New DWI Bill¬
Published by New Jersey DWI Lawyer, ,Jeffrey Hark.
On June 7, 2012, Assemblymen Albano, Milam, Amodeo, Mainor, Burzichelli, and Casagrande introduced into the New Jersey State Assembly a new bill which, if passed, would criminalize repeated DWI offenses within a certain time period. Should the new law pass, any person convicted of a second Driving While Intoxicated or refusal to submit to a breathalyzer test violation (a violation of either N.J.S.A. 39:4-50 or 39:4-50.4a) within sixty days of a first such violation shall, in addition to the normal penalties for those convictions, be presumptively guilty of a crime of the fourth degree; an indictable offense. Assemb. B. 3057, 215th Legislature 2:8-13 (NJ 2012). The bill would also require law enforcement personnel to input any summons for DWI into the appropriate record system within three hours of the end of their shift. Id. at 2:15-19.
In addition to introducing the new fourth degree crime, the bill also sets certain standards regarding the effects of a charge for that crime. In every case where a person is charged with this new crime, the court may require the posting of bail up to $10,000. Id. at 2:21-25. Also, during the bail hearing for those charged with this new crime, the court will be required to suspend any “license certificate or any nonresident reciprocity privilege to operate any motor vehicle or motorized bicycle held by the individual charged.” Id. at 2:26-31. The bill would also require the court at the bail hearing to issue a temporary order prohibiting the defendant from obtaining a license to operate a motor vehicle or bicycle in New Jersey. Id. at 2:31-33. The bill, if passed, would take effect immediately. Id. at 2:35.
In their introductory statement, the sponsors of the bill noted the effect the bill would have upon the amount of bail that may be enforced for a crime of the fourth degree and discussed the effects of the bill, but did not elaborate on the bill’s purpose or source. Id. at 2:40-47, 3:1-30. Local reporters have noted, however, that the bill arose out of the case of Anderson Sotomayor, of Vineland, who was charged with five DWIs in thirty-eight days, including an event wherein Sotomayor crashed into a parked police vehicle. See generally New Jersey Press Media, Tougher DUI bill moves forward, COURIER POST ONLINE (June 8, 2012, 1:32 PM), http://www.courierpostonline.com/article/20120608/NEWS01/306080016/Tougher-DUI-bill-moves-forward; Jim Cook, Jr., Criminalizing repeat drunken driving is aim of N.J. Assembly bill after Vineland man’s fifth DWI, NJ.COM (June 8, 2012, 1:32 PM), http://www.nj.com/cumberland/index.ssf/2012/06/nj_assemblymen_sponsoring_bill.html; Tougher DWI bill moves forward, THE DAILY JOURNAL (June 8, 2012, 1:32 PM), http://www.thedailyjournal.com/article/20120608/NEWS01/306080033. The bill was approved by the Assembly Law and Public Safety Committee in a 10-1 vote on Thursday, June 7, 2012. Id. The bill will now move to the full Assembly for consideration, while a sister bill awaits consideration by the New Jersey Senate Law and Public Safety committee. Id.
Wednesday, June 20, 2012
Monday, June 18, 2012
Blog Post: State v. Alnesha Minitee/State v. Darnell Bland (A-70/71-10)Decided June 14, 2012 __ N.J. __ (June 14, 2012)
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
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[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
Posted by: New Jersey Criminal Lawyer, Jeffery Hark
On June 14, 2012, the New Jersey Supreme Court delivered an opinion in State v. Minitee/State v. Brand, in which the Court redefined the standard for exigent circumstances in regards to the vehicle exception to New Jersey’s search warrant requirements. The Court reversed the ruling of the Appellate Division, holding that exigent circumstances can excuse a warrantless search even when that search takes place several hours after the vehicle in question had been recovered and towed to a safe location.
