Newark Teenager Settles Negligent Security Case for $375,000 During Trial.

On October 9, 2003, at approximately 12:30 p.m., the plaintiff, who was a freshman in high school, was exiting a bathroom when two female students, who were seniors at the school, assaulted her by pinning her against the wall and inappropriately touching and fondling her. The plaintiff alleged that the assault took place in the vicinity of a security desk, and was witnessed by a security guard who failed to act to stop the attack. Additionally, the plaintiff alleged that defendants routinely failed to follow their own security policies and procedures, creating an environment in which individual security guards were largely unaccountable for their work performance.

Six days following the attack the plaintiff had to be hospitalized for anxiety attacks. She began psychiatric care on an outpatient basis following the hospitalization. She returned to school after being released from the hospital approximately one week later. At plaintiff's mother's request, the school assigned the plaintiff an aid to walk her back and forth from classes, and began bussing the plaintiff to and from school because she feared retaliation from her attackers for pressing criminal charges.

The plaintiff's condition throughout the remainder of the 2003-2004 school year ebbed and flowed in conjunction with run-ins with her attackers and alleged teasing about the attack from her peers at school. She remained under psychiatric care for medication monitoring and she received psychological counseling once a week.

Plaintiff alleged that when she returned to the high school for the 2004-2005 school year, the teasing about the October 9, 2003 sexual assault continued. Ultimately, the plaintiff was placed on a home schooling program after leaving the high school in November 2004. Shortly before her home schooling program was set to expire, she attempted suicide by overdosing on Paxil. A month later, she attempted suicide a second time by taking Paxil, this time consuming more pills. The plaintiff was then admitted into an intensive outpatient therapy program and completed her 2004-2005 school year there.

In addition to the negligent security claim, the plaintiffs alleged that the teasing she experienced at the Newark highschool denied her a harassment free school environment in violation of the New Jersey Law Against Discrimination, pursuant to L.W. v. Tom's River Regional Schools Bd. of Educ., 189 N.J. 381(2007).

At the recommendation of her social worker, the plaintiff was transferred into another school district after she was released from her outpatient treatment following her second suicide attempt. Although she remained under the care of a psychiatrist, the plaintiff excelled in her new educational environment. She was elected student body president at her new school and graduated valedictorian of her class.

Lawyer John Ratkowitz (click here for bio) represented the plaintiff. The case settled on the third day of trial.

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After Doctor Fails to Diagnose Endocarditis, 64-Year-Old Resident of Monroe Township, New Jersey Obtains Confidential Medical Malpractice Settlement

The plaintiff began to suffer flu-like symptoms in August 2002. When they persisted, he became concerned that he might be suffering from Lyme disease. Two weeks earlier he was bitten by an insect at a golf outing. When he reported this history to the defendant, his primary care physician, he was placed on prophylactic antibiotics and blood tests were ordered to rule-out the possibility of Lyme disease.

Three years before he began to suffer from flu-like symptoms, the plaintiff was found to have a heart murmur during an Executive Physical performed by another physician. The plaintiff advised the defendant of this diagnosis, and the defendant primary care doctor referred the plaintiff to a cardiologist for an echocardiogram. Investigation revealed that the defendant failed to follow-up on the echocardiogram he ordered, and never ascertained the results of that test and did not know that the plaintiff was suffering from a grade III/IV diastolic murmur and aortic regurgitation, a condition which made the plaintiff susceptible to bacterial endocarditis.

Although the plaintiff's lab studies were available on September 5, 2002, the defendant did not review them until September 16, 2002. Despite the fact that the test results came back negative for Lyme disease, the defendant continued to treat the plaintiff for that condition throughout the remainder of September and into October 2002. Ultimately, the plaintiff suffered a stroke on October 21, 2002. He was admitted to the hospital and found to have vegetations on his heart caused by bacterial endocarditis. The plaintiff underwent intravenous antibiotics to combat the infection. In early 2003 he was admitted to the hospital for aortic valve replacement surgery and repair of the mitral valve.

