Dughi, Hewit & Domalewski is proud to announce that the New Jersey State Bar Association Medical Malpractice Special Committee has named John Dughi the 2020 recipient of the “Senator William O. Barnes NJSBA Award for Excellence in Medical Malpractice Litigation.”
The Senator William O. Barnes NJSBA Award for Excellence in Medical Malpractice Litigation recognizes those lawyers who have demonstrated “exemplary civility, integrity and professionalism” in their practice and career and who have made “a significant contribution to the practice of law in the field of medical malpractice.” No lawyer fits that description more than John – a quintessential professional who has been a true leader and the “Dean of the Malpractice Bar” for many years.
John’s storied career began after he graduated from the Cornell University school of law in 1972. In 1979, he and Russ Hewit formed Dughi & Hewit. For almost fifty years, John has defended physicians and other health care providers, taught trial attorneys at countless ICLE courses and mentored young attorneys in our firm and across the state.
John tried his first malpractice case in late 1973 and his most recent trial was completed in 2019, both were defense verdicts. Over the course of his career, John conducted 255 trials with very few defeats and many notable and reported decisions in the medical legal field. He has tried malpractice cases in 20 of the 21 counties in New Jersey. He has counseled most of the major malpractice insurance carriers on their exposure issues while defending thousands of their insureds. He tried and most often won against the top plaintiff’s attorneys in New Jersey and from NYC and Philadelphia.
He has tried to a conclusion notable malpractice cases many of which are reported decisions establishing important concepts in the medical legal field. He handled the re-trials of Canesi v. Wilson regarding the evidential weight of PDR warnings, and Cho v. Park fundamentally changing the procedures for in limine and other pre-trial motions. He tried Komlodi v. JFK (twice) changing the standard of proof for intervening causation and Scafidi preexisting harm charge language, Austin v. Deitch establishing the remedy for a violation of the affidavit of merit statute, Hutchinson v. Feldman changing the law to permit physician defendants to be questioned on standard of care issues, and Hudgins v. Serrano which clarified the standards for remittitur and qualification of experts. It is most notable that in each of these trials the outcome was a victory for John’s client notwithstanding the appellate court’s impact upon the defense or prosecution of malpractice matters.
John practiced in an era when most cases were tried and not settled, against legendary names in the malpractice bar, including this Award’s namesake, William O. Barnes.
The COVID-19 pandemic has had a major impact on commercial real estate transactions in New Jersey. Most significantly, many commercial landlords and tenants in New Jersey are experiencing the financial repercussions from the coronavirus and governmental shut down orders which has prompted requests from tenants for forbearance, concessions or forgiveness of lease payments or termination of the lease entirely. In New Jersey, while the Governor has signed an Executive Order providing some relief to residential tenants during the pandemic, there is no parallel legislation or executive orders applicable to to address commercial landlord/tenant issues.
At DHD, we have represented both commercial landlords and commercial tenants in New Jersey facing economic hardship. The economic shut down has presented significant challenges to both commercial landlords and tenants and we understand the legal and financial issues resulting from the COVID-19 pandemic and governmental shut down in New Jersey.
As a tenant whose business has been deemed “non-essential” by the government, this means no foot traffic in the leased space, a significant decline in revenue, and resulting constraints on the ability of the tenant to make lease payments. While many leases contain “force majeure” provisions, it is essential that you, as a tenant, seek legal advice to determine whether these or any other provisions of your lease provide you with the ability to forbear lease payments or even terminate the lease without default as a result of the pandemic. We have significant experience in assisting commercial tenants in New Jersey facing this situation and have successfully negotiated early lease terminations at reduced costs offering some relief to commercial tenants.
Commercial landlords in New Jersey are also significantly impacted by the COVID-19 pandemic. Oftentimes, landlord leased property is financed and it is the tenants’ lease payments that pay the mortgage. What action should a landlord pursue? File an eviction action? Agree to rent concessions? Each individual circumstance is unique and requires thoughtful analysis and legal advice. The Governor’s Executive Order in New Jersey does not apply to commercial leases, therefore, landlords are not prohibited from filing an eviction action if the tenant defaults in the payment of rent. While this is a consideration, it may not be the most prudent course of action. Furthermore, the lease may contain force majeure provisions or other tenant defenses to payment of rent that should be analyzed and interpreted by counsel prior to the landlord taking any action in New Jersey. In some cases, a concession of rent may be considered by the landlord. However, a rent concession should not be agreed to automatically and should be done in conjunction with an overall review of the circumstances applicable to the particular tenant and the lease between the parties.
Whether representing a commercial tenant or a commercial landlord in a lease dispute arising due to COVID, DHD has the expertise and legal knowledge to assist our commercial real estate clients in seeking amicable resolutions to lease challenges and navigating the unique circumstances resulting from the pandemic in New Jersey.