In Minitee, the defendants were convicted for robbery arising out of a string of events that occurred on January 24, 2003. Just after 10:30 p.m. on that date, in Fort Lee, NJ, police officers reported to the KOA spa on an armed robbery call. State v. Minitee, __ N.J. __, A-70-10, Slip. Op. 4 (June 14, 2012). Witnesses indicated to police that red SUV waiting at a traffic light near the spa which they stated contained the armed robbers who had just left. Id. The officer ordered the passengers out of the SUV. Id. Only one of the passengers, a man later identified as defendant Brand, exited the vehicle, dropped a purse and weapon when ordered, and then fled. Id. The officer continued to order the others out of the vehicle rather than chase Brand, but the traffic light changed to green and the SUV drove away. Id.
After the initial officer radioed in an identification of the red SUV, other officers spotted the vehicle and followed it to the end of a dead end street. Upon arriving at the vehicle, police found two women standing next to the vehicle, defendant Minitee and Liakesha Jones. Id. The women told police that they had been carjacked by two black males who had fled on foot. Id. at 5. The officer ordered them to the ground and waited for backup. When backup arrived, officers looked into the open door of the vehicle and saw, in plain view, two rolls of duct tape on the rear passenger seat and floor. Id. Knowing that the robbers had used duct tape to restrain the victims, the officers took Minitee and Jones to police headquarters and had the vehicle towed there as well by an independent towing company. Id.
Several hours passed between the towing of the vehicle and its being searched by the Bureau of Criminal Investigation at police headquarters, and the vehicle was stored in a secure sally port for the intervening period of time. Id. at 6 (The majority opinion states that the search occurred “after some period of time, the exact length of which cannot be determined from the record,” while the dissent frames the same period as “more than three hours”). Investigators searched the van without acquiring a search warrant. Id. at 7. The search of the vehicle produced classified ads from the Star Ledger for massage parlors, which had been marked with either an asterisk, a “no” or “next;” several rolls of duct tape as well as electrical tape, several hats and a mask, a cell phone, handwritten directions, a checkbook in the name of Anthony Herns, and a videotape of a massage parlor robbery from East Brunswick, NJ. Id. at 6.
During the time period between the robbery at 10:30 and the conclusion of the vehicle search at just after 2:00 a.m., multiple pursuits were in progress as police searched for the men who had fled on foot. Id. One of the fleeing men was found and arrested a few miles away in another town, while defendant Bland would not be arrested until months later. Id. at 6-7. Likewise, after his arrest, the Almustafa Baldwin, the fleeing man who had been caught, told police that he had discarded a weapon while fleeing and reneged on a promise to take police to the weapon’s location. As such, Fort Lee Police as well as the police from several neighboring towns, all searched for the weapon through the night. Id. at 7. Testimony also revealed that the Bureau of Criminal Investigation had been required to search several sites during the intervening period including the spa, the area where the gun had allegedly been dropped, another site where a jacket had been dropped by a fleeing robber, and the site where the SUV had been found. Id.
At trial, the judge determined that there were exigent circumstances. As such, the trial court ruled that the warrantless search was proper. On appeal, the Appellate Division held that under State v. Pena-Flores, 198 N.J. 6 (2009), the circumstances were not sufficient to meet the requirements for a proper warrantless search and reversed. The State appealed, arguing that State v. Martin, 87 N.J. 561 (1981) was more analogous to the facts of this case and therefore should control. Id. at 8. Likewise, the state argued that as Pena-Flores announced a new rule, it should not be applied retroactively to actions which occurred in 2003.
The Court, in its analysis, noted that both the Federal and State constitutions guarantee an individual’s right to be secure against unreasonable searches, and that this requirement is so important that warrantless searches are presumed to be invalid. Id. at 11. When such a search is challenged, the State bears the burden of establishing by a preponderance of the evidence that the search fits within the scope of one of the enumerated exceptions. Id. at 12. The Court suggested that there were only two exceptions that could possibly apply here: the search incident to arrest exception and the automobile exception. Id. The Court quickly rejected the search incident to arrest exception, as that only provides the police with the ability to search the area within the immediate grasp of the defendant within which the defendant may grab a weapon or destroy evidence. Id.
Turning to the automobile exception, the Court noted that New jersey does not follow the federal courts in its understanding of the automobile exception. Id. at 13. While federal law requires only that the vehicle be mobile and probably cause exist that the vehicle contains evidence, New Jersey also requires that there be exigent circumstances for the automobile exception to the warrant requirement to apply. Id. The Court noted that the New Jersey Constitution provides greater protections than the U.S. Constitution, and as such the existence of exigent circumstances are an essential element of the exception. Id. at 14.