It was the plaintiffs' contention that accepted standards of medical care required the defendant physician to entertain Bacterial Endocarditis in his differential diagnosis, and that he failed to do so because he did not obtain the results of the echocardiogram he ordered and did not know that the plaintiff was susceptible to this disease. The defendant maintained that accepted standards of medical care did not require him to diagnose the plaintiff with Endocarditis because it is a rare disease.

Attorney John Ratkowitz represented the plaintiffs. The case was assigned to trial. Jury selection and opening statements took place. The plaintiffs called the defendant doctor as their first witness. The case settled prior to the conclusion of his testimony.

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$2.6 Million Jury Verdict on Behalf of Man Requiring Lumbar Disc Surgery Following Automobile Accident.

On July 18, 2001, the plaintiff was forced into a concrete divider while traveling eastbound on Route 46 in Totowa, New Jersey, when an unidentified driver attempted to pass him in the left-hand shoulder of the road. The plaintiff sustained herniated discs at the L4-5 and L5-S1 levels of the spine, superimposed on pre-existing degenerative disc disease. He also sustained a cervical disc herniation, and a re-tear of the right rotator cuff, which had been the subject of three surgeries prior to the accident.

The plaintiff underwent intermittent conservative care for his injuries over a period of two years, culminating in a series of epidural cortisone injections into the lumbar spine. Finally, on July 23, 2003, he underwent an intradiscal electrotheramal therapy (IDET) procedure. Ultimately, after some measure of improvement, the plaintiff's condition returned back to baseline.

The case went through Uninsured Motorist Arbitration and an award of $92,5000 was entered on the $100,000 available policy limits. The insurance carrier's arbitrator disagreed on the amount of damages. On April 15, 2001, the insurance company advised that it was rejecting the arbitration award. Instead, they voluntarily paid $50,000 to the plaintiff following the arbitration hearing. Just prior to trial, the carrier offered an additional $25,000 to settle the case, bringing their offer up to $75,000 of the $100,000 available policy limits. The plaintiffs declined this offer.

John Ratkowitz tried the case before a jury in Newark, New Jersey, for three days.

Estate Resolves Medical Malpractice Case After Failure to Diagnose Breast Cancer Causes Death

The plaintiff had been under the care of the defendant physician for two years when, on January 4, 2001, she reported to his office complaining of a lump in her breast. Additionally, since she was a physician, she reported that she had also examined her own lymph nodes, and could palpate the lymph nodes in her left axilla. The defendant OBGYN advised her that these findings were due to the fact that she had recently lost weight, and he advised her to have her next mammography exam as scheduled and report back following the study.

On April 4, 2001, the plaintiff reported back to the defendant indicating that she still felt the lump in her breast, and still felt palpable lymph nodes. This time, the defendant doctor felt the lump, but indicated that the lump was so small that the plaintiff had nothing to worry about. Having been twice told she was over-reacting, the plaintiff followed her doctor's advice.

The plaintiff returned to the doctor five months later, advising the defendant that she was having pain in the area of her nipple for the last week, and she felt the lump and it appeared to have grown. At this point, the OBGYN referred the plaintiff for an ultrasound, which was read as showing a hypoechoic irregular solid nodule corresponding to palpable abnormality in the breast. The findings were said to be suspicious for malignancy and surgical excision was recommended.

During a workup for postoperative chemotherapy, a CT scan revealed that the plaintiff had multiple liver metastasises. Tragically, the plaintiff was diagnosed with terminal metastatic breast cancer. She passed away during the course of the litigation.

Attorneys Amos Gern and John Ratkowitz resolved the case after discovery concluded.

Paper Discovery in Medical Malpractice Cases

Excerpted from: "Medical Malpractice: Making the Most of Pretrial Discovery," New Jersey Law Journal, August 8, 2005, by Amos Gern & John Ratkowitz.