Please contact Lori Ciarrocca Duffy, Esq., if you are a commercial tenant or commercial landlord and have any questions about your rights or obligations under a commercial lease arising from the COVID-19 pandemic in New Jersey.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
The Coronavirus/COVID-19 pandemic has affected the residential real estate market in New Jersey as it is one of the states most impacted by the pandemic. Although the Governor has deemed residential real estate transactions an “essential” business in New Jersey, many Sellers are hesitant to put their homes on the market for fear of brokers and potential buyers entering their homes, and many would-be buyers are rethinking a home purchase in light of the uncertain economic impact that the pandemic may have on them.
However, as the state slowly re-opens, we anticipate that the New Jersey residential real estate market to re-energize as mortgage interest rates are at all-time lows and many urban dwellers are inclined to “make the move” to the suburbs.
As the New Jersey residential real estate market picks up, buyers and sellers should be aware of certain contract changes which have emerged in light of the pandemic. New Jersey realtors have adopted an Addendum Regarding Coronavirus to be included with their standard form broker contract. Essentially, this addendum addresses two major issues: (i) potential closing delays that may occur during the real estate transaction as a result of the pandemic, and (ii) a change in financial circumstance of buyers. First, the addendum provides for a delay of the closing on account of potential delays resulting from COVID-19. For example, many lenders are working remotely. This could lead to administrative delays in final approval of the mortgage. In this circumstance, the addendum would allow for a closing to be delayed without either party being in default. Second, the addendum allows for a buyer to cancel the contract without default in the event the buyer loses his or her job or the pandemic otherwise results in a loss of their income. Even as the economy slowly re-opens, its economic impacts are likely to be felt for a significant period of time, therefore, it is essential when representing a buyer to include this provision in the contract.
In addition to inclusion of the broker form COVID-19 addendum, during the attorney review process, provisions to address delays which may occur during the inspection and appraisal process and the issuance of the fire/carbon monoxide certificate issuance should be considered. While, generally, buyers and sellers are held to perform the foregoing within certain prescribed time periods (otherwise risk termination of or default under the contract), delays due to the pandemic must be considered and allowed to account for the limitations imposed on businesses. These provisions would serve to protect both parties from delays which may be out of their control.
At DHD, we have successfully closed many residential real estate transactions in New Jersey over the history of our firm and during this pandemic. We take the utmost precautions to protect our clients both personally and contractually. Purchasing a home is usually one of the most significant financial investments one can make and we are dedicated to vigorously representing our clients and addressing their specific needs regardless of the circumstances.
If you would like to discuss a potential sale or purchase of residential lease or some other issue pertaining to residential real estate, please contact Lori Ciarrocca Duffy, Esq.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
Dughi, Hewit & Domalewski, PC, is pleased to announce that Brandon Minde has become the Chair of the Criminal Law Section of the New Jersey State Bar Association for the 2020-2021 term. The Criminal Law Section, composed of members from the defense bar, prosecutor’s offices, and former members of the judiciary, deals with information and education concerning the improvement of the criminal justice system, and takes an active role in responding to developments which affect its membership and in suggesting methods through which the legal system can more effectively serve the interests of Criminal Law Section members and their clients. Toward that end, Brandon recently served as the Chair of the section’s Subcommittee on COVID-19 Challenges to Criminal Practice, which provided several recommendations for continuing the practice of law that were ultimately implemented by order of the NJ Supreme Court.
Brandon is a partner with the firm, is certified by the Supreme Court of NJ as a Criminal Trial Attorney, and leads DHD’s criminal defense practice.
Yesterday, the New Jersey Legislature passed a bill that would provide limited immunity to health care workers and hospitals in New Jersey for medical treatment related to the COVID-19 emergency. The bill does not extend immunity to acts or omissions constituting gross negligence, recklessness, or willful misconduct.
The bill, S2333/A3910, passed both houses overwhelmingly and is now on Governor Murphy’s desk. A copy of the bill can be accessed here [S2333_l1]
The bill would be retroactive to March 9, 2020, and its protections will be available for COVID-19 related treatment during the state of emergency declared by the Governor.
The bill is intended to protect doctors, nurses and other healthcare providers from malpractice lawsuit for acts or omissions undertaken in good faith for medical treatment provided in response to the COVID-19 pandemic.
It also protects a “health care facility” as defined in N.J.S.A. 26:13-2, which defines a “health care facility” broadly to include, “an ambulatory surgical facility, home health agency, hospice, hospital, infirmary, intermediate care facility, dialysis center, long-term care facility, medical assistance facility, mental health center, paid and volunteer emergency medical services, outpatient facility, public health center, rehabilitation facility, residential treatment facility, skilled nursing facility, and adult day care center.”
The bill is intended to prevent lawsuits stemming from the use of a “scarce critical resource allocation policy” – i.e., decisions about how to use ventilators, intensive care unit beds and other resources that may be in limited supply.
While this bill appears to be a well-intended effort to protect the health care workers and entities working on the front lines to save lives during this pandemic, it is not difficult to see that the bill, as drafted, may be exploited for many loopholes.
