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The Law of Medical Malpractice in New Jersey:

A Survey of Basic Considerations

New Jersey medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in New Jersey are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in New Jersey exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in New Jersey by both members of the general public as well as practicing lawyers. This widespread lack of understand is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of New Jersey medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in New Jersey. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through Xexamine specific key technical aspects in initiating and prosecuting an action for medical malpractice in New Jersey.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principle and Concepts
-What is Medical Malpractice in New Jersey?
-Required Elements of a Medical Malpractice Claim in New Jersey
-Introduction
-The Four Basic Elements
-Proximate Cause
-The “But For” Test
-The “Substantial Factor” Test
-Foreseeability

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in New Jersey
-The Discovery Rule
-Introduction
-The Discovery Rule in New Jersey
-Minors
-Mental Disability
-Government Defendant

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in New Jersey

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in New Jersey
-Good Samaritan Act
-Introduction
-Good Samaritan Act in New Jersey
-Outside of Hospital Setting
-Inside of Hospital Setting
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Affidavit of Merit
-Introduction
-Procedural and Technical Requirements
-Expert Medical Witnesses
-Common Knowledge Exception to Expert Witness Requirement
-Case Management (Ferreira) Conference

VII. Medical Expert Witnesses
-Introduction
-Standard Qualification Requirements
-Specialist Qualification Requirements
-Common Knowledge Doctrine
-Admissibility of Expert Medical Witness Testimony
-Admissibility of Expert Testimony About Scientific Principles and Discoveries

VIII. Modified Comparative Negligence

IX. Limitations on Damages
-Punitive Damages
-Nonprofit Hospitals

X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in New Jersey?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

The New Jersey Supreme Court described medical malpractice as “a kind of tort action in which the traditional negligence elements are refined to reflect the professional setting of a physician-patient relationship.” Verdicchio v. Ricca, 843 A.2d 1042, 1056 (N.J. 2004).

Required Elements of a Medical Malpractice Claim in New Jersey

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under New Jersey law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers satisfy the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

New Jersey medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Four Basic Elements

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff. Verdicchio, 843 A.2d at 1056.

1. Duty—the healthcare provider owed the injured patient a legal duty to observe a specific standard of care;

2. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;

3. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and

4. Damages—the injured patient suffered damages because of the injuries.

According to the New Jersey Supreme Court, “the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor….” Komlodi v. Picciano, 89 A.3d 1234, 1246 (N.J. 2014). The Court described the applicable standard of care as follows: “A physician must exercise a duty of care to a patient that, generally, any similarly credentialed member of the profession would exercise in a like scenario.” Cowan v. Doering, 111 N.J. 451, 462 (1988).

It is settled law in New Jersey that in the ordinary medical malpractice case the applicable standard of care “must be established by expert testimony” because “a jury generally lacks the ‘requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.’” Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). In a medical malpractice case, the jury simply “is not competent to supply the standard by which to measure the defendant’s conduct.” Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961). In the event the plaintiff fails to provide expert testimony to establish the accepted standard of care applicable to the defendant, “it is proper for the court to grant a dismissal” of the plaintiff’s case. Id. at 135. Once the plaintiff establishes the applicable standard of care, he or she must then prove that the defendant deviated from that standard of care. Komlodi, 89 A.3d at 1246.

After the plaintiff establishes the governing standard of care and that the defendant breached it, then the plaintiff must prove that the defendant’s negligence was the proximate cause of his or her injury. Germann v. Matriss, 55 N.J. 193, 205 (1970). Proving the causal relationship between the defendant’s negligence and the plaintiff’s injuries is an absolute requirement in establishing liability since merely proving negligence without “showing a proximate causal relationship between” the negligence and the injury is insufficient to establish liability. Id.

Note that the terms ‘medical malpractice’ and ‘medical negligence’ are often used interchangeably as synonyms. Technically, that is not accurate. Medical negligence is only one of the four necessary elements of a medical malpractice claim, so it cannot be the equivalent of medical malpractice by itself. When the additional elements of legal duty, causation, and damages are combined with medical negligence, then that resultant combination of elements gives rise to medical malpractice.

Proximate Cause

A fundamental principle of New Jersey tort law holds that “generally, a tortfeasor should be liable for only the harm she actually caused to the plaintiff.” Komlodi, 89 A.3d at 1247. The New Jersey Supreme Court acknowledged that “it is the causation element that is the most complex” in a medical malpractice case.Verdicchio, A.2d at 1056.The Court observed: “Although the concept resists definition, we have described proximate cause as a standard for limiting liability for the consequences of an act based ‘upon mixed considerations of logic, common sense, justice, policy and precedent.’” Scarfidi v. Seiler, 119 N.J. 93, 101 (1990).

The “But For” Test

The determination of proximate cause is a factual issue to be resolved by the trier of fact. Id.In general, two different tests for determining proximate cause are recognized and utilized by New Jersey courts. The first is the traditional “but for” test that applies to most negligence cases. Verdicchio, A.2d at 1056. This test allows for recovery only when the injury is one that would not have occurred “but for” the defendant’s negligence. Id.

When there is a relatively easily identifiable single cause for the injury, the “but for” test typically works well. However, in cases where there are two or more forces that operate to bring about the result and any of them alone would be sufficient, the “but for” test is ineffective.Id.In fact, the “but for” test serves as an “insurmountable obstacle” for the plaintiff where multiple unrelated factors all contribute to the same injury. Id.In that scenario, it is not true that the injury would not have occurred “but for” the defendant’s negligence.