The Court reiterated that under New Jersey law, the automobile exception requires an unplanned, unforeseen stop; probably cause to believe that the automobile contains contraband or evidence of criminality beyond mere suspicion; and exigent circumstances making it impracticable to obtain a warrant. Id. at 15-16. The Court held that though the factors enumerated in Pena-Flores are illustrative of the sorts of circumstances that could support a finding of exigent circumstances, that list was not exhaustive. Id. at 17. The Appellate Division’s conclusion that the Pena-Flores factors did not support a finding here, then, was not appropriate. Id.
In the instant matter, the Court held that there were other factors, which had not been relevant to Pena-Flores which confronted the Fort Lee Police that made obtaining a warrant impracticable. Specifically, the majority looked to the armed robbery, that two of the perpetrators were on the run and possibly armed, the large multiple-municipality search for the perpetrators, the attempt to find the weapon discarded by Baldwin before an innocent bystander might find it, and the conditions in which the SUV was initially discovered. Id. at 17-18. As the van was found in a dark area on a winter night with poor lighting, and as the van likely held important evidence, the Court argued that the police had no assurances that the fleeing defendants were not in the area with weapons, and as such the decision to tow the vehicle to a safe place would not preclude a finding of exigent circumstances under State v. Martin. Id. 18.
Finding Martin analogous and Pena-Flores easily distinguishable, the Court argued that Martin provided the proper framework for considering this matter. Id. In Martin, the Court had faced a similar situation wherein shortly after an armed robbery, while the perpetrators were at large, police found the vehicle of one of the robbers in a dimly lit area and towed the vehicle to a safe area before searching the vehicle. Id. at 19. The Minitee Court held that just as the towing of the vehicle in Martin was not fatal to the exigent circumstances in that case, nor does the passing of time between the towing of the vehicle and its search in the instant matter. Id. The Court instead held that the circumstances, including the multiple searches, the time of night, the missing weapon, and the multiple demands facing the Bureau of Criminal Investigation, all made the warrantless search of the SUV in this matter reasonable. Id. at 19-20. As only those searches which are objectively unreasonable “run afoul of constitutional principles,” the circumstances in this case are sufficient to meet the requirements of the automobile exception to the warrant requirement. Id. As the search itself was proper, the Court had no need to address the issues of proper standing that the State had argued in regards to defendant Bland. As the search of the SUV met the automobile exception to the warrant requirement, the Court reversed the Appellate Division’s decision and reinstated the convictions of Minitee and Bland.
_________________
[1] The sole dissenting justice, Justice Albin, did not dispute most of the majority’s argument, but instead focused on the three plus hour gap between the recovery of the SUV and its search. As the State, in Justice Albin’s opinion, had to prove that it was impracticable to obtain a warrant and provided no evidence of such, the at least three hour gap should be fatal to a finding of exigent circumstances. Justice Albin otherwise agreed with the majority stating that “I do not doubt that a search of the SUV at the scene or even its immediate search at headquarters, provided that the vehicle was promptly towed, would have fallen within the exigent-circumstances exception to the warrant requirement.” Justice Albin’s opinion at 7.
Sunday, June 10, 2012
Malpractice Reporting Requirements under New Jersey Law
As with federal law, the law of New Jersey requires practitioners and other health care entities to make certain disclosures to government agencies regarding medical malpractice settlements. Under the substantive state law of New Jersey, there are several provisions which impact the reporting of settlements to the State Board of Medical Examiners or other state entity. Under N.J.S.A. 17:30D-17, any insurer or insurance association which is authorized to issue medical malpractice insurance in New Jersey is required to notify the Medical Practitioner Review Panel of any medical malpractice claim settlement, judgment, or arbitration award. In addition, under the requirements of N.J.S.A. 45:9-19.9, insurers or practitioners must notify the review board of not only medical malpractice claim settlements and adjudications, but also any terminations or denial of or surcharge on the medical malpractice liability insurance coverage of a practitioner. That section also allows the panel to receive referrals from the State Board including complaints alleging professional misconduct, incompetence, negligence or impairment from other health care providers or consumers. N.J.S.A. 45-9-19.9(b). These complaints, however, are not mandatory.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8).
