New Jersey Medical Malpractice Laws

There is a certain level of trust that a patient places within their healthcare provider that is hard to duplicate. Patients allow their healthcare providers to see their medical history, learn about their current and ongoing physical ailments and perform procedures that often require them to put their life in the hands of their physician. When this level of trust is severed due to medical malpractice, it can be difficult to know what steps need to be taken in order to seek a legal remedy that is just.

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in your state has created a finite period of time in which you are permitted to bring a claim.

In addition, the law in New Jersey has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in New Jersey; however, the best course of action to take if you are considering doing so it to consult with an experienced medical malpractice attorney licensed in New Jersey.

Suing for Medical Malpractice in New Jersey

If you were injured due to the negligence of a health care provider, you may be in a position to file a medical malpractice lawsuit. The law in New Jersey places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in New Jersey allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, unlike many other states, the law in New Jersey does not cap those damages.

How long do I have to file a medical malpractice case in New Jersey?

In order to ensure that medical malpractice claims are brought within a reasonable amount of time, the law in New Jersey requires that you file your claim of medical malpractice within two years from the act or omission that gave rise to your injury. [1] However, if your injury could not have been reasonably discovered within the two-year period, the statute of limitations will not begin to run until discovery. [2] The idea behind the time extension related to foreign objects left in the body is that it would be unfair to hold you responsible for discovering an item that you really have no way of identifying.

If you file your medical malpractice lawsuit after the applicable statute of limitations have expired, it is likely that your case will be dismissed and you will be left without a legal recourse for the injury you incurred as a result of medical negligence.

In New Jersey Medical Malpractice Cases, who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

The law in New Jersey states that any health care or medical care professional can be held liable for medical negligence. This includes either an individual or an entity, as long as they are licensed to provide medical services. You may, therefore bring a claim against hospitals, hospice centers, doctors, dentists, medical technicians, and even certified social workers if you feel their professional negligence caused your injury. [3]

What if I am partially to blame? Can I Still Recover Money for New Jersey Medical Malpractice?

New Jersey, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, New Jersey is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [4]

In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why New Jersey decided to adopt a modified system.

Are there medical malpractice recovery caps in New Jersey?

Upon the conclusion of a successful medical malpractice claim, a monetary award, known as damages, will be awarded to you by the court. The law in New Jersey has established different types of damage awards that you may receive:

Compensatory Damages are awarded for the purpose of helping to put a person back in the position which existed before their injury occurred. Under the compensatory damages umbrella are two sub-categories; General Damages and Special Damages.

General Damages link the defendant’s conduct with your injury. General damages can include an award for pain and suffering; mental anguish; lowered quality of life; disfigurement and impairment.

Special Damages are damages that compensate you for financial losses suffered as a result of the defendant’s actions. Special damages may come in the form of an award for covering the cost of surgery; lost wages and future earning capacity; past medical expenses and future medical expenses.

Punitive Damages do not compensate you for your injury. Instead, punitive damages are intended to punish the defendant and deter future behavior similar to that of the defendant. Punitive damages are not to be awarded as a routine matter in every case; they are to be awarded only in exceptional cases where the behavior of the defendant was especially egregious or outrageous. If punitive damages are ultimately awarded, they will be limited to the greater of five times the amount of compensatory damages or $350,000. [5]

The law in New Jersey is friendly to medical malpractice victims in that it does not cap the amount of compensatory damages that you may receive in a medical malpractice action.

Expert witness reporting and testimony

An expert witness is a person who specializes in a subject and who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

The testimony of an expert witness is of utmost importance in New Jersey because in order to have a successful outcome, you must prove:

• There was a breach of the standard of care owed by the physician by an act or omission and that caused the plaintiff’s injury; and
• The breach of the requisite standard of care was the proximate cause of the injury

In New Jersey, within 60 days of beginning your medical malpractice lawsuit, you must file an affidavit which states that an expert believes that reasonable probability exists that the care, skill, or knowledge exercised by the defendant exercised in during your treatment fell outside the acceptable professional standards or treatment practices. [6] You must make certain that the medical expert you have chosen to provide the affidavit meets the requirements of a person who provides expert testimony. The law in New Jersey requires that doctors called as expert witnesses on a patient’s behalf hold the same credentials as the physicians accused of making a mistake.

