New Jersey Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice action, like other personal injury actions, must be brought within two years from the date the cause of action accrued. N.J. Stat. Ann. § 2A:14-2 (West 1987). New Jersey courts have read a discovery rule into this statute, holding that a cause of action does not accrue so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault of an identifiable person. Savage v. Old Bridge-Sayreville Medical Group, 260 N.J. Super. 417, 616 A.2d 1307 (App. Div. 1992). If, at the time the cause of action accrued, the claimant was under the age of 21 or insane, the time does not begin to run until the disability is removed. N.J. Stat. Ann. § 2A:14-21 (West 1987).

Wrongful death actions must be brought within two years from the date of death. N.J. Stat. Ann. § 2A:31-3 (West 1987).

Contributory or Comparative Negligence

New Jersey has adopted the doctrine of modified comparative negligence. N.J. Stat. Ann. § 2A:15-5.1 (West 1987). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his percentage of negligence. Id.

Joint and Several Liability

In a negligence action in New Jersey, the trier of fact must determine each party’s negligence as a percentage of the combined negligence of all parties. N.J. Stat. Ann. § 2A:15-5.2 (West Supp. 1997). Any defendant whose negligence is 60 percent or more is jointly and severally liable for the claimant’s entire damages. N.J. Stat. Ann. § 2A:15-5.3 (West Supp. 1997). One whose negligence is less than 60 percent is only severally liable for that portion of the claimant’s total damages that is equal to his percentage of negligence. Id.

Contribution

The Joint Tortfeasors Contribution Law provides for contribution when one tortfeasor has paid more than his pro rata share of a judgment. N.J. Stat. Ann. §§ 2A:53A-1 to 2A:53A-5 (West 1987). The courts have held that the effect of comparative negligence on contribution is to change the measure from pro rata share to percentage of negligence. Dunn v. Praiss, 139 N.J. 564, 656 A.2d 413 (1995).

Vicarious Liability

While New Jersey courts generally hold that a hospital is not liable for the negligent acts of non-employed physicians, the doctrine of ostensible or apparent agency has been applied where the court thought it would be natural for a patient to assume that his treating physicians were employees of the hospital. Arthur v. St. Peters Hospital, 169 N.J. Super. 573, 405 A.2d 443 (App. Div. 1979).

Expert Testimony

In a medical malpractice case based on facts occurring on or after June 29, 1995, within sixty days of the commencement of the action plaintiff must file an affidavit by an appropriate licensed person stating that there exists a reasonable probability that the care, skill, or knowledge exercised in the treatment fell outside acceptable professional standards or treatment practices. N.J. Stat. Ann. § 2A:53A-27 (West Supp. 1997). Expert testimony is necessary proof in a medical malpractice action, unless the matters alleged are within a layman’s common knowledge. Rosenberg v. Cahill, 99 N.J. 318, 492 A.2d 371 (1985).

Damage Caps

For actions filed on or after October 27, 1997, no defendant is liable for any punitive damages in any action for an amount in excess of five times the liability of that defendant for compensatory damages, or $350,000, whichever is greater. N.J. Stat. Ann. § 2A:15-5.14(b) (West Supp. 1997).

Statutory Cap on Attorneys’ Fees

New Jersey has prescribed limits on attorneys’ contingent fees for many years. Under the latest schedule, effective September 1, 1996, those fees may not exceed the following amounts: (a) 33 1/3 percent of the first $500,000, (b) 30 percent of the second $500,000, (c) 25 percent of the third $500,000, (d) 20 percent of the fourth $500,000, and (e) a reasonable amount approved by the court for the excess over $2 million. N.J. Ct. R. § 1:21-7 (West Supp. 1997). If the claimant is a minor or incompetent, no fee may exceed 25 percent of any pre-trial settlement. Id.

Periodic Payments

New Jersey does not provide for the use of periodic payments to satisfy judgments in medical malpractice actions.

