when you sue a doctor or dentist, your medical malpractice lawyer needs to obtain an “Affidavit of Merit” from a doctor or dentist in the same field, as an expert, attesting to the fact that your case is valid. Stephen’s expert, Dr. Samani, was a specialist like Stephen’s dentist. Indeed, Dr. Samani identified himself as a dentist holding a specialty certificate in prosthodontics, who has expertise in the area of sleep apnea.
However, the trial judge noted that Stephen’s dentist is a practicing orthodontist. Even though Stephen’s argument was that the defendant was acting as a dentist,the judge ruled that he was performing his duties as an orthodontist. Therefore, the judge ruled that Dr. Samani lacked the qualifications to issue an opinion against Stephen’s dentist.
However, the law requires that a physician or dentist defending a malpractice claim designate in his court papers”the field of medicine in which he specialized, if any, and whether his treatment … involved that specialty.” Now, Stephen’s dentist never specified in his court papers that he was practicing as an orthodontist when he treated Stephen. Despite this, the trial judge tossed Stephen’s case out of court.
Stephen appealed. The appeals court ruled that,under the facts of this case, the omission by the dentist in his court papers not fatal. Stephen was aware that the dentist was an orthodontist, and in fact thereafter attempted, unsuccessfully, to obtain an opinion from a qualified orthodontist. So the appellate panel affirmed the dismissal of Stephen’s case.
This result is most unfair. The court held Stephen’s medical malpractice lawyer to the letter of the law, and let the other side get away with ignoring the law’s requirements.
If you want to read the appellate court’s opinion, you can do so here:
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