Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
New Jersey caps punitive damages in medical malpractice cases to the greater of $350,000 or five times the amount of compensatory damages awarded.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. New Jersey follows a modified rule of joint and several liability. If a party is determined to be sixty percent or more responsible for the total damages awarded, that party may be held liable for the entire amount of the award, but any other defendant may be held liable for a percentage of the damages only to the extent of their degree of fault.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In New Jersey, evidence of collateral source payments is inadmissible at trial, but may be introduced after verdict to reduce the damages awarded to the amount actually paid.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In New Jersey the statute of limitations for a medical malpractice case is two years from the date when the cause of action accrues. For minors injured at birth, a medical malpractice action must be commenced prior to the child's thirteenth birthday.
Additional rules affecting malpractice litigation in the State of New Jersey include:
Limits on Attorney Fees
New Jersey limits attorney fees in medical malpractice cases to an amount not exceeding one third of the first $500,000 recovered, thirty percent of the next $500,000, twenty-five percent of the next $500,000, twenty-five percent of the next $500,000, and a reasonable fee on any amount recovered in excess of $2,000,000. If the malpractice award is for the benefit of a clint who was a minor or who was mentally incompetent and the time the contingency fee agreement was entered, the same limits apply except that the legal fee is capped at twenty-five percent for any amount recovered by settlement without trial.
Alternative Dispute Resolution
In New Jersey, most personal injury cases, including malpractice cases, must be submitted to arbitration if the trial court determines that the amount of damages in controversy is in the amount of $20,000 or less. Arbitration proceedings are confidential, and may not be used or referenced at a trial de novo by any of the parties, except in relation to the reduction of any statutory assessments made for costs of the trial de novo.
In a medical malpractice case, within thirty days of the close of discovery, the judge presiding over the litigation or the judge's designee must determine whether referral to complementary dispute resolution might encourage early disposition or settlement of the case. Complementary dispute resolution is governed by Rule 1:40-1 of the Rules Governing the Courts of the State of New Jersey, which allows for evaluative, facilitative and hybrid forms of dispute resolution. If the court finds that it would be helpful, the court must refer the matter to complementary dispute resolution.
Affidavit of Merit Rules
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In a New Jersey medical malpractice action, within sixty days of the filing of the defendant's answer to the complaint, the plaintiff must serve upon each defendant an affidavit of a qualified, licensed expert attesting that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards or treatment practices. Upon a showing of good cause, the court may grant one extension for the filing of the affidavit, with the extension not to exceed sixty days. The failure to file a required affidavit is deemd to be a failure to state a cause of action.
An affidavit is not required if the plaintiff instead files a sworn statement attesting that the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit, despite the making of a proper, timely request for those records.
Medical Expert Witness Restrictions
In order to testify as an expert in a medical malpractice action, New Jersey requires that the proposed expert witness be licensed within the United States.
If the defendant against whom the expert's testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, and the specialty or subspecialty is relevant to the complaint, then at the time of the occurrence underlying the malpractice claim the proposed expert must have specialized in the same specialty or subspecialty; and if the defendant is board certified and the board certification is relevant to the complaint, then the proposed expert must either be a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action, or be a similarly board certified specialist or subspecialist in the same specialty or subspecialty and, during the year immediately preceding the date of the occurrence underlying the claim, must have devoted the majority of his time to either active clinical practice in the health care profession, and specialty or subspecialty, in which the defendant is licensed, or the instruction of students in an accredited medical or health professional school, accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and in the specialty or subspecialty, or both. A court may waive the requirement that the proposed expert be an equivalent specialist or subspecialist if the moving party demonstrates to the court that a good faith effort was made to identify a board certified expert, and the court finds that the proposed expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or teaching of medicine within the applicable area of practice or a related field of medicine.
If the party against whom the proposed expert's testimony is offered is a general practitioner, then during the year immediately preceding the date of the occurrence underlies he claim, the proposed expert must have devoted a majority of his professional time to active clinical practice as a general practitioner or to active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or to the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or both.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.