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Plaintiff In Medical Malpractice Claim Appeals A Dismissal For Inability To Retain Medical Expert

A medical malpractice claim in New Jersey was reinstated by an appeals court despite the plaintiff’s inability to obtain the opinion of a medical expert from a qualifying physician necessary to satisfy state requirements. Plaintiffs must present an affidavit explaining how the defendant failed in maintaining acceptable standards of care within 60 days, or the matter may be dismissed. 

Two appellate judges reversed the prior dismissal of the action because the plaintiff demonstrated a “good faith” effort to secure an expert. The court explained that based on the Medical Care Access & Patients First Act (PFA), cases of malpractice may be continued when an honest effort to find an expert is conducted. The problem here is the defendant is classified as a general surgeon, and most general surgeons do not perform colonoscopies. In addition, the provider does not have a formal sub-specialty. The vast majority of the physicians who perform colonoscopy procedures are gastroenterologists.

Kim Glucker, the plaintiff, visited Dr. Robert Barbalinardo for a colonoscopy procedure that had a complication causing her to incur a ruptured spleen. Glucker wound up in the Mountainside Hospital’s emergency department complaining of pain in the abdominal region, which led to the discovery of the ruptured spleen. A surgical procedure to correct the problem was not successful, which led to the spleen needing to be removed. 

After spending some days in intensive care, a malpractice claim was filed against Barbalinardo and Montclair Surgical Associates. Dr. Peter Sarnelle, a general surgeon, was able to provide an affidavit of merit and Dr. Maxwell Chait was able to potentially serve as an expert witness. Sarnelle later became ill and was unable to participate and a judge found that Chait did not qualify under the requirements of the law.

Over the span of one year, Glucker’s lawyer claims to have reached out to over 100 physicians without any success. The trial court ordered that the suit be dismissed, despite their attempts at establishing a “good-faith” waiver. The attorney entered a supplement which detailed the efforts made for the court to review which included contacting bar associations, asking for referrals, and usage of expert search firms and recruiters.

The Appellate Court cited a 2010 case of Ryan v. Renny, which explained that plaintiffs were entitled to a “safety valve” when they had made good efforts to obtain a qualified expert. They stated the fact that the waiver exists as evidence of the intentions of the Legislature; they did not expect the outcome of a malpractice case to be decided exclusively on locating an expert within the same specialty. 

The statute says that courts have the ability to waive the requirement for an expert within the same specialty in a response to a motion, after a good faith effort was conducted. The judges requested the plaintiff locate an expert with similar education, training, and knowledge that would be available for the case. Counsel for the plaintiff was relieved that the case was reinstated, which was in accordance with the law.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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