Knowledgeable rebuttal of medical malpractice plaintiff’s specious negligence per se claim

October 6, 2017

Issue

A plaintiff originally hurt himself by putting his arm through a window and cutting his arm on the broken glass. He then went to the emergency room for treatment.  He claimed that the emergency room physician committed medical malpractice by failing to remove all of the glass from his wound, and sued our clients, the emergency room physician and hospital.

Approach

We filed a motion to dismiss Plaintiff’s complaint because Plaintiff did not attach an affidavit of merit to the Complaint.  Plaintiff argued that he did not need to attach an Affidavit of Merit because this was a case was a foreign objects case or a negligence per se case.  We responded to this argument distinguishing the fact pattern from true foreign objects cases where a surgical implement is left within a patient. 

Result:

The Court agreed with us that Plaintiff needed an affidavit of merit, and allowed Plaintiff 90 days in which to file such an affidavit of merit, otherwise the Complaint would be dismissed without prejudice.  Rather than obtaining an affidavit of merit, Plaintiff dismissed his case instead.

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