Mark Petraske secured another defense verdict after a 7-week trial in Camden County. Mr. Petraske represented an Emergency Room physician in a significant personal injury case brought on behalf of a 54-year-old woman who died after presenting to the Emergency Room with necrotizing fasciitis and severe sepsis. Plaintiff alleged that the surgical team delayed in bringing the patient to the operating room by doing unnecessary imaging and engaging in poor decision making and that the Emergency Room doctor delayed in starting antibiotics and fluid resuscitation and failed to communicate with the surgical team in a timely manner which delayed the patient from receiving timely surgical intervention. Mr. Petraske defended the allegations against the Emergency Room physician on both liability and causation grounds and, while the orthopedic attending was found negligent, the Emergency Roon physician was determined to be not negligent by the jury.
Mark Petraske is the Co-Chair of DHD’s Medical Malpractice Defense Department. Mr. Petraske is a Certified Civil Trial Attorney and throughout his distinguished career has successfully represented healthcare professionals and institutions in professional negligence cases. Since March 2022, Mr. Petraske has started 16 trials, and secured 10 defense verdicts. Three cases involved mistrials due to plaintiff-related issues, one has been retried to a defense verdict. Three matters settled during trial for the initial offers. Two of the cases have resulted in published appellate decisions, along with two unpublished Appellate decisions in cases where he had secured dismissals on behalf of DHD’s clients.
Mary Beth Gazi recently secured the dismissal of a wrongful death lawsuit against a nurse practitioner based on the statute of limitations. In the lawsuit, the nurse practitioner was not named in the original complaint. After initial written discovery and depositions, plaintiff’s counsel was permitted to amend the complaint to add the nurse practitioner despite the objection of Ms. Gazi that the amendment was improper because the claim was time-barred. Subsequently, Ms. Gazi filed a motion for summary judgment and argued that the claim should be dismissed based on the statute of limitations because the consultation notes contained in the pertinent records clearly listed the nurse practitioner’s name and employer, and the records also contained two typed consultation reports by the nurse practitioner. The motion for summary judgment was opposed by plaintiff who argued that the claim was not time-barred and permissible under the fictitious pleading rule because “John Doe” parties were included in the original complaint. Under New Jersey law, the fictitious pleading rule allows a litigant to preserve a cause of action when the litigant knows the nature of the claim but does not know the identity of the alleged tortfeasor. After a lengthy oral argument, the trial court granted the motion for summary judgment and held that the claim was barred under the statute of limitations. In so ruling, the court rejected plaintiff’s effort to rely on the fictitious pleading rule based on its determination that plaintiff failed to use proper diligence because the nurse practitioner’s identity could have been ascertained by a thorough review of the records before the expiration of the statute of limitations.
In Camp v. Scimeca, plaintiff alleged the defendant physician deviated from accepted standards in failing to diagnose and treat glaucoma in the plaintiff’s left eye, resulting in permanent loss of vision. Plaintiff, an avid reader and author, had presented to the defendant ophthalmologist with complaints of loss of peripheral vision and was found to have elevated intraocular pressure. Defendant physician prescribed medication to increase the outflow of the fluid within the eye (aqueous humor) to reduce the pressure, which initially was effective, but the patient was not able to tolerate the medication. The patient then underwent two laser procedures to reduce the intraocular pressure, which also was initially effective, but the pressure ultimately crept back up. The patient went to another eye surgeon and underwent a shunt procedure, the placement of a tube directly into the eye to drain the fluid to reduce the patient’s intraocular pressure, but the patient nevertheless lost 90% of her peripheral vision in her left eye. Plaintiff’s expert opined that defendant physician should have performed the shunt procedure much earlier and that had he done so plaintiff would not have lost her eyesight. The defense demonstrated that the doctor maintained intraocular pressure below the 30 mm Hg threshold that damages the optic nerve, a standard with which the plaintiff’s expert agreed. Using literature supplied by plaintiff’s expert, the defense demonstrated that it would have been inappropriate to do the shunt procedure until it was clear that the less risky and less invasive treatments of medication therapy and laser therapy were not working. The jury returned a unanimous verdict that the defendant was not negligent in his treatment.
Russ Hewit and Mark Petraske both obtained defense jury verdicts of no cause for action in favor of their clients within the span of a week. Russ Hewit tried a medical malpractice case in Union County from January 9 to February 9 and Mark Petraske completed a 7-day dental malpractice trial in Middlesex County on February 7.
