Wrongful Death Cases Revisited: Not Every Mistake is Fatal

Wrongful Death Cases Revisited: Not Every Mistake is Fatal.

By Jon Lomurro and Abbott Brown

223 N.J.L.J. 2171 (July 24, 2017)
We read with great interest the recent article entitled “The Deadly Mistake in 'Wrongful Death' Litigation," New Jersey Law Journal, May 22, 2017. The author suggests that only a General Administrator can pursue a survival claim, and that the failure to have the plaintiff appointed as the general administrator is “fatal” to such claims. “While letters of administration ad prosequendum provide plaintiffs standing to pursue wrongful death claims—without letters of general administration—they do not have standing to pursue survival claims.” Although the author cites a dozen or so cases and statutes, the author does not cite any of the three cases which have actually discussed this precise issue and held that the ‘technical mistake” of not obtaining both general letters of administration and letters of administration ad prosequendum can be cured at any stage of the litigation.

The first case in this trilogy is Wilson v. Dairymen's League Co-Op Ass'n., Inc., 105 N.J.L 188 (1928), where the plaintiff filed a wrongful death suit as General Administrator of the estate of her late husband. The plaintiff was not appointed as the administratrix ad prosequendum for more than two years. The trial court permitted the plaintiff to amend the complaint to name her as the administratrix ad prosequendum, but then dismissed the case based upon the statute of limitations. In reviewing the case, the New Jersey Supreme Court first explained that then, as now, “The aim of courts and legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried.” Id. at 190. The Supreme Court then reversed and remanded for trial, holding that “there was no error in the allowance of the amendment to substitute Mrs. Wilson as administratrix ad prosequendum as the plaintiff in the action. Such substitution affected no substantial right of the defendant below. It was the correction of a technical mistake.” Id. at 191-192.

Thereafter, in Cammarata v. Public Service Coordinated Transport, 124 N.J.L. 38 (1940), the Court of Errors and Appeals permitted a case to proceed to trial even though the administrator ad prosequendum was not appointed until the morning of trial. The trial court dismissed the action on the basis that plaintiff lacked standing to bring the wrongful death action. The Court of Errors and Appeals, observing that the delay in issuance of letters of administration here did not result in any harm or prejudice to the defendant, reversed and remanded for trial, citing Wilson supra. The Court acknowledged that "It is undeniable, viewed technically, the omission to proceed with the application for the letters in July, 1936, and the institution of an action in which it was averred that such letters had been issued, were flagrantly irregular." Id. at 39. However, the Court reversed and remanded anyway, explaining "But from a meritorious point of view, the delay worked no harm, legal or otherwise, to the defendant." Id. at 40-41. The Court observed that the defendant had timely notice of the claim, and “indeed seems to have defended on the merits until the trial - and under the circumstances the error was curable by the issue of the letters offered in evidence and rejected.”

More recent, but still long ago, is the third case in the trilogy, In Re Strong, 65 N.J. Super. 576 (App. Div. 1961). In this tragic case, the plaintiff's pregnant wife died in an automobile accident. “A few minutes after her death she was delivered by Caesarian section of a six to seven-month foetus, born dead. Mrs. Strong left her surviving a husband, James J. Strong, and a 14-month-old infant daughter.” The plaintiff applied to the Surrogate to be appointed the administrator ad prosequendum for the estates of his wife and baby. However, the Surrogate only issued letters for the wife's estate. The Surrogate refused to issue letters for the estate of the baby on the grounds that the fetus “was not proved viable.”

The plaintiff instituted a wrongful death action for the wife and baby, but the trial court held that the husband could not proceed with the wrongful death action on behalf of the baby because he was not appointed as administrator ad prosequendum and thus lacked standing to bring such an action. The Appellate Division reversed and remanded the case, holding that “the issuance of letters will be effective nunc pro tunc, even though issued after the actual institution of this action.”

Finally, it should be noted that many County Surrogates will only issue general letters of administration where there are presently assets or funds which must be distributed to close out an estate. The issuance of general letters of administration requires the posting of a bond. This requires the Surrogate to determine the value of the asset, which is the value of the pain and suffering of the decedent, to be recovered in a possible medical malpractice case that has not even been filed. In such cases, a general administrator is actually only needed when the case settles, or a judgment is collected, and the administrator ad prosequendum turns over the recovery to the general administrator.

After reviewing these cases, one must conclude that the author’s suggestion that such a technical error should lead to a dismissal with prejudice is perhaps overly draconian. We sincerely hope that the article will not lead to a large number of motions to dismiss cases with prejudice, and that we can focus our efforts on resolving these most serious of all cases on the merits.

Mr. Brown is a partner at the Freehold N.J. firm of Lomurro, Munson, Comer, Brown and Schottland. He is the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018).

Mr. Lomurro is also partner at Lomurro, Munson, Comer, Brown and Schottland. He is also the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018), and author of Digital Litigation: Litigation Technology for the Modern Practitioner (ICLE 2014); and TRY IT: With Friends: "A Trial Guide for New Jersey Lawyers" (ICLE 2010), and numerous articles about related topics.

