2053 Woodbridge Avenue - Edison, NJ 08817

Wednesday, March 11, 2009

NJ Laws Email Newsletter E298

NJ Laws Email Newsletter E298

Kenneth Vercammen, Attorney at Law

March 11, 2009

In This Issue:

1. Jury Awards $11M in Dental Malpractice Case.
2. Support Senator Kip Bateman's Proposed Law to Permit No Point Unsafe Driving
if More than 5 Years After 2nd No Point Ticket.
3. Oppose Senate Bill S2504 (Provides for Immediate Suspension of Driver's License
Under Certain Circumstances) Sponsored by Senator Connors.
4. Hospital Must Resume Support for Patient in Vegitative State.

5. Malicious

Prosecution Available Against Bank.

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Greetings Kenneth Vercammen,

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
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: Daily Briefing - 3/09/2009
dailybriefing@njsba-njldailybriefing.com [mailto:dailybriefing@njsba-njldailybriefing.com]

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

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 to this no point ticket.

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. I agree with the Bar
Association that 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 S-2504.

4. Hospital Must Resume Support for Patient in Vegetative State Where There was
No Living Will Advance Directive.

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 life-support decisions should be made not by caregivers or courts
but in accord with a patient's rights as expressed by a surrogate decision-maker.
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: Daily Briefing - 03/10/2009
dailybriefing@njsba-njldailybriefing.com [mailto:dailybriefing@njsba-njldailybriefing.com]

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.

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All materials Copyright 2009. You may pass along the information on the NJ Laws

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