Appeals Court Reinstates Gastric Sleeve Claim

medical malpractice claim

A New Jersey appeals court has reinstated a medical malpractice claim involving allegations of negligence in the performance of “gastric sleeve” surgery. The lawsuit was previously dismissed because the injured party had not filed an affidavit with the court from a licensed and approved specialist stating that the standard of care used in the surgery was substandard. According to the appeals court, the plaintiff had made a good faith effort to comply and should be given the opportunity to meet the standard.

Under New Jersey’s Affidavit of Merit law, a person alleging medical malpractice must submit a sworn statement with the court, from a licensed medical specialist, that alleges that the doctor or hospital failed to meet or follow the proper standard of care. In the case before the court, the plaintiff had secured a person to prepare that affidavit, but the court ruled that the person in question lacked the requisite qualifications to submit the affidavit. The proposed witness had performed more than 75 similar surgeries, but had been an administrator for 10 years and had not performed any surgery during that period. The court then dismissed the complaint.

The appeals court, however, found that the injured party had made a reasonable effort to find a suitable replacement to prepare and submit the affidavit. The court also concluded that justice would better be served if the plaintiff was allowed to submit the affidavit and the court made a ruling on the merits, rather than on a technicality.

Contact the Law Offices of Mallon & Tranger

To learn how we can help you if you have been injured in the workplace, contact us online or call us at 732-410-6094 (toll free at 877-320-0692). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.

How a Personal Injury Action Moves Forward – Part One

Personal injury law book on a table.

If you have been hurt in an accident caused by the carelessness, negligence or wrongdoing of another person, you may be considering filing a lawsuit. What will the process look like? What steps will you have to take before you can expect to actually receive compensation for your losses? Here’s an overview of the legal process for personal injury claims.

Hire an Attorney and File Your Claim

The first thing you want to do is hire experienced legal counsel. The sooner you retain legal counsel, the sooner your lawyer can take steps to gather and preserve evidence. The longer you wait, the greater the risk that witnesses will move, disappear, die or forget what they saw. In addition, you must file any legal action within a very specific period of time—generally two years from the date of the accident, but it could be as little as 90 days, depending on who the defendant is.

The Discovery Phase

Once you’ve filed your lawsuit and the defendant has answered the complaint, the court will typically schedule a meeting of the attorneys. It’s not unusual for the judge to try to get a sense of whether the case can settle and the judge may actually request that the parties make a good faith effort to settle the case. At the same time, though, the court usually establishes a “discovery” schedule. Discovery is the legal term for the gathering of evidence, whether through depositions, production of documents, or answers to written questions, known as “interrogatories.” The court will generally set a date by which all discovery must be completed, and will also set forth any necessary rules related to discovery.

Contact Mallon & Tranger

We offer a free initial consultation to anyone in New Jersey who has been a victim of a personal injury. For a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.

When You Are Injured by a Government Employee or Entity

Woman with wrist pain

If you have been hurt in an accident caused by the carelessness or negligence of another person, you have a right to bring a personal injury action to recover for any losses you’ve experienced. In most instances, it’s a matter of identifying who caused the accident and filing a lawsuit against that person. However, when the wrongdoer was a government worker or the harm was caused by a government agency or entity, there are specific steps you must take to protect your rights.

In New Jersey, a personal injury action where the defendant is a government employee or entity must be filed under the New Jersey Tort Claims Act (TCA). In general, the TCA provides for immunity from civil litigation for certain “sovereign” or governmental personnel or entities. This is a carryover of longstanding rules protecting governmental bodies from litigation.

There are, however, exceptions to the “sovereign immunity” provisions of the Tort Claims Act. Specifically, the TCA allows a governmental organization or entity to be civilly liable for the actions of employees “within the scope of employment in the same manner and to the same extent as a private individual under like circumstances.” So, as a general rule, if you could bring a lawsuit against a private individual who engaged in the same conduct, you can also sue a governmental body or employee.

The most important thing to understand, however, about filing under the TCA is that you must do so within 90 days of the accident. Once your claim is filed, the state has a similar period of time (90 days) to accept or reject your petition.

Contact the Attorneys at Mallon & Tranger

We offer a free initial consultation to anyone who has suffered any type of loss or injury as a result of the carelessness or negligence of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.

Class Action against Progressive Reinstated

Progressive Reinstated

A class action against insurance giant Progressive, alleging that the company sold automobile policies to Medicaid and Medicare beneficiaries who were not eligible to purchase those products, has been reinstated by a New Jersey appeals court. The ruling, handed down on Monday, March 6, 2017, vacated the prior dismissal of the class action. The case was sent back to the trial court.