The “Substantial Factor” Test

In response to that deficiency of the “but for” test, New Jersey courts have adopted the so-called “substantial factor” test for concurrent causation cases. This test is “limited to that class of cases in which a defendant’s negligence combines with a preexistent condition to cause harm—as distinguished from cases in which the deviation [breach of the standard of care] alone is the cause of harm….” Scafidi, 119 N.J. at 108-109. The New Jersey Supreme Court formulated a two-prong test for proving causation in cases involving concurrent causation, i.e., where the plaintiff’s injuries are due in part to a preexistent condition. Id.at 108.

The Scafidi Court articulated the two-prong test as follows . To satisfy the first prong, a plaintiff must prove to a reasonable degree of medical probability that the defendant’s deviation from the standard of care increased the risk of harm from the preexistent condition. Id. at 109. If the first prong is satisfied, then the second prong “requires the jury to determine whether the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.” Id. at 108-109. That is, the second prong focuses on whether the deviation was a “substantial factor” in the resultant harm.

The New Jersey Supreme Court subsequently sought to refine the two-prong testas follows: “A plaintiff suffering from a preexistent condition must prove that, as a result of a defendant’s negligence, she experienced an increased risk of harm from that condition, and that the increased risk of harm was a substantial factor in causing the injury ultimately sustained.” Anderson v. Picciotti, 144 N.J. 195, 210 (1996).

The plaintiff has the burden of proof, by a preponderance of the evidence, with respect to both prongs of the Scafidi test. Once the plaintiff satisfies his or her burden of proof, “then the burden shifts to the defendant to show what damages should be attributable solely to the preexisting condition as opposed to the physician’s negligence.” Komlodi, 89 A.3d at 1249.

Unfortunately, in practice, the Scafidi test and subsequent intended refinementshave been difficult for juries to apply. They have struggled with the definition and then application of the terms “substantial factor” and “increased risk” to the facts in real life cases.New Jersey medical malpractice lawyers are familiar with jury verdicts that appear to be difficult to explain and inconsistent. Many experienced lawyers caution that when the Scafidi test is part of the jury instructions verdicts can be unpredictable.

Foreseeability

The concept of foreseeability is an integral part of proximate cause. Id. at 1251. According to the New Jersey Supreme Court, an “act is foreseeable when a reasonably prudent, similarly situated person would anticipate a risk that her conduct would cause injury or harm to another person.”Id. As “long as the injury or harm suffered was within the realm of reasonable contemplation, the injury or harm is foreseeable.” Id.Only those injuries that are foreseeable consequences of a defendant’s act can result in liability. Id. Foreseeability is a question of fact, so whether a specific risk is foreseeable is an issue for the jury to decide. Id. at 1252.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in New Jersey

The statute of limitations for filing a medical malpractice lawsuit in New Jersey is set forth inNew Jersey Statutes Annotated (“NJSA”)§2A:14-2(a).  It reads: “Every action at law for an injury to the person caused by … neglect … of any person within this State shall be commenced within two years next after the cause of any action shall have accrued….”For the reasons discussed below, plaintiffs have two years to commence an action for medical malpractice from the date they were aware of the injury or had reason to be aware of the injury giving rise to the claim.

The statute itself is silent on when an action accrues for purposes of the starting of the limitations period.  The New Jersey Supreme Court noted that in “the context of a medical malpractice action, a cause of action generally accrues on the date that the alleged act or omission occurred.”  Baird v. American Medical Optics, 713 A.2d 1019, 1025 (N.J. 1998).  But the Supreme Court recognized that strictly applying the date of the alleged medical negligence as the commencement date for the starting of the limitations period often leads to harsh results.  Id.  The reason lies in the fact that injuries arising from medical negligence frequently do not manifest themselves for many years after the occurrence of the negligence, so in that scenario, injured patients are time-barred from filing a claim before they even know that they were injured (and thus before they even have an opportunity to file a claim).

To address the potential injustice, the Supreme Court announced that to ameliorate the “often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law,” it adopted the Discovery Rule.  Lopez v. Swyer, 62 N.J. 267, 273 (1973).

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in New Jersey

The Discovery Rule was first adopted by the New Jersey Supreme Court in the 1961 case Fernandi v. Strully, 35 N.J. 434 (1961).  In Fernandi, the Discovery Rule was expressly limited to situations where a foreign object was left inside the patient’s body following surgery.  But by 1973, the Supreme Court recognized the Discovery Rule as a generally applicable rule of equity that applies “whenever equity and justice … call for its application.”  Lopez, 62 N.J. at 273.  The Supreme Court observed that the “linchpin of the discovery rule is the unfairness of barring claims of unknowing parties.”  Mancuso v. Neckles ex rel. Neckles, 747 A.2d 255, 257 (N.J. 2000).

The purpose of the Discovery Rule is to prevent “the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another….”Tevis v. Tevis, 79 N.J. 422, 432 (1979).  The New Jersey Supreme Court observed that it is “inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless.”  Lopez, 62 N.J. at 274.

According to the Supreme Court, the critical factors in the starting of the limitations period are “the injured party’s awareness of the injury and the fault of another.”  Baird, 713 A.2d at 1025.  The Court thus made it clear that awareness of an injury itself is not sufficient to start the running of the limitations period.  That awareness of injury must be coupled with an awareness that the injury is the result of someone else’s action or inaction.  “A cause of action does not accrue until both of those factors exist.”  Martinez v. Cooper Hospital, 747 A.2d 266, 270 (N.J. 2000).The awareness of someone else’s fault “does not mean that a plaintiff must have knowledge of a specific basis for legal liability or a provable cause of action before the statute of limitations begins to run.”  Id.  The required level of awareness is “whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another.”  Id.

