New Jersey Medical Malpractice Laws

Understand New Jersey's "affidavit of merit" requirement for medical malpractice lawsuits, the statute of limitations filing deadline, and more.

By , J.D., University of San Francisco School of Law

Compared with other injury-related legal claims, a medical malpractice lawsuit is usually a fairly complex undertaking. That's true in every state, not just New Jersey. Legal issues and medical evidence can get very complicated very quickly in these cases, and the plaintiff (the injured patient, or his or her legal representative) needs to understand the special procedural rules and compensation limits that come into play. In this article, we'll look at some key New Jersey medical malpractice laws, including the "affidavit of merit" requirement and the legal deadline for filing one of these lawsuits.

New Jersey's Medical Malpractice Statute of Limitations

New Jersey, like a number of states, has a broad injury-related statute of limitations that also applies to medical malpractice lawsuits.

In case your legalese is rusty, a "statute of limitations" is a law that sets a time limit on a prospective plaintiff's right to file a lawsuit after suffering some kind of harm. If you try to file the case after the deadline has passed, the court will almost certainly throw it out. In a malpractice case, usually what happens is the doctor or health care entity you are trying to sue points out that the statutory deadline has passed and files a motion to dismiss the case. If the judge agrees and grants the motion, that's the end of the story. So it's crucial to pay attention to the statute of limitations as it applies to your case.

What does the law say in New Jersey? The standard statute of limitations as it applies to a medical malpractice lawsuit gives you two years to get your lawsuit filed, starting from the date the the plaintiff (the person suing) suffered harm as a result of the defendant's negligence. That typically means two years from when the alleged medical error occurred.

But in some cases, the "clock" for the statute of limitations might start running at a later date. That's because New Jersey courts use what's known as the "discovery rule" in medical malpractice cases. Under this rule, the filing deadline is two years after you discovered—or could reasonably have been expected to discover—that a doctor or other health care provider could be responsible for your harm. You should know, however, that if you're relying on the discovery rule, you will have the burden of proving that you couldn't have known about the alleged malpractice when it happened.

New Jersey also has a special filing deadline for medical malpractice cases involving injuries that happened when a baby was born. In these cases, the plaintiff must file the lawsuit before the child's 13th birthday. (Learn more about birth-related medical malpractice.) But in other cases where the patient was a minor (younger than the age of 18) when the medical error happened, the lawsuit may be filed within two years after patient's 18th birthday.

You can find these laws at New Jersey Statutes sections 2A:14-2 and 2A:14-21.

The "Affidavit of Merit" in New Jersey Medical Malpractice Claims

Whenever a medical malpractice lawsuit is filed in New Jersey's civil court system, New Jersey Statutes section 2A:53A-27 says that, within 60 days after the defendant health care provider has filed a response to the lawsuit, the plaintiff must provide the defendant with an "affidavit of merit."

In this affidavit, an "appropriate licensed person" (a doctor in the same field as the defendant, for example) must declare under oath that there is "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 or occupational standards or treatment practices."

In other words, the expert must state a belief that the defendant treated the patient in a manner that did not meet the appropriate medical standard of care under the circumstances, and that there is a valid basis for filing this medical malpractice lawsuit.

A few more important details on the "affidavit of merit" in New Jersey:

  • The plaintiff can get an additional 60 days to provide the affidavit of merit, as long as there is "good cause" for an extension.
  • A separate affidavit needs to be provided to each health care provider being sued in the medical malpractice lawsuit.
  • An affidavit may not be required in rare cases where no expert testimony or specialized knowledge would be needed to make a decision about the standard of care; in other words, jurors would be able to rely on common knowledge to look at the facts and decide whether the defendant was negligent and caused the patient's injuries. (An obvious example would be when a doctor leaves a surgical tool in a patient's body.)
  • Failure to provide an affidavit of merit can lead to the dismissal of a medical malpractice lawsuit "with prejudice," meaning that the plaintiff won't be able to try again. However, if a plaintiff has provided an affidavit that doesn't meet every detail of the requirements but "substantially" complies with the law, the judge might dismiss the case without prejudice, in which case the plaintiff will have the opportunity to fix the problems.

New Jersey Caps Only Punitive Damages in a Medical Malpractice Case

A lot of states have laws on the books that "cap" medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice. Some of these laws apply to the overall award, while many apply only to noneconomic damages like pain and suffering, loss of enjoyment, and stress.

So far, New Jersey has not set an upper limit on compensatory damages (financial losses as well as noneconomic damages) in medical malpractice cases. But in any injury case, New Jersey Statutes section 2A:15-5.14 limits punitive damages to $350,000 or five times the amount of compensatory damages, whichever is greater.

Keep in mind that punitive damages are pretty rare in a medical malpractice lawsuit, and in New Jersey they require proof that the defendant acted with "actual malice" or a "wanton and willful disregard" for any resulting harm to someone else.

If you're looking for more specifics on New Jersey's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.

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