The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of New Jersey medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting
of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id.
Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the
practitioner to the State, and ultimately, to the NPDB.
The New Jersey state law also places a burden of informing the state medical board on practitioners themselves. Practitioners are required to update the board as necessary to ensure that their consumer protection profile contains all of the required information. N.J.S.A. 45:9-22.22. While much of that information is biographical, the profile also requires that the practitioner inform the board of a number of pieces of information regarding legal action. First, practitioners must inform the board of any criminal convictions of a sufficient degree (for crimes of the first, second, third or fourth degree) within the most recent ten years. N.J.S.A. 45:9-22.23(a)(6). Second, information must be provided including a description of any final board disciplinary actions within the most recent 10 years, including actions being appealed, though these will be identified as such. Id. at (a)(7). Likewise, the statute requires that the board receive a description of any final disciplinary actions in that same 10 year period from any out of state licensing boards. Id. at (a)(8).
The board must also receive a description of any revocation or involuntary restriction of the privileges at a health care facility for reasons related to a practitioner’s competence, misconduct, or impairment. Id. at (a)(9). Such reportable incidents include non-renewal of staff membership, or the restriction of privileges taken in lieu of or in settlement of disciplinary cases within the past 10 years. The State Board defined such restrictions of privileges actions as “a privileges action must be related to the physician’s professional competence or conduct in a way that adversely affects or could adversely affect the patient’s health or welfare.” See http://www.state.nj.us/lps/ca/bme/reportob/obligations.htm. Such actions must be reported to the board and submitted to the National Practitioner’s Data Bank if the action lasts more than 30 days. Id.
Perhaps the most important reporting requirement in the statute is the requirement that all medical malpractice judgments, arbitration awards, and all settlements within the most recent five years be reported to the board. N.J.S.A. 45:9-22.23(a)(10). The law states that the practitioner must report all settlements of New Jersey medical malpractice claims in which a payment is made to the complaining party within the most recent five years. Id. The reporting
of claims and settlements, though, is handled in a specific manner. Pending claims will not be included in the profile nor disclosed to the public, malpractice claims being appealed shall be identified as such, the payment of claims shall be placed into context based on the number of judgments against the practitioner, and any settlements in the profile will be disclaimed. Id.
Specifically, all settlement information placed into the record shall contain language to the effect that “Settlement of a claim and, in particular, the dollar amount of the settlement may occur for a variety of reasons, which do not necessarily reflect negatively on the professional competence or conduct of the physician (or podiatrist or optometrist). A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.” Id. at (a)(10)(d). One should note, however, that New Jersey law doesn’t have a single cogent definition of “medical malpractice,” so it is not entirely clear which activities, beyond the obvious, would trigger the reporting requirements. As with the federal laws and regulations, the state of New Jersey ultimately requires the reporting of any medical malpractice claim settlement payment and any adverse action taken against the privileges of the
practitioner to the State, and ultimately, to the NPDB.
Wednesday, June 6, 2012
Green v. Bittner, 85 N.J. 1 (1980)
Wrongful Death and Recoverable Damages
In Green v. Bittner, the New Jersey Supreme Court expanded the scope of recoverable damages arising out of a parent’s wrongful death suit in the death of their child. The Court, reflecting upon a case wherein the jury had effectively decided that the value of a young woman’s life to her survivors was effectively zero, held that “when parents sue for the wrongful death of their child, damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child’s anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner.” Finding the jury award to be a miscarriage of justice, the Court held that juries should award damages for both the parent’s loss of companionship when they grow older as well as the advice and guidance that accompanies that companionship. Parents, the court believed, should have the same scope of recovery for the death of a child as that child would potentially have for the death of a parent.