Thus, the New Jersey Supreme Court articulated the rule for when the limitations period commences under the Discovery Rule as follows: “the statute of limitations begins to run when the plaintiff is aware, or reasonably should be aware, of facts indicating that she has been injured through the fault of another, not when a lawyer advises her that the facts give rise to a legal cause of action.”  Baird, 713 A.2d at 1026.  Once the limitations period begins to run after it had been tolled by the Discovery Rule, the plaintiff is permitted the standard two full years to bring an action.  Caravaggio v. D’Agostini, 166 N.J. 237, 250 (2001).

Minors

Calculating the limitations period for an injured minor is slightly different than the standard statute of limitations analysis.  Under New Jersey law, the statute of limitations for a medical malpractice claim does not begin to run until the injured person reaches 18 years of age.  NJSA §2A:14-21.  That is, the standard limitations period under NJSA §2A:14-2 is tolled until the minor reaches the age of majority, i.e., 18 years old.  Once the minor turns 18, he or she then must initiate a medical malpractice action within two years, i.e., by his or her 20th birthday.

The calculation is yet again different for a medical malpractice claim for injuries sustained at birth.  NJSA §2A:14-2(a) requires “an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor’s 13th birthday.”  Subsection (b) of the statute states that if the minor’s parent or guardian has not commenced an action for medical malpractice by the minor’s 12thbirthday the minor or an adult designated by the minor may commence such an action.  It adds “the minor or designated person may petition the court for the appointment of a guardian ad litem to act on the minor’s behalf.”

Mental Disability

The statute of limitation for commencing a medical malpractice claim is tolled when the claimant “has a mental disability that prevents the person from understanding his legal rights or commencing a legal action at the time the cause of action or right” accrues. NJSA §2A:14-21.  The person under the mental disability must file an action within the standard two-year limitations period provided for in NJSA §2A:14-2(a) of the date he or she has the mental capacity to pursue his or her lawful rights.  Id.

The New Jersey Supreme Court defined mental disability[1] for purposes of the statute to mean “such a condition of mental derangement as actually prevents the sufferer from understanding his legal rights or instituting legal action.”  Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 114 (1965).

Government Defendant

A notice of claim for personal injury against a public entity or public employee must be presented to the government within 90 days after the accrual of the cause of action.  NJSA §59:8-8.  The claimant may file suit in an appropriate court six months after the notice of claim is received by the government.  Id.  The statute further provides that “claimant shall be forever barred from recovering against a public entity or public employee if: (a) The claimant failed to file the claim with the public entity within 90 days of accrual of the claim … ; or (b) Two years have elapsed since the accrual of the claim ….”

NJSA §59:8-9 permits a claimant to file a late notice of claim within one year after the accrual of the claim “provided that the public entity or the public employee has not been substantially prejudiced thereby.”  The claimant must file a motion for leave to file a late claim, andit is within the discretion of a judge of the Superior Court whether to grant the motion.  Id.The motion may be granted if the claimant has demonstrated “sufficient reasons constituting extraordinary circumstance for his failure to file notice of claim” within the required 90-day period.  Id.

Plaintiffs who intend to file suit against a public entity or public employee must be sure to strictly comply with the 90-day notice of claim requirement, and if they need to file a late notice, they must comply with the late filing procedure.  Otherwise, they will be barred from bringing suit.  The New Jersey Supreme Court ruled that where a plaintiff failed to file a timely notice of claim and also failed to file a motion for leave to file a late notice the claim was completely barred.  McDade v. Siazon, 32 A.3d 1122 (N.J. 2011).

[1] The Kyle Court examined the previous version of NJSA §2A:14-21, which used the term ‘insane’ rather than ‘mental disability.’  The statute was amended to its current form in 2013.  “However, as the comments to the amendment make clear, the amendment did not intend to change the legal standard for determining the applicability of the statute, and Kyle continues to be the controlling case.  See N.J.S.A. 2A:14-21, law revision comm’ncmt. To 2013 amendment.”  White v. Sanchomora, Civil Action No. 13-2492 (MAS) (TJB) (D.N.J. May. 31, 2016) (see footnote 5).

III.  Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in New Jersey

Although the New Jersey General and Permanent Statutes do not contain a statute of repose for medical malpractice claims, it is worth noting that New Jersey courts indicate that, in their view, there exists a de facto statute of repose governing such claims.  The New Jersey Supreme Court has repeatedly indicated[1] that “[p]rimarily, statutes of limitations are statutes of repose.”Tevis v. Tevis, 79 N.J. 422, 430 (1979).  Though, it does not appear that the Court has utilized the asserted statute of repose as the exclusiverationale for extinguishing a plaintiff’s claim in an actual case.

The position of New Jersey courts on statutes of repose is being briefly noted in an effort to avoid confusion for readers who are vaguely familiar with the concept of statutes of repose from other jurisdictions as well as readers who have never heard of statutes of repose.  Readers are likely to encounter discussions on statutes of repose by New Jersey courts since the topic is addressed in some of the most important and influential cases in the state regarding the statute of limitations and medical malpractice claims (see list of cases in footnote 3).

