A recent case in New Jersey will determine whether New Jersey physicians must disclose whether or not they have the required medical malpractice insurance coverage required by law.
Every year, thousands of Americans are harmed by medical malpractice, resulting in injuries and death in some cases. Patients harmed by malpractice, or families of those killed by it, have a legal right to seek monetary compensation for their losses from the physician or surgeon responsible.
However, even if the party seeking compensation is able to obtain a judgment, it does not mean they will actually be able to collect on it. In order to actually receive the compensation, the necessary finances must be available. In most cases, the source of the finances comes from medical malpractice insurance, which is used to pay all or at least part of a malpractice judgment.
Under New Jersey law, all physicians practicing in the state must carry at least $1 million in malpractice insurance coverage per occurrence and $3 million per policy year. If physicians cannot obtain coverage, the law requires them to provide a $500,000 letter of credit.
In spite of the law’s protections, many physicians operating in New Jersey do not carry malpractice insurance, which makes it more likely that they would not be able to pay any malpractice judgments against them. If such physicians continue treating patients and do not inform them that they are uninsured, can this be construed as a fraud as far as the patient is concerned? A recent case in the New Jersey Supreme Court will answer this question.
Background of case
The case, entitled Jarrell v. Kaul, involved a patient who experienced a botched spinal surgical procedure performed by Dr. Kaul. At the medical malpractice trial, the court found “overwhelming” evidence that Dr. Kaul was negligent in the surgery. As a result, the jury awarded the patient various damages totaling $938,000. Dr. Kaul appealed the judgment, but it was upheld.
Another issue arose during the trial when it was discovered that Dr. Kaul’s medical malpractice insurance policy specifically excluded spinal surgeries from coverage and that he did not disclose this to his patient. As a result, the patient argued that the concealment of this fact constituted misrepresentation, deceit and outrageous conduct. As a result, the patient argued that Dr. Kaul failed to obtain informed consent before the procedure, which made him liable for battery. However, both the trial court and appellate courts rejected this argument. The patient then appealed this issue to the New Jersey Supreme Court for resolution.
The New Jersey Supreme Court recently heard arguments in this case about whether a physician’s failure to disclose a lack of malpractice insurance coverage amounted to actionable fraud or deceit. A decision is expected later this year or in early 2015.
An attorney can help
If the court rules in favor of the patient, it could potentially create a new cause of action for a certain subset of patients that have essentially been tricked into giving their consent for treatment to a physician without first knowing that he or she is financially unable to pay for any mistakes that may occur. If you have suffered harm because of a negligent physician or surgeon, contact an experienced medical malpractice attorney right away. An attorney can work to ensure that the responsible parties for your injuries do not escape accountability.