Are some parties immune from medical negligence cases?

The law in New Jersey, more specifically the New Jersey Tort Claims Act, provides a waiver of the state’s sovereign immunity. This means that the state may be sued for torts, such as personal injuries, caused by the negligent or wrongful acts or omissions of state employees while acting within the scope of employment to the same extent that a private person may be sued. However, New Jersey has waived sovereign immunity for itself and its counties, municipalities, and other political subdivisions to the extent set forth in the New Jersey Tort Claims Act. [7]

However, public entities retain their immunity from liability for:

• failure to provide a medical facility or mental institution
• failure to provide sufficient equipment, personnel, or facilities in a mental institution or medical facility
• a decision to perform or not to perform any act to promote the public health of the community
• failure to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety to himself or others, unless such examination or diagnosis was for the purpose of treatment
• failure to diagnose that a person is afflicted with a mental illness or is a drug- dependent person
• the decision whether to confine a person for mental illness or drug dependence, including the terms and conditions of such confinement
• injury caused by an escaping or escaped person who had been confined for mental illness or drug dependence. [8]

Settling medical malpractice cases in New Jersey

The law in New Jersey requires the use of non-binding arbitration as a form of alternative dispute resolution when the damages asked for is $20,000 or less. [9]

Arbitration is a hearing where each party appears, all witnesses are heard, and testimony is under oath. Once each side has made their case to an impartial arbitrator, the arbitrator will make a decision based on law to provide a resolution to the dispute. The arbitrator’s decision is not binding unless both sides agree in writing to a binding decision. If the arbitrator finds for the defendant, you are permitted to proceed to trial.

Litigating medical negligence cases in New Jersey

A claim for medical malpractice in New Jersey begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and the relief that is being sought.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the lawsuit going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

In New Jersey, a civil action commences with the filing of the complaint with the appropriate court.

A complaint should include:

• A statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the plaintiff is entitled to relief,
• A demand for the relief to which the plaintiff considers himself entitled

Within 10 days of the filing of the complaint, the plaintiff will receive a Track Assignment Notice (TAN). A case is assigned to one of four tracks depending on the type of case and the length of time it should take to complete discovery. The complaint and TAN must be served with the summons on all named defendants. The summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. The defendants must then file an Answer which admits and/or denies statements made in the complaint. The defendant must file an answer to the complaint along with the appropriate filing fee within 35 days after service of the complaint.

The Answer should include:

• Reasons for denial of the relief sought by the plaintiff
• Affirmative defense
• Affirmative relief sought by the defendant
• Whether there will be a counter-claim, set-off, cross-claim, or third-party claim
• The address of the defendant or their attorney

After the complaint is properly filed with the court, the litigation process has begun from a statute of limitations standpoint.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is the formal process of exchanging information between parties about the witnesses and evidence that will be presented at trial.

The discovery process can include requests for the production of medical records, physician notes, the taking of depositions, interrogatories, and requests for admission. Essentially, the discovery process can include almost anything that can help bolster a legal argument.

A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial. In most cases, the plaintiff, as well as all named defendants, may be deposed prior to trial in addition to certain witnesses and, in the case of a medical malpractice claim, doctors. The actual deposition involves a question and answer session between opposing counsel and the involved parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary.

Interrogatories are a set of written questions which set forth the facts of your claims. The questions are served upon the other side and they must be answered under oath.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, many cases settle prior to going to trial. Settlement can take place during mandated alternative dispute resolution sessions. However, if the parties are unable to come to a settlement agreement during mediation, arbitration or neutral evaluation, trial is likely the next step in the litigation process.

Trial

If the parties are unable to reach a settlement at any point, the case will go to trial.

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of New Jersey: a judge or a jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby each side’s attorney asks potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, a jury of six, or sometimes 12, will be impaneled. [10]

In New Jersey, a person is considered to be qualified to be a juror if they are:

• A citizen of the United States
• At least 18 years of age
• Able to understand the English language in a written, spoken, or manually signed mode
• Able to receive and evaluate information such that the person is capable of rendering satisfactory juror service.