New Jersey’s view on the matter represents a significant departure from how courts and scholars[2] in other states and the federal systemview statutes of repose.  That is, the two types of statutes are generally not considered one and the same in other jurisdictions as appears to be the case in New Jersey.  As such, if this discussion represents one’s first encounter with statutes of repose, an understanding of how New Jersey courts conceptualize them will not serve as adequate insight for howthey are viewed generally within the broader legal community.

For instance, Texas has a separate and distinct statute of repose governing medical malpractice claims, which states: “A claimant must bring a … claim not later than 10 years after the date of the act or mission that gives rise to the claim.”  CPR §74.251(b).  The Texas Supreme Court observed that “to hold that a statute of repose must yield to the plaintiff’s inability to discover her injury would treat a statute of repose like a statute of limitations, and would effectively repeal this and all other statutes of repose.”Methodist Healthcare System of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 290 (Tex. 2010).  The two statutes (and principles underlying each) are clearly viewed as separate and distinct in Texas.

Similarly, Florida’s statutes contain an express statute of repose for medical malpractice claims, which reads “in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….”  F.S. §95.11(4)(b).  The Florida Supreme Court bemoaned that there “is considerable misunderstanding of the relationship between statutes of limitations and statutes of repose.”  Kush v. Lloyd, 616 So.2d 415, 418 (Fla. 1992).  The Court sought to clear up the confusion by explaining the difference as follows. “A statute of limitation begins to run upon the accrual of a cause of action…. On the other hand, a statute of repose … runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued.”  Id.

The U.S. Supreme Court described statutes of limitations and statutes of repose as functionally distinct with each serving separate public policy goals.  CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2178-2179 (2014).  The Court reasoned that statutes of limitations “promote justice by encouraging plaintiffs to pursue claims diligently” and “begin to run when a claim accrues.”  Id.  On the other hand, statutes of repose “effect a legislative judgment that a defendant should be free from liability after a legislatively determined amount of time” and “are measured from the date of the defendant’s last culpable act or omission….”  Id.  It added that statutes of repose constitute an absolute limit on commencing an action because statutes of repose are not subject to equitable tolling like statutes of limitations, e.g., the Discovery Rule.  Id.

[1]SeeMancuso v. Neckles ex rel. Neckles, 747 A.2d 255, 257 (N.J. 2000), in which the Court reiterated “[s]tatutes of limitations are primarily statutes of repose”; Fox v. Passaic General Hospital, 71 N.J. 122, 127-128 (1976), in which the Court declared that “the principle of repose” is inherent in the statute of limitations; Lopez v. Sawyer, 62 N.J. 267, 274 (1973), in which the Court stated “statutes of limitations are statutes of repose…”; and Fernandi v. Strully, 35 N.J. 434, 451 (1961), in which the Court discussed the statute of  limitations’ “two-year limitation or the considerations of repose which underlie it.”

[2]See Daniel J. La Fave, Remedying the Confusion Between Statutes of Limitations and Statutes of Repose in Wisconsin—A Conceptual Guide, 88 Marq. L. Rev. 927 (2005).  The law review article begins with this passage: “the Wisconsin Supreme Court lamented that ‘the terms ‘statute of repose’ and ‘statute of limitations’ have long been two of the most confusing and interchangeably used terms in the law.’”

Available at: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1031&context=mulr

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in New Jersey

Lawsuits against public entities and employees are governed by the New Jersey Tort Claims Act contained in NJSA §59:1-1 through §59:14-4.  The term ‘public entity’ “includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.”  NJSA §59:1-3.  The term ‘public employee’ “means an employee of a public entity.”  Id.

The Tort Claims Act states: “Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  NJSA §59:2-1.   According to the New Jersey Supreme Court, that means “immunity for public entities is the rule and liability is the exception.”  Fluehr v. City of Cape May, 159, N.J. 532, 539 (1999). The Tort Claims Act is “strictly construed to permit lawsuits only where specifically delineated.”  Gerber ex rel. Gerber v. Springfield Board of Education, 328 N.J.Super. 24, 34 (App. Div. 2000).  Thus, to bring suit against a public entity or public employee, a plaintiff must identify a specific provision of the Tort Claims Act that waives the government’s immunity with respect to the plaintiff’s cause of action.New Jersey has waived sovereign immunity, at least on a limited basis, in several provisions of the Tort Claims Act.

Good Samaritan Act

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Act in New Jersey

Outside of Hospital Setting

New Jersey’sgeneral Good Samaritan Act has been codified in NJSA §2A:62A-1.It immunizes members of the general public, healthcare practitioners, and first responders from any civil damages who in good faithrender emergency careat the scene of an accident or emergency situation to the victim or while transporting the victim to a hospital or healthcare facility.  To qualify for protection under the Act, the following conditions must be present:

  1. Treatment rendered voluntarily without expectation of monetary compensation;
  1. Treatment rendered at the scene of an accident or other emergency setting or while being transported to a hospital or other healthcare facility;
  1. Treatment rendered outside of a hospital, doctor’s office, or other healthcare facility setting; and
  1. Good Samaritan must not have acted with gross negligence or intentional misconduct. NJSA §2A:62A-9.

The Good Samaritan Act will not immunize a person from civil liability if that person had a pre-existing duty to render aid to the victim.  Velazquez ex rel. Velazquez v. Jiminez, 798 A.2d 51, 64 (N.J. 2002).  A 2011 caseunderscored this principle.  The Plainfield Rescue Squad was sued for negligent care at an emergency scene that ultimately resulted in the patient’s death.  Though critically wounded, the Squad allegedly delayed rushing the patient to the hospital for over 30 minutes.  In its defense, the Squad invoked the protection of the Good Samaritan Act and asserted that they were immune from civil liability.  The Court rejected the Squad’s argument and ruled that the Good Samaritan Act did not apply to them because they “had a pre-existing duty to render assistance to [the patient] in light of their status as squad members.”  Murray v. Plainfield Rescue Squad, 15 A.3d 30, 39 (N.J. App. Div. 2011).

