One Trial Only Over Who Caused Loss in Medical Malpractice Case

April 6, 2021, 2:52 PM

Medical malpractice plaintiffs who lost their suit are only entitled to a single trial over whether the loss was caused by their expert medical witness’s last-minute withdrawal or their attorney’s negligence, a federal court in New Jersey said.

Interests of judicial economy wouldn’t be served by bifurcating or severing the claims raised in the latest lawsuit to emerge from Patricia Grieco’s death following bariatric lap band surgery, the U.S. District Court for the District of New Jersey said.

Grieco underwent lap band surgery in 2007. She experienced pain after the procedure and complained to her surgeon, Hans Schmidt. The doctor told her the pain probably was caused by gas. The patient died a week later after suffering a pulmonary embolism.

Grieco’s estate sued Schmidt for medical malpractice. Its attorney, Joseph Collini, retained National Medical Consultants PC, a litigation expert referral service, to provide an expert witness to help prove the claim.

Lael Forbes was chosen to serve as the estate’s expert medical witness, but she withdrew from the case shortly before jury selection was scheduled to start. The trial court then dismissed the medical malpractice case because the estate wasn’t able to present expert testimony.

The estate sued NMC and Forbes for breach of contract. They, in turn, sued Collini, arguing his negligence in failing to secure another expert witness caused the estate to lose the case and, thus, he is responsible for any damages assessed against them. The estate argued the claims should be severed or at least tried separately.

The court denied the estate’s motion Monday. The issues to be tried aren’t so different as to warrant bifurcation or severance, it said. The bottom line is who’s responsible for the medical malpractice case’s dismissal.

Additionally, the witnesses and other evidence “would almost certainly overlap,” the court said. And it could be costly, time-consuming, and inefficient to require NMC and Forbes to litigate two different suits involving the same issue, it said.

The court also denied NMC’s motion to try the underlying medical malpractice issues separately. The estate claimed nearly $2.3 million in damages from Schmidt.

U.S. Magistrate judge Edward S. Kiel wrote the opinion.

Meyerson & O’Neill represents the estate. Kinney Lisovicz Reilly & Wolff PC represents NMC. Kagen Caspersen & Bogart PLLC and Martin Clearwater & Bell LLP represent Forbes. Tompkins, McGuire, Wachenfeld & Barry LLP represents Schmidt.

The case is Estate of Grieco v. Nat’l Med. Consultants PC, 2021 BL 125182, D.N.J., No. 16-cv-1959, 4/5/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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