In NJ, a physician who fails to have medical malpractice insurance and then commits medical malpractice cannot be sued on the basis of his failure to have the proper insurance. He (or she) also cannot be sued for failing to tell his patient that he is not insured, as it does not violate the “Informed Consent Doctrine.” This law comes as a result of a case released on 09/29/15 by the New Jersey Supreme Court. Jarrell v. Kaul. Nonetheless, the Court did state that an injured claimant can bring a claim against a health-care facility (such as a surgery center) that fails to make sure the physicians they hire have medical malpractice insurance (or at least have obtained a letter of credit).
The Court held:
“In summary, we conclude that N.J.S.A. 45:9-19.17 does not create a direct action by an injured patient against a physician who does not possess medical malpractice liability insurance or a suitable letter of credit. Moreover, failure to comply with the statutory liability insurance mandate does not give rise to an informed consent claim. The inability to recover a judgment is not the injury contemplated by the informed consent doctrine. 44 Finally, we hold that a cause of action for negligent hiring may be asserted against a health care facility that grants privileges to a physician who has not complied with the statutorily required insurance. A health care facility that grants privileges to physicians to use its facility has a continuing duty to ensure that any physician granted privileges maintains the required insurance, which is a condition of obtaining and maintaining a license to practice medicine in this State.”
Incidentally (or perhaps not so incidentally), the doctor who was sued in this case had his license revoked by the state Board of Medical Examiners for performing spinal surgeries without the proper training. According to a report in the Telegraphof London, in 2001, the doctor was convicted of negligent manslaughter after a woman he put under sedation during a tooth extraction went into cardiac arrest and died six days later. His medical license was later revoked in the United Kingdom, the newspaper said.