Inside of Hospital Setting

New Jersey’s general Good Samaritan Act contained in NJSA §2A:62A-1 does not apply to emergencies inside a hospital or other healthcare facility.  That was made clear by the New Jersey Supreme Court in 2002.  In Velazquez, the defendant physician asserted that the Good Samaritan Act shields her from civil liability because she had no pre-existing duty to the plaintiff.However, the emergency occurred inside a hospital setting.  Up until the Velazquez case, it was an open question whether New Jersey’s Good Samaritan Act applied to emergencies that occurred within a hospital or other healthcare facility. The statute itself was considered ambiguous on this issue.

In reaching its conclusion, the Supreme Court reasoned that a law conferring immunity must be narrowly construed.  Velazquez, 798 A.2d at 62.  Had the Legislature intended to immunize anyone rendering emergency care regardless of the setting, “it could have done so simply and directly.”  Id. at 64.  But it did not do so in NJSA §2A:62A-1.  Therefore, the Court held: “A hospital or medical center does not qualify under the terms of the Good Samaritan Act in its present form.”  Id. at 65.

In response to the Velazquez decision, the Legislature passed NJSA 2A:62A-1.3 in 2004.  Essentially, that statute serves as the Good Samaritan Act for emergencies that occur within a hospital or other healthcare facility.  It immunizes healthcare practitioners who respond to a life-threatening emergency within those types of facilities.

To qualify for this immunity, the healthcare practitioner cannot be under a pre-existing duty towards the specific patient, i.e., a physician-patient relationship does not exist and tending to the patient is not part of the physician’s on-call duty.  Id. Similarly, the immunity does not apply “if consideration in any form is provided” to the healthcare practitioner for the service rendered. The statute expressly provides that the “immunity granted pursuant to this section shall not apply to acts or omissions constituting gross negligence, recklessness, or willful misconduct.”  Id.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the New Jersey General and Permanent Statutes.  Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

V. Required Elements of a Medical Malpractice Complaint

For the most part, the content and format of complaints are governed by Rule 1:4, Rule 4:2, and Rule 4:5of theRules Governing the Courts of the State of New Jersey.

Under the Court Rules, a civil action is commenced by filing a complaint in court.  Rule 4:2-2.  A complaint is one of the specific types of pleadings permitted in state courts by Rule 4:5-1(a).  It is a formal allegation by the plaintiff containing his or her claims for judgment by the court.  Rule 4:5-1(b)(1) requires that a Case Information Statement[1] “be annexed as a cover sheet to each party’s first pleading….”  A certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding must be included with the complaint.  Rule 4:5-1(b)(2).The technical details regarding the required format and case management related content of the complaint are contained in Rule 1:4.

In making a claim for relief, the complaint must “contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement.”  Rule 4:5-2.  The complaint must be written in a “simple, concise and direct” manner, “and no technical forms of pleading are required.”  Rule 4:5-7.  The complaint may contain two or more statements of claims alternatively or hypothetically, and as many separate claims as the plaintiff has may be stated regardless of their consistency.  Rule 4:5-6.

In a medical malpractice complaint, the demand for damages must be stated generally without specifying the amount.  Id.If the plaintiff is seeking punitive damages, an “award of punitive damages must be specifically prayed for in the complaint.”  NJSA §2A:15-5.11.

VI. Affidavit of Merit

Introduction

Under New Jersey law, the timely filing of an Affidavit of Merit is a prerequisite in all medical malpractice cases.NJSA §2A:53A-27. The purpose for the Affidavit of Merit is “to require plaintiffs in malpractice cases to make a threshold showing that their claim in meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation.”  Petition of Hall By and Through Hall, 147 N.J. 379, 391 (1997).

Procedural and Technical Requirements

The Affidavit of Merit must be provided to each defendant within 60 days of the date of the filing of the answer to the complaint by the defendant.  Id.The failure to file an Affidavit of Merit as required with respect to a specific defendant constitutes a failure to state a cause of action against that defendant.  NJSA §2A:53A-29.  The ramifications of which were articulated by the New Jersey Supreme Court as the “dismissal of even meritorious cases.”  Buck v. Henry, 25 A.3d 240, 242 (N.J. 2011).  Upon a finding of good cause, the “court may grant no more than one additional period, not to exceed 60 days, to file” the Affidavit of Merit.  Id.The statute reads as follows:

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.

Notice that the subject matter of the Affidavit of Merit is limited to the applicable standard of care and breach thereof, not the issue of causation.The Affidavit of Merit statute is not focused on whether the plaintiff can prove the allegation of medical malpractice contained in the complaint, but on whether there is some objective threshold of merit to the plaintiff’s claim.  Hubbard v. Reed, 774 A.2d 495, 499 (N.J. 2001).  The Affidavit of Merit simply requires the plaintiff to demonstrate that the threshold of merit is met through expert opinion testimony “that a duty of care existed and that the defendant breached that duty.”  Id.

