A man that unintentionally shot himself in the mouth after taking the sleeping aid Ambien, has a second shot at suing the physician that prescribed the medication to him, as reported by Asbury Park Press.
In a 6-2 vote the state Supreme Court reinstated R.B.'s medical malpractice lawsuit against Dr. J.R.H., overturning an earlier Superior Court ruling.
Superior Court Judge Steven F. Nemeth had originally dismissed the suit.
R.B. filed the suit against Dr. J.R.H. in 2008.
Per court records, Dr. J.R.H., a Stafford-based physician, had prescribed the Ambien to R.B. for the treatment of insomnia on November 29, 2006. At the same time the doctor also gave R.B. another prescription, Zoloft, to treat minor depression.
Records state that approximately three weeks after seeing Dr. J.R.H., R.B. fell asleep - while he had been in the process of inspecting his gun. He was abruptly awakened when he heard his telephone ring.
As he reached to pick up the receiver with his left hand, forgetting that his right held a gun, he caused the gun's barrel to discharge into his mouth.
Court papers state that R.B. has suffered with the loss of his eyesight - among other injuries - due to the gunshot wound.
Dennis Drazin, R.B.'s attorney, was successful in his argument to the Supreme Court to reinstate the suit based on the fact that a hearing on the sufficiency of an affidavit he had produced - from another physician - would support his client's claim of negligence.
It is state law that anyone that files a claim of medical malpractice must produce an affidavit - from a physician with equivalent credentials - that supports the claim and attests that the doctor being sued fell outside of acceptable professional standards.
In R.B.'s case, he had originally produced affidavits from a psychiatrist and later, a specialist in emergency medicine. What he needed was an affidavit from a family practitioner.
Chief Justine Stuart Rabner, along with Justices Virginia Long and Jaynee LeVecchia, were included with Justice Barry T. Albin's written opinion that Judge Nemeth failed to hold a hearing to address the deficiencies that the affidavits presented.
The court then remanded the case to trial court, to hold the hearing, and give R.B. another chance to present the correct affidavit from the proper source.
Dr. J.R.H.'s attorney, John J. Bannan said, "The Supreme Court is giving the plaintiff a second bite at the apple to accomplish what he didn't do to begin with. An affidavit of merit is supposed to be something a plaintiff files shortly after an answer by the defendant is filed. It's supposed to show there is some minimum basis for this action.
The Supreme Court is not saying that this case has merit.
It's saying, we're going to give the plaintiff one more chance ... to prove that this case has merit."
Two Justices, Helen E. Hoens and Roberto A. Rivera-Soto, filed dissenting opinions. Their argument, though the minority, was that R.B. had all of the information and knew what he had to do to comply with state law - he simply failed to do so.
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