Russ Hewit obtains defense verdict in suit for the wrongful death of a 35 year old married mother of two. In Teixeira v. Khazaei, tried in Union County, Marlenes Teixeira, a 35 year old 1st time mother delivered healthy baby twins. Within an hour of delivery and for the next 3-4 hours, she developed elevated blood pressures that fluctuated into the severe range. She suffered a cerebral hemorrhage four and half hours after delivery and then passed 5 months later. Plaintiffs sued her treating obstetrician and the resident and labor and delivery nurse providing postpartum care for failure to diagnose and treat preeclampsia and postpartum hypertension. Plaintiff called an obstetrical expert on the standard of care and a neurologist and neuroradiologist that decedent’s cerebral hemorrhage was caused by untreated hypertension. Decedent was a public-school principal in Elizabeth and plaintiff’s economist testified that net economic damages exceeded $6.8 million. Plaintiff also sought pain and suffering experienced by decedent prior to her death. Russ Hewit, representing the attending obstetrician, presented expert testimony from an obstetrician that the decedent’s fluctuating blood pressures did not require treatment with antihypertensive medications and testimony from a nephrologist / hypertension expert and neuroradiologist that decedent’s cerebral hemorrhage was not caused by the elevated blood pressures, but by pregnancy induced changes to the mother’s cardiovascular system and/or by an unknown, pre-existing arteriovenous fistula in the brain. Following four weeks of testimony, the jury returned a verdict on February 9 that the attending obstetrician had not deviated from accepted standards of care in his treatment. The jury found that the co-defendant nurse had deviated from nursing standards of care, but that such deviation did not cause the decedent’s hemorrhage. The co-defendant resident settled prior to trial.
Mark Petraske secures jury verdict in case alleging permanent bone destruction in jaw. In Green v Albani, tried in Middlesex County, plaintiff alleged defendant dentist was negligent in the placement of two implants, causing an infection that developed into an antibiotic resistant infection and osteomyelitis (infection of the jawbone) and resulting in permanent bone destruction and bone loss. The patient required subsequent hospitalization, surgery and IV antibiotic treatment and also sought damages for the permanent bone loss in her jaw. Plaintiff called a dental expert who opined that the defendant dentist should have used advanced imaging techniques which would have enabled better evaluation of the jaw in order to determine where and how best to locate the implants in order to avoid a predictable jawbone defect that allowed the infection to take hold. Plaintiff also alleged a lack of informed consent on the risks of the procedure. Mark Petraske presented expert testimony and evidence that advanced radiology was not necessary and would not have resulted in any different location of the implants, and that the proper pre-procedure workup was performed. Using the existing radiology studies, Mark demonstrated to the jury that the implants were placed in solid bone structure and presented convincing evidence that the infection was a disclosed and accepted risk of the procedure. After 7 days of trial, the jury returned a verdict in favor of defendant after only 26 minutes of deliberation. This is Mark Petraske’s sixth favorable jury verdict in 7 months. Since jury trials resumed in June 2022 (after courts were closed during COVID), Mark is 6-0 at trial.
Mark Petraske successfully defended a physician in a recent medical malpractice case and secured a “No-Cause” verdict after a 10-day trial in Burlington County. The case was complex and involved a dispute over whether a primary care physician failed to diagnose an evolving arterial occlusion in the lower leg and whether that alleged failure to diagnose resulted in the need for the amputation of the plaintiff’s leg below the knee. At trial, Mr. Petraske presented evidence which disputed the plaintiff’s contentions about the level of care and the alleged failure to diagnose by the physician, and effectively presented an alternative causation argument through expert testimony which showed that the likely cause of the plaintiff’s condition was unrelated to the physician’s care and treatment. The jury agreed with the defense presentation by Mr. Petraske and returned a unanimous verdict in favor of the defendant physician after deliberating for about 5 hours. In addition to the complex medical and scientific issues in dispute, the trial itself presented several procedural challenges brought about by Covid-19, including a “hybrid” approach to jury selection and participation – i.e., the jury was selected virtually but then the jurors attended the court proceedings in person. Most of the witnesses were live, but two witnesses appeared by video link. One interesting development during trial was that one of the attorneys and experts were diagnosed with Covid-19. Rather than declare a mistrial, the court stopped the trial for 5 days until the attorney and expert tested negative and the trial was then resumed to completion.
Trial partner John Dughi secured a defense verdict on behalf of a defendant neuroradiologist alleged to have injured the plaintiff’s nerve root during a lumbar puncture, resulting in permanent and severe back pain and headaches. The plaintiff was a 43-year-old married father of four and former high school and Ivy League scholar-athlete, claiming these injuries interfered with essentially all aspects of his life, from his career to his family life, and prevented him from engaging in any physical and athletic activities. Plaintiff’s last settlement demand was $5,000,000. Cyndee Allert sat second chair to Mr. Dughi in securing the win. The case was tried to a jury in the Union County Superior Court over the course of 7 trial days. Wolfe v. Volvovsky, Docket No. UNN-L-3204-14.
Trial partner Russ Hewit successfully defended a cardiologist in a wrongful death case brought by the estate of a 39 year old married father of one in the Essex County Superior Court. Plaintiff claimed the decedent had presented to the emergency room with signs and symptoms of an acute heart attack, including a significantly abnormal EKG, but was discharged home, where he died the next day. Plaintiff’s economist testified to projected loss of income and loss of care, guidance and advice to the surviving spouse and child of between $3.6 and $4.6 million. The case was tried to a jury over the course of two weeks in Essex County.
Trial partner Brandon Minde successfully defended two psychiatrists in a Union County Superior Court action brought by a former school teacher seeking damages for an involuntarily psychiatric commitment resulting from alarming comments at a staff meeting to assess teen suicide and safety.
Mr. Minde proved that actions taken by the physicians were protected by NJSA: 30:4-27.7, which provides statutory immunity to healthcare professionals when making decisions regarding involuntary confinements necessary to protect an individual and/or safeguard the public.
The case was tried over two weeks before Judge Mega resulting in a defense verdict.