A plaintiff is relieved of his or her obligation to furnish an Affidavit of Merit if the plaintiff files a sworn statement certifying (1) that the plaintiff, by certified mail or personal service, requested the defendant in question to deliver medical records or information having a substantial bearing on preparation of the Affidavit and enclosed an authorization for release of the records, and (2) that the defendant failed to deliver the requested records or information within 45 days of thedefendant’s receipt of service of the request.NJSA §2A:53A-28.

Expert Medical Witnesses

NJSA §2A:53A-41 governs who qualifies as “an appropriate licensed person” for the purpose of executing the required Affidavit of Merit.  For a discussion on the topic of who may execute the Affidavit of Merit, see the next Section on Expert Medical Witnesses below in this article.

Briefly, the underlying principle of NJSA §2A:53A-41 is that the challenging expert (appropriate licensed person) should be equivalently-qualified to the defendant.  Buck, 25 A.3d at 247.  The statute creates three distinct categories of practitioners for purposes of applying this kind-for-kind rule:

  1. those who are specialists in a field recognized by the American Board of Medical Specialties (“ABMS”) but who are not board certified in that specialty;
  1. those who are specialists in a field recognized by the ABMS and who are board certified in that specialty; and
  1. those who are general practitioners. NJSA §2A:53A-41(a),(b) and Buck, 25 A.3d at 247.

The statute provides for a waiver of the same specialty or subspecialty requirement for expert medical witnesses under certain limited circumstances.  NJSA §2A:53A-41(c).Under the statute, a court may waive the same specialty or subspecialty requirement:

upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.

If the trial court concludes that the requirements are met, “the waiver provision opens the door for a non-equivalently-qualified expert in the same field as defendant to testify, and permits an expert in one field to opine on the performance of an expert in another related field.”  Ryan v. Renny, 999 A.2d 427, 437 (N.J. 2010).

Common Knowledge Exception to Expert Witness Requirement

Although it is not in the statute, the New Jersey Supreme Courtdeclared that the common knowledge doctrine applies to the Affidavit of Merit.  Under the common knowledge doctrine, an expert witness is not required to establish the relevant standard of care.  The Supreme Court described the doctrine as allowing “the jury to determine the negligence of professionals without expert testimony concerning professional standards of care….”  Estate of Chin v. St. Barnabas Medical Center, 734 A.2d 778, 779 (N.J. 1999).

The doctrine applies to cases where “the issue of negligence is not related to technical matter peculiarly within the knowledge of” experts.  Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961).  An example is when a defendant doctor amputates the wrong limb, e.g., the right leg instead of the left.  Although a medical procedure was involved, it does not require the opinion of an expert to conclude that someone associated with the procedure was negligent.

In 2001, the Supreme Court announced “we hold today that there is a common knowledge exception to the Affidavit of Merit Statute….”  Hubbard, 774 A.2d at 501.  In a case where the plaintiff will not present expert testimony to establish negligence, but instead will rely on the common knowledge exception, the plaintiff is not required to provide an Affidavit of Merit prior to trial in order to demonstrate that his or her claim meets the threshold for merit.  Id.

However, the Court warned that it will construe the exception “narrowly in order to avoid non-compliance with the statute.”  Id.  The Court added “[a]lthough we understand that in some cases plaintiffs may choose not to expend monies on an expert who will not testify at trial, there is some uncertainty in relying on common knowledge in professional malpractice cases.”  Id.Despite recognizing the common knowledge doctrine in Hubbard, the Court ended its decision with this advice: “Indeed, the wise course of action in all malpractice cases would be for plaintiffs to provide affidavits even when they do not intend to rely on expert testimony at trial.” Id.

Case Management (Ferreira) Conference

As the New Jersey Supreme Court has repeatedly stated, the purpose of the Affidavit of Merit is to weed out frivolous claims during the early stage of cases, not to serve as a mechanism to bar meritorious claims brought in good faith.  Ferreira v. Rancocas Orthopedic Associates, 836 A.2d 779, 783 (N.J. 2003).  In Ferreira, the Court acknowledged that the statutory requirement “has generated a tide of litigation” involving “derelictions of plaintiffs’ counsel, who have filed well-grounded complaints, but have neglected to file technically correct or timely affidavits.”  Id. at 780.  Such non-compliance requires dismissal of the complaint with prejudice (meaning it is dismissed permanently, and the claim cannot ever be brought again).  Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998).

To address the large number of dismissal motions based on claims of non-compliance, the Ferreira Court introduced the requirement of “an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions.”  Ferreira, 836 A.2d at 785.  The purpose of the conference is to address any alleged and actual deficiencies in the Affidavit of Merit at an early stage while there is still time to make any necessary corrections.  The Court remarked that “an ounce of prevention is worth a pound of cure” with respect to case management conferences.  Id. at 780.

[1] To view the official Case Information Statement Form, click here.

VII. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

The New Jersey Supreme Court affirmed that the general rule applies to medical malpractice claims in the state.  The Court announced: “To establish a prima facie case[1] of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing (1) the applicable standard of care … (2) a deviation from that standard of care … and (3) that the deviation proximately caused the injury….”  Gardner v. Pawliw, 150 N.J. 359, 375 (1997).  As the Court pointed out, expert medical witnesses are typically required to prove at least three of the four basic elements of a compensable medical malpractice claim.

Standard Qualification Requirements

In general, New Jersey Rules of Evidence (“NJRE”) 702 governs who may serve as an expert witness.  NJRE 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

However, the qualifications for expert witnesses in medical malpractice cases in particular are also governed by NJSA§2A:53A-41, which sets forth an array of technical details on who may provide expert medical opinion testimony. In the event the qualification requirements of NJRE 702 and those of NJRS 2A:53A-41 conflict or are otherwise incongruent, the latter controls.  Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013).