Collateral Source Rule

In New Jersey, collateral benefits received by the claimant must be deducted from the claimant’s recoverable damages. N.J. Stat. Ann. § 2A:15-97 (West Supp. 1997). Any amounts paid for such benefits by the claimant or the claimant’s family must be added to such damages, however. Id.

Pre-Judgment Interest

New Jersey requires the award of interest calculated from the date the action was commenced or six months from the time the cause of action accrued, whichever is later. The rate floats on the basis of an index and was equal to 5.5 percent in 1997. N.J. Ct. R. § 4:42-11(b) (West Supp. 1997). In exceptional cases, the court may suspend the accrual of such interest. Id.

Patient Compensation Funds and Physician Insurance

New Jersey has not established a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.

Immunities

New Jersey has waived sovereign immunity for itself and its counties, municipalities, and other political subdivisions to the extent set forth in the New Jersey Tort Claims Act. N.J. Stat. Ann. § 59:1-1 et seq. (West 1992 & Supp. 1997). Public entities retain their immunity from liability for, inter alia, the following: (1) failure to provide a medical facility or mental institution; (2) failure to provide sufficient equipment, personnel, or facilities in a mental institution or medical facility; (3) a decision to perform or not to perform any act to promote the public health of the community; (4) failure to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety to himself or others, unless such examination or diagnosis was for the purpose of treatment; (5) failure to diagnose that a person is afflicted with a mental illness or is a drug- dependent person; (6) the decision whether to confine a person for mental illness or drug dependence, including the terms and conditions of such confinement; and (7) injury caused by an escaping or escaped person who had been confined for mental illness or drug dependence. N.J. Stat. Ann. §§ 59:6-2 to 59:6-7 (West 1992).

Public entities are not liable for pre-judgment interest or punitive damages. N.J. Stat. Ann. § 59:9-2 (West 1992). In addition, public entities are not liable to claimants for damages for pain and suffering, unless the claim involves the loss of a bodily function, permanent disfigurement, or dismemberment, and the medical treatment expenses are in excess of $1,000. Id. No action may be brought against a political subdivision unless notice of the claim has been given within 90 days from the date the cause of action accrued. The court has discretion to extend this to one year absent prejudice to the political subdivision. N.J. Stat. Ann. §§ 59:8-8 and 59:8-9 (West Supp. 1997). Moreover, a complaint must be brought within two years from the time the cause of action accrued. N.J. Stat. Ann. § 59:8-8 (West Supp. 1997). A claimant’s minority or mental incapacity tolls these periods. Id.

In addition, the New Jersey Tort Claims Act provides that “nothing contained in this supplementary act shall inure to the benefit of any insurance company which has issued a policy of liability insurance or to any person who is obligated to indemnify a public entity or public employee.” N.J. Stat. Ann. § 59:10-9 (West 1992). Thus, to the extent a public entity carries applicable liability insurance, the limited immunities provided in the act do not apply.

New Jersey also provides non-profit entities organized exclusively for, inter alia, hospital purposes, immunity as to claims made by the hospital’s intended beneficiaries for damages in excess of $250,000. N.J. Stat. Ann. §§ 2A:53A-7 and 2A:53A-8 (West Supp. 1997). A hospital’s agents or servants, however, are not exempt from liability. Id. The increase in the maximum liability from $10,000 to $250,000 applies prospectively only to claims accruing on or after July 31, 1991. Schiavo v. John F. Kennedy Hospital, 258 N.J. Super. 380, 609 A.2d 781 (App. Div. 1992), aff’d mem., 131 N.J. 400, 620 A.2d 1050 (1993).

Arbitration

New Jersey requires the reference of personal injury claims to an arbitrator if the amount in controversy is $20,000 or less. N.J. Stat. Ann. § 2A:23A-20 (West Supp. 1997). The arbitrator’s decision is inadmissible and non-binding. Assembly Ins. Comm. Statement, Senate, No. 2709-L.1987, C.329.

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Revision Date: February 6, 1998