Frequently Asked Questions About Medical Malpractice Cases & Lawyers
Medical malpractice is the term used to describe a legal action against a doctor, nurse, pharmacist, or other medical professional whose conduct has been alleged to be negligent. The medical professional’s conduct is measured by comparing his or her performance to the “standard of care.” The standard of care is typically defined as the level of competence that would be expected of a doctor, nurse, pharmacist, or other medical professional of average skill and ability practicing within the same specialty as the defendant. Because medical malpractice cases are extremely difficult to litigate, here are answers to frequently asked questions about medical malpractice cases and lawyers.
Question: What damages can I recover for injuries I suffered as a result of
medical malpractice in New Jersey?
Answer: Yes. You can bring a civil lawsuit against the doctor, hospital, or other medical provider for non-economic damages (pain and suffering, loss of enjoyment of life) and economic damages (lost wages, future lost wages, medical expenses).
Question: How much time do I have to file a medical malpractice lawsuit in New Jersey?
Answer: The statute of limitations on a medical malpractice case, for an adult, in the state of New Jersey is 2 years from the time a person knew or reasonably should have known about the alleged malpractice.
Question: Is the statute of limitations for a New Jersey medical malpractice
lawsuit different for a minor?
Answer: Yes. For all medical malpractice claims except injuries that occurred at birth, a minor must file a claim within two years of their 18th birthday (i.e., before their 20th birthday).
Question: What is the statute of limitations in New Jersey where the malpractice
occurred at birth?
Answer: For a minor born before July of 2004, the statute of limitations is within two years of their 18th birthday (i.e., before their 20th birthday). For a minor born after July of 2004, a lawsuit must be filed before their 13th birthday.
Question: What happens if I have a medical malpractice claim in New Jersey but a lawsuit is not filed before the statute of limitations expires?
Answer: You will have waived your right to bring a lawsuit and will be barred from doing so.
Question: Are there any differences in New Jersey when suing a private entity versus
a public (i.e., government) entity?
Answer: Yes. If you are suing a private entity, the time you have to file a lawsuit is dictated by the appropriate statute of limitations. However, if you plan on filing a lawsuit against a public entity, not only do you need to consider the statute of limitations, but a Notice of Tort Claim must also be timely filed. For all tort claims, a Tort Claims Notice must be served upon the public entity within 90 days from the date that you knew or reasonably should have known about the alleged malpractice. The Notice must be served correctly to the proper government agency or authority. Once the Tort Claim Notice is served, a statutory waiting period of six months commences prior to being allowed to bring a civil lawsuit. This period allows the public entity time to evaluate the claim. If a proper Tort Claims Notice is not properly and timely filed, you will be barred from bringing suit against the public entity, even if you are still within the proper statute of limitation time period. There are some exceptions that briefly extend the filing period past the 90 days.
Question: What constitutes medical malpractice?
Answer: A negative outcome of surgery or even a doctor’s inability to discover what ails you is not necessarily always malpractice, although it could be. Medical malpractice occurs when a medical provider deviates from the accepted standard of care for the profession, and that deviation causes injury or death that could and should have been prevented. It must be proven that the medical provider owed you a duty, breached that duty, and as a proximate cause of that breach of the duty owed, you sustained damages.
Question: If I decide that I want to proceed with filing a lawsuit,
how do I pay my New Jersey attorney?
Answer: Almost every attorney in New Jersey will accept the case on a “contingency fee” basis. Under a contingency fee arrangement, an attorney will not be paid unless you recover damages, either by a settlement or jury verdict. If you recover nothing, you are not responsible to pay the attorney. If there is a recovery, the New Jersey attorney will take a specified percentage of the recovery as a fee (dictated by New Jersey statute) and will be reimbursed off the top for any expenses advanced for the litigation. The client is responsible for the payment of all outstanding medical bills and liens regardless of whether there is a recovery.
Question: What is an Affidavit of Merit?
Answer: In a New Jersey medical malpractice case, plaintiffs are required to submit an “Affidavit of Merit” very early in the litigation process to maintain their claim, with the intention being to “weed out” any “frivolous” cases early in the process rather than waste judicial time and resources on such cases. The NJ Affidavit of Merit Statute (N.J.S.A. 2A:53A-27) provides in pertinent part:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person 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 or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
The Affidavit of Merit must state that there exists a reasonable probability that the care, skill and/or knowledge exercised by the defendants in their treatment of plaintiff fell below the standard of care. Additionally, the expert doctor who prepared and executes and Affidavit of Merit must be licenses to practice, and have actively practiced, in the same field and/or specific sub-specialty of medicine of the treating provider who committed the alleged malpractice.
Question: How much is my medical malpractice case worth?
Answer: Every case is different and must be evaluated on its own merits. Factors that will impact the value of a medical malpractice case include, but are not limited to, the nature and extent of your injuries, any prior medical conditions, whether future surgery is foreseeable / necessary, economic losses, your age, and the skill and experience of your attorneys.
If you or a loved one have sustained injuries or wrongful death due to medical malpractice, please contact Mazie Slater Katz & Freeman’s medical malpractice lawyers at our NJ law office. We will respond within twenty-four (24) hours to further discuss your medical malpractice case.