In Nicholas, the New Jersey Supreme Court acknowledged that the plaintiff’s expert witness was eminently qualified to testify on the issue in dispute, noting “[b]y the standards of N.J.R.E. 702, one could hardly dispute the qualifications” of the expert witness regarding the issue in dispute.  Id. at 545.  But the expert witness did not qualify under the standards set forth in NJSA 2A:53A-41, and thus the Court held that the expert’s testimony was inadmissible.  Id. at 551.

The underlying principle of NJSA §2A:53A-41 is that the challenging expert should be equivalently-qualified to the defendant.  Buck v. Henry, 25 A.3d 240, 247 (N.J. 2011).  The statute creates three distinct categories of practitioners for purposes of applying this kind-for-kind rule:

  1. those who are specialists in a field recognized by the American Board of Medical Specialties (“ABMS”) but who are not board certified in that specialty;
  1. those who are specialists in a field recognized by the ABMS and who are board certified in that specialty; and
  1. those who are general practitioners. NJSA §2A:53A-41(a),(b) and Buck, 25 A.3d at 247.

When evaluating the qualifications of a prospective expert witness in a medical malpractice case, “the first inquiry must be whether a physician is a specialist or general practitioner.”  Buck, 25 A.3d at 248. If the defendant is a general practitioner, then the general expert witness qualification analysis under NJRE 702 and associated caselaw serve as the principal standards for qualifying as an expert witness.  If the defendant is a specialist, then the “second inquiry must be whether the treatment that is the basis of the malpractice action ‘involves’ the physician’s specialty.”  Id.If it does not, then just as with general practitioners, the general expert witness qualification analysis under NJRE 702 and associated caselaw govern.

In cases wherethe defendant is a general practitioner or a specialist but the issue in question does not involve that specialty, NJRE 702 sets forth the basic standard for who qualifies as an expert medical witness.  It requires that the prospective expert must have the requisite “knowledge, skill, experience, training, and education….”  The trial court is responsible for determining whether an individual qualifies as an expert and whether his or her testimony is admissible.  Townsend v. Pierre, 221 N.J. 36, 52 (2015).

The New Jersey Supreme Court has formulated the following test of whether a prospective expert witness is qualified to testify in a malpractice case: “The test … is whether he has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto.”  Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961).  The expert “must be a licensed member of the profession whose standards he professes to know.”  Id.  When a prospective expert witness holds the same license as the defendant it suggests that he or she has “the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion.”  Id.This requirement has been codified in NJSA§2A:53A-41, which requires expert witnesses testifying about the appropriate standard of care to be a licensed physician or other healthcare professional in the U.S.

In addition to NJRE 702 and the associated case law, NJSA§2A:53A-41(b) adds these additional requirements for an expert witness testifying against a general practitioner or a specialist but the issue in question does not involve that specialty.

[T]he expert witness during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:

  • active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or
  • the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or

Specialist Qualification Requirements

NJSA§2A:53A-41 sets forth a series of very stringent requirements[2] for a prospective expert medical witness in qualifying to testify against a specialist defendant.  Basically, the statute requires the expert witness to practice in the same specialty as the defendant as well as hold the same licenses and credentials.  New Jersey law does not recognize any overlap in knowledge or expertise between different practice areas.

The New Jersey Supreme Court vividly illustrated this point in the 2013 case Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013).  In the case, the plaintiff’s expert, Dr. Weaver, was board-certified in internal and preventive medicine, and he was credentialed by ahospital to treat carbon monoxide poisoning as a specialist in hyperbaric medicine. The defendant doctors were board certified in emergency medicine and family medicine.  The plaintiff brought suit against the defendants for their treatment of him for carbon monoxide poisoning.  The Court acknowledged that Dr. Weaver was a highly-qualified experton the treatment of carbon monoxide poisoning.  Id. at 545.  However, since he was not board certified in the same specialty as the defendants, the Court held that he was not qualified to testify as to the standard of care applicable to them.  Id. at 551.

The Nicholas case also made it clear that being a subject matter expert on a particular issue is not enough to qualify a person as an expert witness as to the standard of care applicable to that issue.  The expert must literally possess the same credentials as the defendant to qualify as an expert medical witness under NJSA§2A:53A-41(a).

Common Knowledge Doctrine

The general rule for medical malpractice cases is that an expert witness is required to establish the applicable standard of care from which the defendant is accused of deviating.  Sanzari v. Rosenfeld, 34 N.J. 128, 134-135 (1961).  The rationale for this expert witness requirement is based upon the fact that a jury generally lacks the “requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.”  Id.

However, under the common knowledge doctrine, an expert witness is not required to establish the relevant standard of care.  The New Jersey Supreme Court described the doctrine as allowing “the jury to determine the negligence of professionals without expert testimony concerning professional standards of care….”  Estate of Chin v. St. Barnabas Medical Center, 734 A.2d 778, 779 (N.J. 1999).  The doctrine applies to cases where “the issue of negligence is not related to technical matter peculiarly within the knowledge of” experts.  Sanzari, 34 N.J. at 142.

It applies to “situations where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.”  Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 326 (1985).  For example, in a classic common knowledge doctrine scenario, where a dentist extracted the wrong tooth, the court held that expert evidence is not required because the factthat negligence occurred is within the common knowledge and experience of the average person.  Steinke v. Bell, 32 N.J.Super. 67, 70 (App. Div. 1954).

