Anyone who is considering suing a health care provider for medical malpractice in New Jersey should know that these cases are known for being very complicated and difficult for injured patients to pursue and win. That’s why it’s so important to find the right medical malpractice lawyer to help you navigate these complexities successfully. But it’s also important at the outset to understand some basic rules for these cases—especially the rules that might trip you up before you’ve even started your lawsuit.
This article gives a brief summary of the most important medical malpractice laws in New Jersey that can affect the outcome of your case, including:
A statute of limitations is a law that sets a deadline for filing a lawsuit. In New Jersey, the filing deadline in the statute of limitations for medical malpractice cases is two years “after the cause of any such action shall have accrued” (N.J. Stat. § 2A:14-2 (2021)). Generally, a medical malpractice cause of action accrues—meaning that the “clock” starts running on the statute of limitations—when the alleged medical negligence happened.
However, New Jersey courts apply what’s known as the “discovery rule.” Under this an exception to the standard accrual date, the two-year period doesn’t start until injured patients know—or should know, using reasonable diligence and intelligence—that a health care provider may be at fault for their injuries or prolonged illnesses.
Be aware, however, that if you're relying on the discovery rule, it will be up to you to prove that you couldn't reasonably have known about the potential cause of your injuries earlier than two years before you filed your complaint (the legal document that starts the lawsuit process). If you've missed the deadline, the defendant health care provider will almost certainly ask to have your case dismissed—and the court will almost certainly grant that exception, unless one of the few exceptions to the statute of limitations applies.
Under limited exceptions besides the discovery rule, New Jersey’s statute of limitations is paused (or “tolled,” in legal jargon), effectively extending the deadline for filing a medical malpractice complaint. The most common exception is when the plaintiff was a minor (under the age of 18) at the time the alleged negligence happened. Generally, these injured patients will have two years to file their lawsuits once they turn 18. However, when a lawsuit is based on injuries that an infant sustained at birth, the medical malpractice complaint must be filed before the child’s 13th birthday.
The statute of limitations is also tolled while:
(N.J. Stat. §§ 2A:14-2, 2A:14-21, 2A:14-22 (2021).)
Many states, including New Jersey, have enacted procedural hurdles—usually in the form of a requirement for a certificate or affidavit of merit—intended to weed out frivolous medical malpractice cases early in the lawsuit process. But unlike some other states, New Jersey doesn’t require plaintiffs to submit this support for their lawsuits at the same time that they file their complaints in courts. Instead, within 60 days after a defendant files a response to the complaint, the plaintiff must provide that defendant with an affidavit from a medical expert stating that there’s a “reasonable probability” the defendant didn’t meet the appropriate standard of care with the plaintiff. (In cases involving more than one defendant, the plaintiff must prepare a separate affidavit for each of them.)
The expert submitting this affidavit must meet New Jersey’s requirements for expert witnesses in medical malpractice cases. These qualification requirements are detailed, but generally speaking, the expert should be a licensed physician or other health care professional who has an active practice (or teaching career) in the same specialty as the defendant.
Instead of the affidavit, the plaintiff may submit a sworn statement that that the defendant hasn’t responded (after 45 days) to a proper written request for medical records or other information needed to prepare the expert affidavit.
New Jersey courts have also recognized other limited exceptions to the expert affidavit requirement, including when:
You may request one 60-day extension of the time period for filing the expert affidavit, and the judge will probably grant that request if you have a good reason. But if you don’t submit the affidavit and don’t qualify for any of the exceptions, the judge will dismiss your case “with prejudice”—which means you can’t try again, and your case will be over. (N.J. Stat. §§ 2A:53A-27, 2A:53A-28, 2A:53A-29, 2A:53A-41 (2021).)
Many states have laws that set caps on damages in medical malpractice cases. New Jersey doesn’t limit the amount of compensation that injured patients can receive for their losses, including noneconomic losses like pain and suffering.
However, the state does limit the amount that plaintiffs may receive for punitive damages, which are meant to punish defendants for actions that were due to “actual malice” or “wanton and willful disregard” of the potential harm to others. In these rare cases, New Jersey caps punitive damage awards at $350,000 or five times the award of compensation for the plaintiff’s losses, whichever is greater. But even when a jury awards punitive damages at or below that limit, the judge may reduce or eliminate the award if it’s not reasonable or justified under the circumstances. (N.J. Stat. §§ 2A:15-5.12, 2A:15-5.14 (2021).)
In some medical malpractice cases, the defendant may argue that you are at least partially responsible for the extent of your injuries or other losses—for example, by not following doctor’s orders as to what you should or should not do following surgery. In cases of shared fault, New Jersey follows what’s known as the “modified comparative negligence” rule. This means if the jury finds that you were partly at fault, your award will be reduced or eliminated altogether, depending on how much your own negligence contributed to your losses. Here’s how this works:
If more than one defendant health care provider was at fault for your losses—such as a surgeon and an anesthesiologist—New Jersey law allows you to collect your entire award from any one defendant who is at least 60% responsible for the total damages. However, when one or more of the defendants was an agent of another defendant (such as a surgeon and the hospital that doctor worked for) New Jersey courts apply the rule of “joint and several liability.” This means that you may choose to collect the entire award from one of those defendants, regardless of the allocation of their respective negligence. (N.J. Stat. §§ 2A:15-5.1, 2A:15-5.3 (2021).)