The original lawsuit was filed by Elizabeth Lopez-Negron after Progressive rejected her efforts to recover the costs of medical treatment after a motor vehicle accident in Philadelphia in 2010. Lopez-Negron alleged that Progressive had sold her what is known as a “health-first” automobile policy, which allows a motorist to designate a health insurance provider as the primary payer for any personal injury, including injuries sustained in a car accident. According to Lopez-Negron’s lawsuit, she and many others to whom Progressive sold the “health-first” policies were not eligible for that type of coverage because their primary health insurance was through Medicaid or Medicare—federal law requires that private insurers have primary responsibility, if the injured person has private insurance coverage.

Lopez-Negron filed two separate lawsuits—one in federal court alleging violation of federal statute, and the other in state court in New Jersey. The New Jersey state court dismissed the claim before trial, finding that Progressive’s online application for insurance provided adequate information to allow an applicant to determine if they qualified for “health-first” coverage. The federal court, however, denied the motion to dismiss, finding that Progressive had at least three different opportunities to avoid selling health-first policies to unqualified buyers.

Following the precedent set by the federal court, the state court vacated the dismissal and ordered that the case be returned to trial, where issues of fraud, unjust enrichment and breach of contract can be addressed.

Contact the Law Offices of Mallon & Tranger

To learn how we can help you if you have been injured, contact us online or call us at 732-410-6094 (toll free at 877-320-0692). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.

City of Millville Named Defendant in Police Abuse Case

Police Abuse Case

The city of Millville, New Jersey has been named as a defendant in a lawsuit filed last month in Cumberland County Superior Court. The legal action seeks unspecified damages based on allegations of improper conduct by New Jersey State Police officers in February, 2015. Sources say the New Jersey State Police have not been named as defendants, but may still be.

According to the documents filed, a 45-year-old Millville man alleges that he suffered personal injury during a search at his residence. The man, who lived on Brooks near 19 East McNeal Street at the time of the incident, says that city and state police came to his residence on February 6,2015, with a search warrant, seeking evidence related to a drug investigation. As a result of the search, officers found a quantity of marijuana and some drug paraphernalia.

The Millville man has not denied that he had illegal contraband, but contends that, when police arrived and arrested him, they restrained him with plastic or wire bands, instead of handcuffs, and left him that way for approximately four hours. He further claims that he was subjected to unnecessary and excessive force, and that the plastic or wire bands caused injury to his hands and wrists, and aggravated a prior condition, requiring medical treatment.

Attorneys say it remains unclear whether any state police officers placed restraints on the plaintiff, explaining why state police had not been named as defendants.

Contact Mallon & Tranger

We offer a free initial consultation to anyone in New Jersey who has been a victim of a personal injury. For a meeting, contact us online or call us at 732-410-6094 (toll free at 8773200692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.

Court Finds that Unemployment Benefits Don’t Offset Back Pay Award

Approved

The New Jersey Appellate Division has reinstated a jury award for back pay in a claim based on discrimination and retaliation under the New Jersey Law Against Discrimination. The court concluded that a lower court had improperly reduced the jury award by offsetting unemployment benefits against it. The case was sent back to the lower court with the explicit ruling that no deduction or offset was allowed.

The plaintiff in the case had filed a lawsuit alleging discrimination based on a disability, seeking lost wages, as well as damages for emotional distress. The court rejected the claim for emotional injury, but the jury awarded him $83,000 for back pay. The judge subsequently reduced the damage award by $14,000, offsetting the award by 50% of the unemployment benefits the plaintiff had received. The plaintiff appealed, arguing that the offset was inappropriate, and the defendant appealed, contending that the damage award should have been reduced by the full amount of the unemployment benefits.

The issue the court addressed was what is known as the “collateral source” rule, which prohibits duplicate recovery from different sources in personal injury or wrongful death actions. The purpose of the collateral source rule is to prevent a party from recovering the same loss from a number of parties. In finding that the collateral source rule did not apply to lawsuits based on discrimination, the court ruled that offsetting a back pay award by amounts received in unemployment compensation was contrary to the intent of the Law Against Discrimination, and inappropriately shifted the benefit of unemployment compensation from the wronged employee to the wrongdoer—the employer who engaged in discrimination.

Contact the Attorneys at Mallon & Tranger

We offer a free initial consultation to anyone who has suffered any type of loss or injury as a result of the carelessness or negligence of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.

Happy Independence Day

Happy Independence Day

Philadelphia Police Inspector Accused of Sexual Harassment

assult

Two female officers in the Philadelphia Police Department have alleged that Chief Inspector Carl Holmes sexually harassed them.

Michele Vandegrift, a detective who has been on the force for 13 years, filed a lawsuit last summer, alleging that Holmes had made numerous sexual comments to her, and had actually sexually assaulted her in 2007. Vandegrift had filed a complaint with the EEOC in 2014, seeking a right to sue letter.

