The “net opinion” rule appears to be a mere restatement of the established rule that an expert’s bare conclusions, unsupported by factual evidence is inadmissible. It frequently focuses on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.

To avoid the “net opinion” problem, the development of the case requires the step-by-step assembly of materials for the experts to review, analyze and ultimately prepare a report to be used as a basis for subsequent testimony. In many cases more than one expert will be used — one on liability and one on causation. Under these circumstances the reports and testimony have to dovetail.

A clear example of the problem is seen in the management of the case in which there is the failure to promptly diagnose cancer, which leads to a deterioration in the patient’s condition and loss of a chance for survival. In the case of breast cancer the first witness may be the radiologist who has reviewed the mammograms. The radiologist would be able to testify that if the mass was seen in the initial reading and should have been seen, that a diagnosis of cancer would have been made and that based on that diagnosis the patient would have had treatment available. The radiologist can identify the lesion and explain why it should have been identified.

The second expert has to make a determination as to the stage of cancer had the diagnosis been made when the first expert indicated the diagnosis should have been made. Multiple factors will enter into this discussion. The length of time between the initial mammogram when the cancer was missed and the second mammogram when the diagnosis was made, the change in the size of the tumor, the number of lymph nodes found to be affected at the time of the diagnosis and finally the type of cancer that is found to be present. The greater the length of time the greater the likelihood that the stage of the cancer will advance, which will decrease the chance that the individual will survive that cancer. This information will correlate with the node involvement and tumor size. However, the type of cancer can skew all of the information as some cancers are more likely to advance more rapidly than others and the patient’s outcome will not be affected by time or tumor growth.

The statistical information for cancers such as breast cancer is readily available and experts can testify with a great deal of authority. The net opinion rule, though at times apparently onerous, is really an asset to plaintiff’s counsel. Ultimately, the expert will have to testify that the delay in the diagnosis adversely affected the plaintiff. By forcing the plaintiff to pin down the expert early in the litigation process a determination can be made as to whether or not the expert evidence will be present for a compelling viable case. A causal relationship would be defined and a net opinion averted.

The State Board of Medical Examiners and the Department of Health regularly review the practices associated with the delivery of health care. While we will check the case law for changes, we usually do not avail ourselves of the regulatory changes that will affect the standards within which the parties have to function. The State Board of Medical Examiners recently proposed rules setting Surgical and Anesthesia Standards in Physician Offices. N.J.A.C. 13;35-4.3 through 4.20. Considering the amount of anesthesia being provided outside of hospitals and licensed surgicenters it was deemed that such rules were necessary. Review of the administrative regulations is often helpful in particular cases.

Trial

The doctrine of res ipsa loquitur was also revisited during this past year in Kelly v. Berlin, et al, 300 N.J. Super 256, (App. Div. 1997). The theory of res ipsa loquitur is tantalizing to the plaintiff’s attorney who is presented with a situation that is so “clear” that there should be no question as to how a jury would decide. However, if the facts are so clear then there should be no problem with finding an expert who would agree that there has been a deviation from the accepted standards of care. An expert’s opinion is far better than the chance acceptance of the res ipsa doctrine in a specific case.

Obviously the clearest of cases would be those in which a sponge or clamp was left in during the course of an operation. However, even in those cases the question will be raised as to which individual was at fault. Considering the number of people who may have had their hands in the patient’s abdomen or the problems that presented themselves during the surgery, an argument might be made that leaving the sponge was not negligent. There are hundreds of trial judges in New Jersey and there is no hard rule as to the res ipsa argument. It would be best to have an expert in every medical malpractice case otherwise you are relying on a judge to accept your argument and as seen in Kelly the argument was unsuccessful.

Closure, Settlement or Verdict

Settling a case is not as simple as the parties agreeing on a figure and sending signed releases, receiving a check and depositing that check into the trust account.

Attorneys are used to the fact that when dealing with an estate there has to be an administrator ad prosequendum appointed and that the distribution may require approval of the Court. We are all used to preparing the papers for a “friendly” and making an application for the appropriate fee. However, recently U.S. Healthcare and some other carriers are attacking the collateral source rule. [See related article, page XX.] Recently Metropolitan Insurance Company and Lucent Technologies, Inc moved to intervene “to protect their subrogation rights against plaintiffs and defendants.” Berry v. St. Peter’s Hospital of The City of Albany (N.Y.L.J., June 17, 1997). Both companies had spent in excess of $1.7 million in providing healthcare and there was the concern that their interests would not be addressed during the course of the litigation.

New York does have a “collateral source” rule but that rule is to prevent unjust enrichment for the plaintiff, not as indicated here, to deprive an interested party from receiving appropriate reimbursement. HMO contracts now often have such a clause so that if there is any recovery for medical expenses that they would have a right to those funds for the purposes of reimbursement. The question is whether they will become proactive and enter into litigation to recover medical expenses when the outlay or the potential outlay is in the millions of dollars. We are currently obligated to reimburse Medicaid regardless of whether or not there is a recovery for medical expenses in a settlement. In addition we have to be aware of any Workers’ Compensation liens.