PROFESSIONAL MALPRACTICE. Surgery. $______ VERDICT

• Pages: 10-10

Ocean County, NJ

In the underlying facts of this case, the plaintiff,

who had sustained a fire loss, was pursuing a

claim against a $225,000 fire insurance policy.

The plaintiff had cashed a $110,000 check from

the insurance company, but sought the balance

from the carrier. The plaintiff contended that the

defendant attorney negligently failed to make the

claim against the carrier within the one year time

frame provided for under the policy. The plaintiff

sought this balance plus approximately $200,000

in legal fees under Saffer vs. Willoby, 143 NJ 256

(1996).

The plaintiff contended that a letter from the carrier

detailing the reasons for its denial constituted evi-

dence of the defendant’s legal malpractice. The de-

fendant claimed that the letter actually reflected

continuing negotiations between the plaintiff and the

carrier which had the effect of tolling the limitations

period under Peloso v. Hartford insurance co. 56 N.J.

514 (1970).

The defendant further contended that the effect of

tolling the limitations period resulted in no act of mal-

practice as the claim was still viable at the time his

representation terminated. The defendant moved for

summary judgment and, in the alternative, for leave

to file a third party complaint against the plaintiff’s at-

torney who allegedly negligently failed to file the

action.

The court concurred there was no malpractice on the

part of the defendant attorney and granted summary

judgment

REFERENCE

Ambassador vs. Defendant Attorney. Docket no.

OCN-L-925-08; Judge D. David Millard, 10-12.

Attorney for defendant: Daniel S. Jahnsen of Bolan

Jahnsen Dacey in Shrewsbury, NJ.

Surgery

$850,000 VERDICT

Medical Malpractice – Surgery – Negligent

performance of laparoscopic colon surgery –

Alleged stapling of ureter – Several surgical

attempts to open ureter fail and plaintiff

undergoes removal of kidney – Severe pain and

emotional reaction that substantially resolves

within two years.

Camden County, NJ

The plaintiff, in her early 70s, who underwent

laparoscopic colon surgery to treat diverticulitis,

contended that the defendant surgeon negligently

clipped and partially occluded the left ureter with

the surgical staples. The plaintiff contended that

as a result, the ureter became constricted and

ultimately closed all together. This caused

hydronephrosis of the left kidney. After several

attempts to open the ureter, the plaintiff to choose

removal of the left kidney as the alternative to a

series of further surgeries to try to reconstruct a

ureter and/or permanent catheter drainage from

this kidney. The defendant denied that the staples

caused the constriction, contending that the

plaintiffsufferedtheknownriskofscartissue

formation.

The evidence disclosed that during the surgical at-

tempts to reopen the ureter, the physicians could not

reach sufficiently far to visualize whether the ureter

was closed by staples or scar tissue only. The CT-scan

showed staples in the area of the ureter and the de-

fendant maintained that the depiction of staples

near the ureter was not probative because of the two

dimensional nature of the imaging study. The plain-

tiff’s expert urologist maintained that when combining

the CT-scan with the nephrostogram, a near three di-

mensional image could be interpreted and that this

evidence supported the plaintiff’s position.

The plaintiff also maintained that the onset of symp-

toms within several weeks and the relatively quick

blockage of the ureter was not consistent with the de-

fendant’s position of the known risk of the formation of

scar tissue only, arguing that the timing was more

consistent with the plaintiff’s theory. The plaintiff indi-

cated that the pain was severe for many months.

The plaintiff maintained that her reaction to the ex-

tensive pain control therapies made her basically

nonfunctional for several years. The plaintiff con-

tended that her emotional state was unstable and

shewasunabletodoanyofhernormalactivitieswith

no preexisting history of any such problems. The plain-

tiff maintained that the pain medications created de-

pendency and contributed to an emotional collapse

from which she took two years to gradually improve.

The jury found for the plaintiff and awarded $750,000

to the plaintiff and $100,000 to the husband on his

per quod claim.

REFERENCE

Plaintiff’s surgical expert: Jeffrey Freed, MD from

New York, NY. Plaintiff’s urological expert: Simon

Chung, MD from Fairfax, VA. Defendant’s surgical

expert: Paul Starker, MD from Summit, NJ.

Aleksiejczyk vs. Ing. Docket no. CAM-L-4938-09;

Judge Lee Solomon, 09-21-12.

Attorney for plaintiff: Frank D. Allen of Archer &

Greiner, PC in Haddonfield, NJ.

10 VERDICTS BY CATEGORY

Volume 33, Issue 6, November 2012 Subscribe Now