Physician Assistant Malpractice

by: Abbott Brown and Jonathan Lomurro

223 N.J.L.J. (2017)
Hospitals, clinics and medical practices are increasingly employing physician assistants and other so-called 'mid-level' providers or “practice extenders.” According to the National Commission of Certification of Physician Assistants, the number of certified PAs has increased by 35.86% from 2010 to 2015, when there were 108,717 licensed PAs nationally. In response to this trend, the New Jersey "Physician Assistant Licensing Act," was substantially amended in 2016 to define the scope and limitations of the practice of a physician assistant. See N.J.S.A. 45:9-27.10 et seq. Every healthcare lawyer should be familiar with the Act, particularly malpractice lawyers.

The Physician Assistant Licensing Act

The Act requires that one must graduate from an accredited program and pass the national certifying examination administered by the NCCPA in order to obtain a license to practice as a PA in New Jersey. N.J.S.A. 45:9-27.13. The Act also requires that every PA "be under the supervision of a physician at all times during which the physician assistant is working in an official capacity." N.J.S.A. 45:9-27.18. However, the supervising physician need not be physically present "provided that the supervising physician and physician assistant maintain contact through electronic, or other means of, communication." Id.

The Act requires that the supervising physician or physician assistant inform the patient that the medical services are being provided by a PA. Additionally, the PA must "conspicuously" wear an identification tag using the term "physician assistant" or the designation ""PA-C" or "PA." N.J.S.A. 45:9-27.15. Additionally, all notations in any clinical record by a PA must be signed and followed by the designation, "PA-C" or "PA.” Id.

Both the supervising physician and PA are obligated to ensure that the PA's scope of practice is clearly identified and that the PA is competent to perform the medical tasks delegated by the physician. N.J.S.A. 45:9-27.18. The Act provides a very broad definition of the scope of the practice of a PA and permits PAs to provide almost all of the services that at one time were only provided by physicians. For example, the Act permits a PA to routinely take the history and perform the physical examination of a patient, suture minor wounds and conduct rounds in an inpatient setting. The New Jersey Board of Medical Examiners has promulgated regulations which increased the scope of practice and permit PAs to routinely place catheters and tubes; perform minor surgical procedures such as simple excisions, incision and drainage and debridement, pack wounds, apply and remove medical and surgical appliances and devices such as splints, casts and immobilizers, manage emergency and life threatening conditions and perform low-risk obstetrical deliveries in a licensed hospital with the supervising physician or physician designee on premises and available to respond immediately. See, e.g., N.J.A.C. 13:35-2B.4

Subject to the supervision of a physician, the Act permits a PA to perform non-invasive laboratory procedures, assist in the performance of invasive laboratory procedures, give injections, administer medications, care for facial wounds and other traumatic wounds requiring suturing in layers, infected wounds; write prescriptions in accordance with section C.45:9-27.19, and prescribe the use of patient restraints. The BME regulations even permit a PA to serve as a first assistant or a second assistant in the operating room when an assistant physician is not required by N.J.A.C. 13:35-4.1, and perform other procedures for diagnostic, therapeutic or interventional purposes such as use of endoscopic instruments and aspiration of fluid from joints and body cavities, collection of cerebrospinal fluid, biopsy of tissues, placement of central venous catheters or chest tubes, and endotracheal intubation. Id.

A PA may “order, prescribe, dispense, and administer medications and medical devices to the extent delegated by a supervising physician.” See N.J.S.A 45:9-27.19: Dispensing of Medication. However, controlled dangerous substances may only be prescribed if “a supervising physician has authorized a physician assistant to order or prescribe Schedule II, III, IV, or V controlled dangerous substances.” In such circumstances, a PA may issue or renew a prescription for a CDS or adjust the dosage of CDS. The PA must register with, and obtain authorization to prescribe controlled dangerous substances from the Drug Enforcement Administration and must comply with all requirements or regulations for the ordering, prescription, or administration of controlled dangerous substances.

A PA may also perform additional medical services not explicitly authorized by the licensing statute pursuant to a signed "delegation agreement." N.J.S.A. 45:9-27.17. The delegation agreement defines the PA’s role, “including any specific aspects of care that require prior consultation with the supervising physician.” The delegation agreement also requires a determination of when the supervising physician must conduct a “personal review of all charts and records of patients,” and in what circumstances such a review is not required. In any medical malpractice case involving a PA, it is important to discover whether there is a signed delegation agreement and obtain a copy of the agreement.

