Case Update: October 2003
MEDICAL MALPRACTICE-AFFIDAVIT OF MERIT
In Risko v. Ciocca the Appellate Division held that a medical malpractice plaintiff must file an Affidavit of Merit in a case of res ipsa loquitur or intentional tort unless the “common knowledge doctrine” applies. A few days later Ms. Risko experienced significant swelling in her neck which culminated in hospitalization and emergency surgery to remove an expanding hematoma. While recuperating in the surgical intensive care unit she suffered a right hemispheric stroke. She died within a year.
Mrs. Risko’s husband filed suit, which the trial court dismissed for failure to file an Affidavit of Merit under N.J.S.A. 2A:53A-29.
Mr. Risko appealed, arguing that an Affidavit of Merit should not be required because Mrs. Risko’s injuries and demise could not have occurred but for negligence by Dr. Ciocca. The appellate panel noted that the case did appear to be a res ipsa loquitur case in that the “occurrence itself ordinarily bespeaks negligence.” Nevertheless, concluded the court, under the Affidavit of Merit statute the plaintiff would be required to present expert testimony establishing that the medical community would recognize Mrs. Risko’s injuries and death as indicative of negligence. Because this was not “a common knowledge” case – one in which, for example, a doctor performs surgery on the wrong side of the plaintiff’s body or fails to remove a surgical tool before suturing the patient – an Affidavit of Merit was required. [MORE]