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury and likely that the plaintiff significantly contributed to their own injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court to a higher court. An appeal allows the higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

In New Jersey, if either party wishes to appeal a decision rendered by a lower court, the appeal must be filed within forty-five (4) days. [11]

How to find the best New Jersey Medical Malpractice Lawyer for your case

If you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring strong legal representation can help to take your mind off of the legalese so that you can focus on healing and moving forward with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and monetary losses you have likely endured. To enhance the chances that you will be compensated, it is important that you find legal counsel that fits your needs. Asking the right questions during the interview process can mean the difference between your case progressing smoothly versus having a disastrous outcome.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

Medical malpractice cases may be paid for in one of two ways; an hourly rate or a contingency fee. Under an hourly agreement, an attorney will charge you an agreed upon rate per hour worked on your case. Meanwhile, a contingency fee agreement does not require an hourly payment. Instead, the attorney will be paid a percentage of the damages you are ultimately awarded by the court. The law in New Jersey does not limit the fees that an attorney may recover in a medical malpractice lawsuit. Make sure to ask prospective legal representation about their fee and what you can expect to pay.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Some notable medical malpractice law decisions from New Jersey

These cases represent awards to plaintiffs in medical malpractice cases in New Jersey. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Detached Retina

The plaintiff filed a medical malpractice lawsuit against the defendant retinal surgeon based upon claims that the surgeon negligently delayed laser photocoagulation on the plaintiff’s left eye after suffering a torn retina. The plaintiff later suffered retinal detachment.

At court, it was argued that had the defendant performed the prophylactic laser surgery, the retinal detachment would have been prevented. It was also argued that the defendant improperly failed to inform the plaintiff of the urgency and danger posed in delaying the laser surgery.

By the time the plaintiff arrived for the laser procedure it was discovered that the original torn retina had become detached at the very location originally discovered to be damaged, and two additional tears had occurred. As a result, a simple office procedure involving the laser could no longer be performed and the plaintiff needed a scleral buckle operation to reattach the retina to the back of the eye.

The plaintiffs claimed at trial that the defendant was negligent in the performance of the scleral buckle operation basing the allegation on the fact that the defendant applied excessive cryopexy to the left retina, which caused an inflammatory process known as proliferative vitreoretinopathy (PVR). This caused the plaintiff to later develop severe double vision, a permanent dilated pupil, loss of blood supply to the iris, and deteriorating vision with a continuing inflammatory process, which caused the retina to continue to separate and detach. The plaintiff completely lost his sight in and developed a shrunken eye.

The jury agreed with the plaintiffs and awarded $17 million in damages.

Item Left in Body

The plaintiff argued at trial that the defendants negligently failed to properly count the laparotomy pads after an abdominal hysterectomy was performed to treat endometriosis.

The plaintiff further argued that one of the defendants, a surgeon, negligently failed to read the post-op x-ray which he ordered and contended that he had done so, he would have seen the radio-opaque pad. The radiologist, who was also named as a defendant, had issued a report in which he characterized the pad as a drain. The surgery did not entail the use of a drain.

The plaintiff argued that another defendant, an ob/gyn, negligently failed to read this report and maintained that had he done so, he would have realized that the mistaken description of a drain referred to the pad.

The experts provided by the plaintiff agreed that if the pad had been removed within a week, no adhesions would have formed and that she would not have required surgical intervention other than for the removal of the pad.

An award of $386,500 was awarded to the plaintiff.

Footnotes

[1] N.J. Stat. Ann. § 2A:14-2

[2] N.J. Stat. Ann. § 2A:14-2

[3] N.J. Stat. Ann. § 13:45E

[4] N.J. Stat. Ann. § 2A:15-5.1

[5] N.J. Stat. Ann. § 2A:15-5.14(b)

[6] N.J. Stat. Ann. § 2A:53A-27

[7] N.J. Stat. Ann. § 59:1

[8] N.J. Stat. Ann. §§ 59:6-2

[9] N.J. Stat. Ann. § 2A:23A-20

[10] New Jersey Courts Rule 1:8(b)

[11] New Jersey Courts Rule 2:4-1(b)