Epstein Becker Green Lawyers Anthony Argiropoulos, Theodora McCormick, William Gibson, and Maximilian Cadmus Argue for Amicus Curiae New Jersey Doctor-Patient Alliance

On August 25, 2022, the New Jersey Supreme Court issued on an important decision in Mirian Rivera v. The Valley Hospital, Inc., (A-25/26/27-21)(085992)(085993)(085994), reaffirming the exceedingly high bar for punitive damages claims in medical malpractice cases in New Jersey. This is an important decision for healthcare providers as it provides them with broad protection from punitive damages claims (which are not covered by malpractice insurance) that are really negligence or gross negligence claims in disguise.

In Rivera, the Supreme Court tossed out the punitive damages claims of the sister and husband of the late Viviana Ruscitto, finding that the evidence in the underlying actions might show that the defendants were negligent, or even grossly negligent, but it did not show that their “acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for Ruscitto’s health and safety.” The case reached the Supreme Court after the trial court denied the defendants’ motion for summary judgment on plaintiffs’ punitive damages claim and the Appellate Division denied leave to appeal the trial court’s decision. The Supreme Court granted interlocutory review and in a thirty-one (31) page decision emphatically rejected each of the Plaintiffs’ arguments.

Ruscitto’s sister and the executor of her estate and her husband alleged that Defendant Dr. Howard Jones’s use of a power morcellator during a surgery performed at Defendant Valley Hospital caused a previously undetected cancerous condition, leiomyosarcoma, to spread outside Ruscitto’s uterus and led to her death in September 2015. About six months before the surgery, the FDA issued a “safety communication” about the use of power morcellators, which cut tissue and remove it through small incisions, in uterine fibroid removal. The advisory indicated that power morcellators could spread cancer and discouraged the use of laproscopic power morcellation during hysterectomy or myomectomy for uterine fibroids.

Given the advisory nature of the FDA communication, and the fact that power morcellators were not banned or recalled, the Supreme Court held that use of the power morcellator during Ms. Ruscitto’s surgery was not per se evidence of wanton or willful disregard of Ms. Ruscitto’s safety. In further support of its decision, the Supreme Court noted that Dr. Jones met with Ms. Ruscitto four times before the surgery and counseled her about the risks of morcellation and morcellation of a malignancy. The Court further found that within a day of the release of the FDA communication, Valley Hospital began discussions around the use of power morcellation and the creation of a revised informed consent form. In other words, Valley Hospital took proactive steps to address the risks associated with the use of a power morcellator, and while the Hospital never officially implemented an informed consent form regarding the use of power morcellators, that did not equate to defendants acting with actual malice or wanton and willful disregard of Ms. Ruscitto’s safety.

The Defendants, including several amicus emphasized the potential adverse effects on healthcare if the bar for punitive damages were lowered and permitted claims to go forward without rigorous adherence to the statutory requirements requiring proof of clear and convincing evidence of willful and wanton conduct. Among other things, allowing a punitive damages claim to proceed to the jury in a case like this could have a chilling effect on physicians’ willingness to offer surgical procedures that have serious, but low probability, risks.

The takeaways for healthcare providers are to do what they are already doing, be proactive about implementing new policies when new information is received from the FDA or other governing bodies, counsel patients about the risks associated with the procedure the patient is undergoing and document those efforts, so that there is a clear record of the steps taken by the provider to ensure that the patient is well informed and the healthcare provider is acting in the patient’s best interest at all times.

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