To obtain a comprehensive understanding of your client's medical case, it is essential that you create a narrative time line of your client's treatment records. By organizing relevant physician notes, orders, consults, nurses findings, and the results of diagnostic and laboratory tests in chronological order before filing the suit, you will get a far better understanding of your client's course of treatment than by simply reviewing a hospital or other medical record, in the fortuitous manner it is presented.

Attorneys must insist on timely service of defendant's interrogatory answers. It is common practice to receive incomplete answers from the defendant to uniform interrogatories mandated by the court rules. A demand for more specific answers to interrogatories will invariably be required, followed by a formal motion addressed to the court. Even the most diligent attorney will find it takes a minimum of four to six months before responsive answers are provided.

It is common for defense counsel to interpose objections to uniform interrogatory questions required by the court rules, to assert objections such as the need for clarification of the interrogatory, an assertion that the interrogatory calls for a legal conclusion, or a claim that the interrogatory is unduly broad and overly burdensome. None of these objections have any merit in view of the fact that R. 4:17-1(b)4 requires that "every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered."

Uniform Interrogatory Form C(3), question 1, seeks the identity of every person in the vicinity of the alleged occurrence. Defense counsel routinely attempts to avoid giving an answer to this question by taking the position that it is unclear what the "alleged occurrence" is. While such an answer is improper under any circumstances, it can be even further avoided by plaintiff's counsel providing detailed allegations in response to uniform interrogatory form A(l), question number 7, which seeks plaintiff's contentions as to the negligence of the defendants.

Uniform Interrogatory Form C(3), questions 2 and 3, seek detailed narratives from the defendant physician regarding the care provided to the plaintiff. Interrogatory 9 seeks a description of defendant's informed consent interview, and interrogatory 15 requires an explanation from the physician defendant as to why consultations were ordered and requests the reports received by the defendant from such consults. Since it is common for physicians to recall details about the care provided to a plaintiff that goes well beyond what has been written in the defendant's medical chart, or to claim that what has been written in the medical chart is merely a summary, plaintiff's counsel must reject a defense response which generically references the medical records. R. 4:17-4(a) requires interrogatory answers to be furnished "separately, fully and responsively." Id. It is the defendant's obligation to collect information and supply it in the form required by the rule, and defense counsel should not be permitted to allow their clients to cleverly avoid the rule. Seiden v. Allen, 135 N.J. Super. 253, 256 (Ch. Div. 1975).

Uniform Interrogatory Form C(3), question 4 requires the defendant to attach a complete curriculum vitae. In the first instance, having this information will avoid wasting valuable deposition time and costs to learn the details of a defendant's professional background and education. Moreover, and more importantly, the professional boards and societies to which a defendant belongs often publish standards and practice publications that will serve to corroborate your expert's opinions about such standards and eliminate much of the debate on these issues at trial.

Uniform Interrogatory number 6 seeks complete information about past malpractice suits. Since R. 4:17-4 requires that responses be furnished by supplying all information available to the party, the party's agents, employees and attorneys, a defendant may not simply avoid providing a responsive answer by claiming a failure to have such details committed to memory. This information is clearly available to the doctor and his counsel.  Uniform Interrogatory number 11 seeks information about peer review materials. The ancillary information concerning peer review meetings mandated by this interrogatory is not subject to a claim of privilege. Whether a particular document resulting from a peer review investigation is privileged depends on its substance and the availability of the information contained in the document from other sources. See Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). Defendants should not be permitted to block all inquiry into this area of evidence by asserting a blanket objection to a question which has been mandated by the court rules.

Demands for documents pursuant to R. 4:18-1 serve as an excellent tool to buttress your expert's position regarding the standard of care from which the defendant deviated. If a defendant physician is employed by a group or organization, employment contracts or shareholder agreements executed by members of such organizations often require the physician to practice medicine in accordance with the standards of a particular professional society. Such contracts and agreements may also delineate the defendant's responsibilities with respect to rounding, being on call, supervising physician assistants and residents, and interacting with other members of the group. While some of this information may be confidential in nature, case law clearly establishes that the information must be disclosed if relevant. Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co. of Maryland, 81 N.J. Super. 529 (Law Div. 1963); Gureghian v. Hackensack Hospital, 109 N.J. Super. 143, 148 (Law Div. 1970).