Lawsuits will arise over the intended scope of immunity and whether the intended carve out for acts of “gross negligence” will be avoided by alleging that acts which would otherwise be described as ordinary negligence are acts constituting gross negligence. Lawsuits may also be filed by non-COVID-19 patients who claim to have become infected as a result of negligent infection control measures. There will also likely be lawsuits against Administrators and Medical Staff Directors for decisions during this time period which impacted the delivery of clinical care which plaintiffs contend are not included with the scope of the immunity.
While the bill was clearly intended to have sweeping, positive effect, like most legislation passed quickly and with little debate, the details of defining the scope of the broad legislative immunity and its exceptions will likely fall on the Courts with potentially inconsistent results. Lawsuits may also be filed over whether the legislature can lawfully make this immunity apply retroactively to acts of malpractice which have already occurred. Going forward, understanding and addressing the provisions of this bill is certain to be one more important aspect of the defense of many medical malpractice claims, if it is enacted into law.
We are closely monitoring this bill and all legal developments related to the COVID-19 crisis. If you have any questions about the bill or how the COVID-19 crisis may impact you or your health care facility, please contact us for a consultation.
For forty years, the lawyers at Dughi, Hewit & Domalewski, P.C., have represented doctors, nurses, and other healthcare professionals, as well as hospitals, nursing homes, and other health care facilities.
If your matter involves medical malpractice or nursing home liability, please contact Herb Kruttschnitt III at hkruttschnitt@dughihewit.com or Mark A. Petraske at mpetraske@dughihewit.com. If your matter involves other COVID-19 legal issues or concerns, please contact Craig A. Domalewski at cdomalewski@dughihewit.com.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
On October 8, 2019, the Appellate Division ruled that hospitals in medical malpractice actions can be required to produce a narrative statement identifying where, in the medical records, the facts of an “adverse event” are located even though the records are not lengthy and the facts of the event are evident and not buried in the records (so called Brugaletta Narrative named for the Supreme Court’s decision in Brugaletta v. Garcia, 234 N.J. 225 (2018).
Just last year, the New Jersey Supreme Court, in interpreting the New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, refused to order the release of an investigative report developed during self-critical analysis, even if redacted. See Brugaletta v. Garcia, 234 N.J. 225 (2018). But, the Supreme Court commented that the PSA does not immunize from discovery information otherwise discoverable, such as the facts within the medical record which constitute the “adverse event” reviewed by the Patient Safety Committee. The Supreme Court held that, while plaintiff was not entitled to any part of the PSA-privileged Incident Report, plaintiff was entitled to a narrative summary of the factual information of the adverse event contained within the approximately 4,500 pages of medical records.
In the several months since the Brugaletta decision, these Brugaletta Narratives have become the subject of considerable motion practice as plaintiffs and defendants cannot agree on when plaintiffs are entitled to them – in all cases involving an adverse event occurring at a hospital (as urged by plaintiffs) or only in cases with voluminous records of complex medical cases (defense position).
Recently, the Appellate Division clarified when Brugaletta Narratives identifying the facts of an adverse event in a hospital records will be required. In Trella v. Bradish, MD (A-3039-18T3), the Appellate Division affirmed a Law Division decision ordering the defendant Newton Medical Center to provide plaintiff with a written narrative of any “adverse incident” in the hospital records. Defendant appealed, arguing that the Law Division erred in requiring a narrative because, unlike in Brugaletta, plaintiff’s medical records were neither voluminous nor complex and that the facts describing the adverse event were not discretely buried therein.
The Appellate Division, in a two judge decision, affirmed the Law Division’s order that defendant provide a Brugaletta Narrative, reasoning that nothing precludes the Court from ordering defendant to identify the facts of the adverse event in a hospital record, irrespective of the length or complexity of the medical chart.
Based on the Appellate Division’s decision in Trella, Brugaletta Narratives will be a routine discovery request by plaintiffs in medical malpractice cases, applicable to all cases involving an adverse event occurring in a hospital. Given that the facts of an adverse event are not privileged, and the lack of dissent in Trella, we do not expect the Supreme Court will take up this issue.
Dughi, Hewit & Domalewski, P.C. is proud to announce that Craig A. Domalewski has been selected, once again, for inclusion in the 2020 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession, for commercial litigation.
About Best Lawyers®
Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere.
Bail reform is a hot topic and the public safety assessment (PSA) is a pretrial risk assessment that was introduced through the Criminal Justice Reform Act. In an article published by New Jersey Lawyer magazine, attorneys Brandon Minde and Elizabeth Farrell explore how effective representation for your client now requires an understanding of the PSA and its role in the detention analysis.
This article was originally published in the June 2019 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association, and is reprinted here with permission.
Partners Craig Domalewski and Herb Kruttschnitt successfully obtained a dismissal with prejudice of a lawsuit filed against a nursing home by a former resident alleging negligence and fraud arising from an alleged improper referral to a home health care company. The firm thoroughly investigated the plaintiff’s allegations and, after establishing a factual record which refuted liability, vigorously defended the case and obtained a dismissal with prejudice for our client.
For forty years, Dughi, Hewit & Domalewski, P.C. has provided high-quality legal services to hospitals, nursing homes, physicians and other healthcare providers in a wide array of litigation, transactions, and regulatory matters.
