For people who are considering bringing a medical malpractice case in New Jersey, there are several important state laws that could come into play. We'll spotlight a few of those laws in this article.
Statute of Limitations - Two Years
All states have very specific deadlines for filing medical malpractice lawsuits. These time limits, called statutes of limitations, can be somewhat complex because they may contain as many as three or four separate deadlines.
In New Jersey, a lawsuit for medical malpractice must be commenced within two years of the alleged malpractice. If you do not get your medical malpractice lawsuit filed within this time period, you lose your right to sue over the incident unless you fall within one of the exceptions we'll discuss in the following sections.
The Discovery Rule
The discovery rule is an exception to the standard lawsuit filing deadline in situations where the victim could not reasonably have learned that he/she even had a medical malpractice case. In New Jersey, under the discovery rule, the statute of limitations does not begin running until the malpractice victim reasonably becomes aware of the injury, or that the injury is due to the doctor’s fault.
Statute of Limitations for Minor Children
Many states set a different deadline for minors (children under age eighteen) or their parents or legal guardians to file a medical malpractice lawsuit. In New Jersey, the statute of limitations for minor children does not begin running until the child’s 18th birthday, with one exception. A medical malpractice lawsuit for injuries sustained at birth shall be commenced prior to the child’s 13th birthday.
Other Exceptions
In New Jersey, the statute of limitations may be extended if the defendant left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled.
The New Jersey statute of limitations for medical malpractice cases can be found at New Jersey Statutes sections 2A:14-2 and 2A:14-21.
Limits on Damages
Some states have passed laws that place damage caps on medical malpractice cases. In New Jersey, a punitive damages award in a medical malpractice case is limited to the greater of $350,000 or five times the compensatory damages award. There are no other caps on medical malpractice damages.
Shared Fault Rules
In some medical malpractice cases, the defendant may argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor’s instructions. Any such finding will reduce or even eliminate your damage award, depending on state law.
New Jersey follows a “modified comparative negligence” rule. This means, if you are found to be in part negligent with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. However, if the jury finds that your fault is equal to or greater than the defendant’s fault, then you are not entitled to recover any damages, and your case is dismissed.
Expert Affidavit
In New Jersey, the plaintiff’s lawyer in a medical malpractice lawsuit must, within 60 days after the defense attorney files the Answer to the lawsuit, file an expert affidavit of an appropriate physician stating that there exists a reasonable probability that the defendant’s care of the plaintiff fell outside acceptable professional or occupational standards or treatment practices. The physician who provides the affidavit must practice and/or be board certified in the same field or specialty as the defendant. This law can be found at New Jersey Statutes section 2A:53-27.
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Source: http://docphy.com/business-industry/personal-finance/insurance/new-jersey-medical-malpractice-laws-statutory-rules.html
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