It is also not uncommon for physician groups to generate triage protocols regarding  communications between patients and the office relevant to potential emergencies by telephone or otherwise. If a hospital is a defendant in a case, resident codes of conduct, resident/hospital employment contracts, medical staff bylaws, medical staff rules and regulations, coding booklets and hospital protocols, are all extremely useful in supporting plaintiff's expert testimony on applicable standards. These materials become extremely useful where there are multiple defendants in the case, all of whom are disclaiming responsibility for patient monitoring, yet, nevertheless, fail to implicate one another.

$210,000 Recovery for Woman Sustaining Trimalleolar Fracture of the Left Ankle After Fall.

On September 8, 2001, the plaintiff stood up to leave an outdoor screen house that was on the property of the defendants. After taking a step or two she immediately tripped and fell to the ground. She suffered a comminuted trimalleolar fracture of the left ankle with extensive ligament damage. Closed reduction was attempted on September 8, 2001, but failed. Consequently, open reduction surgery was performed.

Following her discharge from Raritan Bay Medical Center, the plaintiff remained under the care of her orthopedic surgeon. Because of the severity of her injuries, the plaintiff was unable to begin physical therapy until January 2002. Even then, she remained in an air cast splint and still had to utilize crutches to ambulate. The plaintiff was only able to begin weaning herself off of crutches in February 2002, 5 months after the accident. When she did this, she suffered periodic setbacks in her progress. She remained in physical therapy until May 2002, 9 months following the accident.

The plaintiff last saw her orthopedist more than a year and a half after the accident. At that time, she was still complaining of stiffness and loss of range of motion in her left foot and ankle. On examination, loss of motion and crepitus was noted in the left ankle. The plaintiff was advised that part of the injury to her left ankle was permanent in nature and would simply not heal. Also, the plaintiff was advised that she would need to have the hardware that was placed in her left ankle during the surgery removed in a second surgery.

The case went through Superior Court Mandatory Non-Binding Arbitration and the plaintiff received an award of $100,000. Attorney John Ratkowitz filed a trial de novo and agreed to voluntary binding arbitration and within weeks was able to secure an award of $210,000.

Heart Surgery Patient Who Lost Vision Recovers Confidential Malpractice Settlement

It was the contention of the plaintiff that he was inadequately monitored following heart surgery. Specifically, the plaintiff maintained that because his operating heart surgeon left town shortly after the surgery, there was no designated attending physician monitoring his care postoperatively. As a result, when the plaintiff's hemoglobin and hematocrit levels dropped steadily, this fact went unnoticed, resulting in significant anemia. Simultaneously, the plaintiff developed congestive heart failure which further compromised his oxygen carrying capacity.

Six days following his bypass surgery, the plaintiff was walking in the hallway at the hospital, as he was encouraged to do this by medical staff. At the time he was markedly anemic with reduction in oxygen carrying capacity for the supply of blood to his body tissues, he had a low mean arterial pressure during the day, and had also received a dose of a potent beta adrenergic blocking agent. He had atelectasis of his left lower lobe and auscultatory findings of rhonchi. As he was walking in the corridor, he noted a decrease in his vision which he described as cloudiness in his eyes. He was dizzy and had a headache. He complained of blurred vision and black spots in front of his eyes, which progressed to the point of almost complete blindness.

It was the position of the plaintiff's expert that the group system used by the defendants to provide postoperative care to the plaintiff resulted in a complete lack of continuity of care, a lack of thorough knowledge of the patient, the untimely acquisition of results of laboratory studies and the failure to follow up on postoperative orders, and that all of these things were below accepted standards of medical care and contributed to the plaintiff's visual deficit.

The case involved multiple medical experts from five different states. Attorneys Amos Gern and John Ratkowitz were able to settle the case after the depositions of the experts concluded.