However, a PA is not permitted to perform procedures such as an electromyography even under the supervision of a physician. In Selective Insurance Co. v. Rothman, 414 N.J. Super. 331 (App. Div. 2010), affd. 208 N.J. 580 (2012), the appellate division held that an insurance company did not have to pay for the cost of an EMG performed by a PA because the relevant statute limits performance of EMGs to those who are licensed to "practice medicine and surgery in this State pursuant to chapter 9 of Title 45 of the Revised Statutes." Id., 414 N. J. Super. at 337. The Supreme Court affirmed, adding:

Defendant's suggestion that a PA can perform a needle EMG based on the statutory authorization for a PA to "assist" a physician, N.J.S.A. 45:9-27.16(b)(1), is similarly flawed. That approach, which requires a reading of the word "assist" that would equate it with "perform in the place of," would not only be contrary to the clear word that the Legislature chose but also would expand the authority given to PAs well beyond the boundaries that the statute established.

Id., 208 N. J. at 583.

There has not been a reported case in New Jersey which discusses the standard of care to be applied in a case asserting that a PA was negligent. However, as with nurses and other medical providers, it would be safe to conclude that a PA must act in accordance with the standard of care for reasonably prudent PAs in similar circumstances. Curiously, although the New Jersey Legislature has in recent years amended the affidavit of merit statute to include such diverse professions as physical therapists, land surveyors, veterinarians and insurance producers, the Legislature has not yet added PAs to the list of medical providers who are entitled to an affidavit of merit. See N.J.S.A. 2A:53A-26. Nevertheless, the reasonably prudent malpractice attorney will with rare exception obtain an affidavit of merit from a licensed PA prior to filing a malpractice case against a PA.

There has not yet been a reported case in New Jersey which discusses the vicarious liability of a physician for the actions of the PA. However, N.J.S.A. 45:9-27.17(c) provides:

c. In the performance of all practice-related activities, including, but not limited to, the ordering of diagnostic, therapeutic, and other medical services, a physician assistant shall be conclusively presumed to be the agent of the physician under whose supervision the physician assistant is practicing.

Thus, the physician responsible for supervising the PA remains responsible for the negligence of the PA. Additionally, the supervising physician is responsible for the actions of a PA who is permitted to provide services in excess of what is permitted by the Act:

b. Any physician who permits a physician assistant under the physician's supervision to practice contrary to the provisions of C.45:9-27.10 et seq.) shall be deemed to have engaged in professional misconduct in violation of subsection e. of section 8 of C.45:1-21 and shall be subject to disciplinary action by the board pursuant to C.45:1-14 et seq.

The Act provides PAs and their supervisors with a limited immunity from damages for actions in response to emergencies. See N.J.S.A. 45:9-27.18a. Neither the PA nor the supervising physician is liable for personal injuries resulting from the negligence of a medical provider "who voluntarily and gratuitously, and other than in the ordinary course of employment or practice, renders emergency medical assistance." However the immunity does not apply to "an act or omission constituting gross, willful, or wanton negligence or when the medical assistance is rendered at a hospital, physician's office, or other health care delivery entity where those services are normally rendered." Id. As are other medical providers, PAs are required to maintain medical malpractice insurance or a letter of credit. N.J.S.A 45:9-27.13a.

There is a dearth of current data regarding the trends in malpractice claims against physician assistants and advanced nurse practitioners. However, as the number of practitioners in both of these professions continues to rise dramatically, we anticipate that the number of malpractice cases arising out of the care provided by such professions will similarly increase. Our office has seen a substantial rise in a number of significant malpractice cases where the primary defendant was a PA in a hospital setting. These cases can be substantial. In Florida, a patient whose stroke was misdiagnosed was awarded $217 million, including $100 million in punitive damages, after it was discovered that he was misdiagnosed by an unlicensed PA. In our cases, there have been common themes of a lack of written protocols to guide the PA, a breakdown in communication between the PA and the supervising physician, and cases where a PA was asked to deal with medical conditions beyond the scope of their training and experience. Given all of these trends, we anticipate that physician assistants will have an increasing role in the delivery of health care and in malpractice litigation.

Mr. Brown is a partner at the Freehold N.J. firm of Lomurro, Munson, comer, Brown and Schottland. He is the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018), and was counsel for one or more bar associations as amicus curiae in the following malpractice cases: Meehan v. Antonellis 226 N.J. 216 (2016); Nicholas v. Mynster, the 213 N.J. 463 (2012); Ryan v. Renny, 203 N.J. 37 (2010); Ferreira v. Rancocos Orthopedic Group, 178 N.J. 144 (2003); Palanque v. Lambert-Woolley, 168 N.J. 398 (2001); Hubbard v. Reed, 168 N.J. 387 (2001); Burns v. Belafsky, 166 N.J. 466 (2001); Cornblatt v. Barow, 153 N.J. 218 (1998); and In Re Hall, 147 N.J. 379 (1997).

Mr. Lomurro is a partner at the Freehold N.J. firm of Lomurro, Munson, comer, Brown and Schottland. He is the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018), and author of Digital Litigation: Litigation Technology for the Modern Practitioner (ICLE 2014); and TRY IT: With Friends: "A Trial Guide for New Jersey Lawyers" (ICLE 2010), and numerous articles about related topics.

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