In her complaint, Vandegrift also alleged that she was the victim of retaliation by the city of Philadelphia, claiming that she was subjected to a number of acts that constituted punishment:

  • She was not assigned any cases that would qualify her for overtime
  • She was reassigned to “Southwest Detectives,” a unit that most officers regard as punishment
  • She was reprimanded for mocking a colleague on Facebook

Vandegrift also contends that, once she was transferred to Southwest, her former supervisors told personnel in the Southwest to “watch what they say around her,” creating a climate where her colleagues were encouraged not to trust her.

Vandegrift is not the first female officer to accuse Holmes of sexual assault. Officer Christina Hayburn told investigators in 2008 that the Chief Inspector had sexually assaulted her in his police car and two witnesses corroborated Hayburn’s allegations. Holmes was demoted by then-commissioner Charles Ramsey, but challenged the demotion and was reinstated. He became Chief Inspector in 2012.

Contact the Law Offices of Mallon & Tranger

To learn how we can help you if you have been the victim of workplace discrimination or harassment, contact us online or call us at 732-410-6094 (toll free at 877-320-0692). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.

Filing a Workers’ Compensation Claim in New Jersey

compensation

If you have been hurt on the job in New Jersey, your first course of action will typically be to file an application for workers’ compensation benefits. It’s part of what is known as the “grand bargain,” established by the state legislature to benefit both workers and employers. As an injured worker, you can have access to benefits much sooner and without much of the complexity that comes with a personal injury lawsuit. As an employer, you can avoid large judgments by sympathetic juries, as the benefits payable are limited by law.

Before you can expect to obtain compensation for a work-related injury in New Jersey, though, you have to qualify for benefits. To do so, you must meet two criteria—you must have been working at the time, and you must have been injured during the course of your employment. Accordingly, even if you were working off the books, you may still be able to show that you meet the tests, and still be entitled to workers’ compensation benefits.

The first thing you’ll want to do, though, is get the medical attention you need. As a general rule, any emergency treatment does not require authorization from your employer. However, if doctors want to perform any “non-emergency” procedure, you must notify your employer and obtain permission for the treatment, or it may not be covered.

In any instance, you must notify your employer as soon as practicable and generally within 30 days of the actual injury, or of the discovery of the injury, if it was not apparent (or if it was cumulative or related to an occupational illness). Your employer will likely require that you visit a physician chosen by the company (or the workers’ compensation insurance provider). You may still visit your own doctor.

Once you notify your employer of your injury, your employer will notify the workers’ compensation insurance carrier. Based the doctor’s report and other evidence, the insurer will either approve or reject your claim. You have the right to appeal a denial to the New Jersey Division of Workers’ Compensation.

Contact the Law Offices of Mallon & Tranger

To learn how we can help you if you have been injured in the workplace, contact us online or call us at 732-410-6094 (toll free at 877-320-0692). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.

The Most Common Causes of Construction Site Injuries

construction-accident

If you work on a residential or commercial construction site, you know it’s one of the most dangerous ways to make a living. Industry statistics show that nearly five percent of all construction workers suffer a non-fatal injury every year. Though owners and general contractors know how dangerous a construction site can be, the profit motive can often lead to shortcuts and unsafe behavior. Here are the most common reasons construction workers get hurt on the job.

Falling Objects

Many workers on lower levels are hurt when building materials, tools, debris or other items fall from upper levels. Often, this could be avoided if proper barriers were erected on upper floors.

Falls from Heights

Perhaps the most common cause of high-rise residential and commercial construction site injuries are falls from upper levels, from ladders or scaffolding, from cranes or buckets, and from construction elevators. Research shows that nearly a third of all construction site injuries come when workers fall from significant heights. Often, owners and contractors have failed to erect any type of fence or barrier, or have improperly maintained or installed the guard rails.

Dangerous or Defective Products

Complex power tools are prevalent on construction sites, and often break down or malfunction, causing injury.

Slips, Trips and Falls

One of the biggest problems at most construction sites is the accumulation of worksite debris, from tools to building materials to trash. Unfortunately, too many workers are hurt tripping over or slipping on these materials.

Contact the Personal Injury Attorneys at Mallon & Tranger

We offer a free initial consultation to anyone who has suffered a needless injury. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.

Our Office Locations

Freehold

86 Court Street,
Freehold NJ 07728

Telephone: 732-780-0230
Fax: 732-780-5002

Toms River

250 Washington St
Toms River NJ 08753

Telephone: 732-780-0230
Fax: 732-780-5002

Point Pleasant

3247 Route 88
Point Pleasant NJ 08742

Telephone: 732-780-0230
Fax: 732-780-5002