Following in the footsteps of a Michigan Supreme Court case, Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the court embraced the view that “the era of child labor, and hence the fixation with earnings and services was over.” In its place, the Court held that the worth of a child’s life should instead be calculated “according to his function as part of an ongoing family unit.” As such, the court argued, parents, as with children, should be able to recover both for the value of the companionship a child may offer in their dotage as well as the loss of the guidance and advice that would accompany that companionship. In so expanding the recoverable damages, the Court argued that it was simply laying bare what was already the spirit of New Jersey wrongful death law, and simply making that spirit explicit. As such, the Court repeatedly noted that allowing for these types of recovery would not open the door for the recovery of emotional damages, but rather that the type of advice for which one could recover must be of a kind with those that “could be purchased from a business adviser, a therapist, or a trained counselor, for instance. Likewise, the court limited the recovery for companionship to services “substantially equivalent to those provided by the “companions” often hired today by the aged or infirm.”
Because these expanded damages had to be limited to their pecuniary, and not emotional, value, the Court also provided that the use of an expert to quantify these damages would be appropriate and of great aid to a jury. Looking back upon those cases where similar damages were allowed, the Court stated that juries should not be left to conjecture on such matters. While the Court did not mandate the use of such an expert to answer the question of the value of these damages, they did argue that it was “obviously desirable” for plaintiffs to provide a jury with expert guidance on the pecuniary value question.
Ultimately, the Court felt that the dramatic changes in longevity that have occurred since the establishment of the wrongful death cause of action required that parents be allowed to recover for companionship and advice damages. As the Court stated “the proportion of people age 65 and over in our population continues to grow... [the elderly] parents’ need is real, and when a middle-aged son or daughter is not there because of a wrongful death, a prospective pecuniary advantage of the aged or infirm parent has been lost.” Allowing for these damages in the death of a child, as well as expert testimony to guide the jury, the Court reasoned, would allow juries to deliver just compensation to grieving parents in concert with a judge’s charge rather than justice in such matters being dependent upon a jury’s willingness to strive for “some kind of justice despite the judge’s charge.”
Following in the footsteps of a Michigan Supreme Court case, Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the court embraced the view that “the era of child labor, and hence the fixation with earnings and services was over.” In its place, the Court held that the worth of a child’s life should instead be calculated “according to his function as part of an ongoing family unit.” As such, the court argued, parents, as with children, should be able to recover both for the value of the companionship a child may offer in their dotage as well as the loss of the guidance and advice that would accompany that companionship. In so expanding the recoverable damages, the Court argued that it was simply laying bare what was already the spirit of New Jersey wrongful death law, and simply making that spirit explicit. As such, the Court repeatedly noted that allowing for these types of recovery would not open the door for the recovery of emotional damages, but rather that the type of advice for which one could recover must be of a kind with those that “could be purchased from a business adviser, a therapist, or a trained counselor, for instance. Likewise, the court limited the recovery for companionship to services “substantially equivalent to those provided by the “companions” often hired today by the aged or infirm.”
Because these expanded damages had to be limited to their pecuniary, and not emotional, value, the Court also provided that the use of an expert to quantify these damages would be appropriate and of great aid to a jury. Looking back upon those cases where similar damages were allowed, the Court stated that juries should not be left to conjecture on such matters. While the Court did not mandate the use of such an expert to answer the question of the value of these damages, they did argue that it was “obviously desirable” for plaintiffs to provide a jury with expert guidance on the pecuniary value question.
Ultimately, the Court felt that the dramatic changes in longevity that have occurred since the establishment of the wrongful death cause of action required that parents be allowed to recover for companionship and advice damages. As the Court stated “the proportion of people age 65 and over in our population continues to grow... [the elderly] parents’ need is real, and when a middle-aged son or daughter is not there because of a wrongful death, a prospective pecuniary advantage of the aged or infirm parent has been lost.” Allowing for these damages in the death of a child, as well as expert testimony to guide the jury, the Court reasoned, would allow juries to deliver just compensation to grieving parents in concert with a judge’s charge rather than justice in such matters being dependent upon a jury’s willingness to strive for “some kind of justice despite the judge’s charge.”
Please visit the site of New Jersey Criminal lawyer, Jeffrey Hark for more information on criminal matters in NJ and more cases like this.
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