New Jersey Medical Malpractice Law - An Overview

July, 2004

Important Notice: The following overview of New Jersey's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of New Jersey's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of New Jersey.

What Is Medical Malpractice
Limits on Malpractice Damages
Collateral Source Rule
Rules for Expert Witnesses
Joint and Several Liability
Statute of Limitations
Limits on Attorney Fees
Additional Rules
Why Use A Malpractice Lawyer

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

Misdiagnosis of, or failure to diagnose , a disease or medical condition;
Failure to provide appropriate treatment for a medical condition;
Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

Punitive damages are capped at 5 times actual damages or $350,000.00, whichever is greater.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in New Jersey there is mandatory offset for payments from collateral sources, with the exception of workers' compensation benefits and life insurance proceeds.

Rules for Expert Witnesses

Expert witnesses must be licensed and practicing in the same specialty as the defendant, and must be authorized to administer the treatment at issue in the malpractice litigation.

Joint and Several Liability

Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. In New Jersey, unless a defendant is more than 60% at fault for the cause of the plaintiff's injury, each defendant is liable for damages only in an amount proportionate to that defendant's fault.

Statute of Limitations

Medical malpractice actions must be commenced within two years from the date of the act or omission giving rise to the complaint, or two years from the date the injury was or reasonably should have been discovered. Under New Jersey law, except in cases of medical malpractice resulting from birth injury, the statute of limitations begins to run on a minor's eighteenth birthday. Any claim for malpractice based on birth injury must be filed by a minor's thirteenth birthday.

Limits on Attorney Fees

Attorney fees are limited to 1/3 of the first $500,000.00 recovered, 30% of the next $500,000.00, 25% of the next $500,000.00, and 20% of the next $500,000.00. Attorney fees are limited to 25% for actions where the plaintiff is a minor or is incompetent.

Additional Rules

There is voluntary arbitration of medical claims by written agreement, if a claim is less than $20,000.00. There is voluntary arbitration of claims in excess of $20,000.00.

An affidavit of consultation of expert must be filed within sixty days of the filing of the complaint.

Prior to trial, but not less than thirty days after the close of discovery, the judge may refer a malpractice case to alternative dispute resolution.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical Malpractice

Injured by a medical mistake? Talk to a medical malpractice lawyer for free.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

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