1. JURY AWARDS $11M IN DENTAL MALPRACTICE Case In what may be the largest New Jersey award in a dental malpractice case, a Middlesex County jury on Friday awarded more than $11 million to the family of a man who died hours after having his wisdom teeth removed. Francis Keller, 21, of Woodbridge, suffocated in August 2005 after surgery performed by George Flugrad, a Perth Amboy oral surgeon. The jury found that Flugrad failed to get clearance from Keller's doctor before operating, despite Keller having told Flugrad of a genetic condition that caused swelling in reaction to trauma. The condition caused his throat to close up following the surgery. Source Source dailybriefing@njsbanjldailybriefing.com Daily Briefing 3/09/2009 2. Support Senator Kip Bateman’s proposed law to permit no point unsafe driving if more than 5 years after 2nd no point ticket In a terrible published decision that ignored legislative intent, the Appellate Division in dicta Says All 3rd Offense Unsafe Have 4 Points. Patel v. MVC 403 NJ Super. 373 (App. Div. 2008) The court incorrectly held that New Jersey's unsafe driving statute, N.J.S.A. 39:4 97.2, provides that the Motor Vehicle Commission shall assess the driver points for a third or subsequent offense In this appeal, the court has construed that language to apply only to offenses that occur after the third offense. To correct the errors in this decision, there is a pending bill which revises the imposition of motor vehicle penalty points for operating a motor vehicle in an unsafe manner. The original intent of the unsafe driving statute in 2000 was to clarify that a prosecutor may at any time move before the municipal court to accept a plea to a lesser or other offense than was originally charged, whether or not the plea is to a lesser included offense. The law also provides that the municipal prosecutor may make a motion to amend the original charge. The original law provided if 5 years went by after the 2nd unsafe driving, they would again be eligible again for the no point unsafe driving violation. Under current statute as written, the first two times a person is convicted of operating a motor vehicle unsafely, the person is subject to a monetary fine but no points, while upon the third and subsequent conviction, the person is to be assessed motor vehicle
penalty points in addition to a monetary fine, except that an offense which occurs more than five years after the previous offense shall not be considered a subsequent offense for the purpose of assessing motor vehicle penalty points. Senator Kip Bateman’s bill would modify this structure by separately prescribing that after a second conviction for unsafe operation of a vehicle, penalty points are to be assessed only if the subsequent offense occurs within five years of the third offense or, in the case of an offender with more than three previous convictions, within five years of the immediately preceding conviction. Also, a person who has committed more than three such offenses would be subject to a fine of $500; currently, the fine for fourth and subsequent convictions ranges from $250 to $500. Contact your Senator and Assemblypersons to support this bill 3. Oppose Senate Bill S2504 (Provides for Immediate Suspension of Driver's License under Certain Circumstances) sponsored by Senator CONNORS I agree with the well written strong opposition to this Bill set forth by the Middlesex County Bar Association (“MCBA This legislation would require the Motor Vehicle Commission to immediately suspend the driver’s license of any person who has committed certain traffic violations which result in the death or serious bodily injury of another person. Under current law, the chief administrator is authorized to immediately issue a preliminary suspension of a driver’s license for good cause and without hearing if the person allegedly committed any of the following violations: (1) speeding in excess of 20 miles per hour over the speed limit; (2) drunk driving; (3) reckless driving; and (4) leaving the scene of an accident. This bill would change this law to make it mandatory for the chief administrator to immediately suspend a person’s license under these circumstances. The bill also would expand the violations triggering an immediate driver’s license suspension to include driving in violation of a condition of an examination permit, a special learner’s permit, or a provisional driver’s license, including driving with more than the allowed number of passengers or driving during prohibited hours. It is ridiculous to require a mandatory license suspension if your child is driving two neighbors home from soccer practice, or driving home from midnight mass
I agree with the Middlesex County Bar’s comments that S2504 simply goes too far in removing the aforementioned discretion from the Motor Vehicle Commission. The mere issuance of an allegation of improper driving or the mere fact that an inexperienced driver is involved in a serious accident should not justify automatic and immediate suspension. Too often, the possibility of civil litigation seeking damages will motivate the initiation of allegations which may not ultimately be provable. America and the US Constitution was built on the concept of innocence until proven guilty. To immediately suspend a license, for an indefinite or lengthy period, without a proper exchange of information or where the facts do not demonstrate good cause simply removes the necessary human component to the exercise of the very profound power to remove an individual’s ability to drive a vehicle. The deprivation of a driver’s license impacts employment, depend care, education, access to medical care and other significant components to a productive life. While suspension is no doubt appropriate and necessary in some cases, it is too draconian to compel for every allegation of improper driving involving a death. The current, discretionary approach is better suited to deal with problem drivers. The proposed legislation fails to take a balanced approach in light of the fact that the Commission is dealing with only bald allegations. The Commission should first consider various factors before being required to automatically suspend. For example, the Commission should be allowed to consider the individual’s prior driving history, whether the charges were initiated by a private citizen complainant or a law enforcement agency, whether the allegations remain under investigation or are pending prosecutorial review, and whether the relative proofs of the matter are questionable. A clear proof of significantly improper operation, the Commission should not be required to suspend. Instead, the matter should be left to the courts to address after a full disclosure to the defendant of the results of a completed investigation. There should be not doubt that serious criminal charges will flow from those cases involving reckless conduct leading to injury and death. These offenses carry with them significant penalties with the added protection of due process. To immediately suspend as required in the legislation suggests that the individual presents an immediate, continuing danger on the roadways. We do not see how every case can be found to justify such prejudicial and punitive action. Please contact your Senators and requests that they vote “NO” on S2504.
4. HOSPITAL MUST RESUME SUPPORT FOR PATIENT IN VEGETATIVE STATE A Union County judge has ordered life
support resumed for a patient who has been in a vegetative state for 14 months, restraining a hospital from taking it upon itself to discontinue or suspend treatment. Ruben Betancourt has been unconscious since suffering complications in an operation at Trinitas Regional Medical Hospital to remove a malignant thymus gland. The hospital maintains he does not respond to pain or move his extremities and only makes reflexive eye movements, and
that continuing treatment is inhumane and contrary to standards of care. But Superior Court Judge John Malone ruled lifesupport decisions should be made not by caregivers or courts but in accord with a patient's rights as expressed by a surrogate decisionmaker. He appointed Betancourt's daughter, who wishes to continue life support, as his guardian. This is another example of a reason why people should have a Living Will/ Advance Directive prepared to avoid court battles and provide written expression of your wishes. Source dailybriefing@njsba-njldailybriefing.com Daily Briefing - 03/10/2009 5. Malicious Prosecution Available Against Bank. Brunson v. Affinity Federal Credit Union 402 NJ Super. 430 (App. Div. 2008) 1. A claim of malicious prosecution may be based on allegations that the person who initiated a criminal prosecution did so recklessly without a reasonable basis. 2. In a claim of malicious prosecution, a grand jury indictment is prima facie evidence of probable cause but may be rebutted with evidence that the facts presented to the grand jury are in dispute. 3. A financial institution and its certified fraud investigator have a duty of care to a non customer in whose name and upon whose identification the institution opened an account. That duty included the duty to conduct a reasonable investigation before initiating criminal proceedings against the person whose stolen identity was used to open the account. It is for a jury to determine whether the financial institution and the fraud investigator breached their duty of care and that the breach proximately caused plaintiff's injury.