Admissibility of Expert Medical Witness Testimony

Once an expert is qualified as such and permitted to offer opinion testimony, he or she may do so only “if that opinion is based on reasonable medical certainty or probability.”  Schrantz v. Luancing, 218 N.J.Super. 434,438 (Law Div. 1986).  Simply because an individual is qualified to offer expert medical testimony does not permit him or her to “introduce incompetent evidence such as an opinion not based on reasonable medical probability or certainty.”  Id.  The Schrantz Court defined reasonable medical probability or certainty as “the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions.”  Id.However, it is not necessary for an expert medical witness to use “talismanic” or “magical words represented by the phrase ‘reasonable degree of medical certainty.’”  Eckert v. Rumsey Park Associates, 294 N.J.Super. 46, 51 (App. Div. 1996).

According to the New Jersey Supreme Court, “the necessity for and admissibility of expert testimony are matters to be determined within the sound exercise of discretion by the trial court.”  State v. Berry, 140 N.J. 280, 293 (1995).  The Court added that it is the responsibility of the trial court to make informed admissibility decisions.  Hisenaj v. Kuehner, 942 A.2d 769, 774 (N.J. 2008).  A trial court’s admissibility determinations are afforded considerable deference upon appellate review.  Id. at 780.In fact, a trial court’s decision on admissibility of expert witness testimony is reviewed on appeal against an abuse of discretion standard.  Townsend v. Pierre, 110 A.3d 52, 62 (N.J. 2015).

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[3] follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

For the most part[4], New Jersey uses the Frye standard. State v. Torres, 874 A.2d 1084, 1093 (N.J. 2005). According to the New Jersey Supreme Court, “the field of inquiry must be generally accepted such that an expert’s testimony would be sufficiently reliable.”  Id.   The Court recognized three ways in which the reliability of a relatively new field of research may be established.  Id.

There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed.

In addition to keeping junk science out of evidence, trial courts must guard against admitting“net opinions” into evidence as well.  The net opinion rule forbids the admission into evidence of an expert witness’ conclusions that are not supported by factual evidence or other data.  Townsend, 110 A.3d at 63.  The net opinion rule requires expert witnesses to provide the “why and wherefore” that supports their opinion.  Id.In addition, the rule requires expert witnesses to “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). Accordingly, under the net opinion rule, expert witnesses’ bare conclusions unsupported by facts or data are inadmissible.  Townsend, 110 A.3d at 63.

VIII.  Modified Comparative Negligence

New Jersey follows the doctrine of modified comparative negligence with a 51% bar rule.  NJSA §2A:15-5.1 provides that “[c]ontributory negligence shall not bar recovery in an action … to recover damages for negligence resulting in death or injury … if such negligence was not greater than the negligence of the person against whom recovery is sought….”Under New Jersey law, the plaintiff’s own negligence in causing or contributing to his or her injuries is not a bar to recovery unless the plaintiff’s assigned percentage of fault is 51% or greater.

However, the New Jersey Supreme Court cautioned that comparative negligence “comes into action when the injured party’s carelessness occurs before defendant’s wrong has been committed or concurrently with it.”  Ostrowski v. Azzara, 111 N.J. 429, 438 (1988).  When the plaintiff’s own negligence occurs after the defendant’s, the doctrine of avoidable consequences is implicated, not comparative negligence.  Komlodi v. Picciano, 89 A.3d 1234, 1248 (N.J. 2014).  The doctrine of avoidable consequences is not a defense to liability; it serves only to mitigate damages.  Id.The underlying rationale for the doctrine is that a plaintiff “cannot claim as damages the additional injury she causes herself after a defendant commits a tortious act.”  Id.

The trier of fact is responsible for determining, in the form of a percentage, each party’s negligence or fault.NJSA §2A:15-5.2(a)(2).  The “total of all percentages of negligence or fault of all the parties to a suit shall be 100%.”  Id.In addition, the trier of fact is required to determine the “amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party’s damages.”  NJSA §2A:15-5.2(a)(1).

Modified comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.  NJSA §2A:15-5.1 states that “damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is barred from recovering any damages.  As the New Jersey Supreme Court confirmed, “[u]nder the statute, if the plaintiff’s negligence is fifty-one percent and defendant’s forty-nine percent, the plaintiff receives no recovery.”  Komlodi, 89 A.3d at1248.Accordingly, plaintiffs in New Jersey must be 50% or less at fault for their injuries in order to recover damages.

For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because New Jersey applies the 51% bar rule.

IX. Limitations on Damages

As of the date of this article, New Jersey does not place a generally applicable limit or cap on either economic or noneconomic damages in medical malpractice cases.  However, it must be noted that attempts at passing legislation that would do so have occurred[5] and may continue in the future since limitation on damages is a top priority for self-identified tort reform advocates.

Punitive Damages

New Jersey law does place a limit on punitive damages.  The New Jersey Punitive Damages Act caps punitive damages as follows: “No defendant shall be liable for punitive damages in any action in an amount in excess of five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.”  NJSA 2A:15-5.14(b).  Compensatory damages are economic or so-called actual damages that compensate the injured party for out-of-pocket expenses such as medical expenses, property damages, lost income, etc.  An award of compensatory damages is a necessary prerequisite for the awarding of punitive damages.  NJSA 2A:15-5.13(c).

The awarding of punitive damages in medical malpractice cases is exceptionally rare.  The type of conduct required for the imposition of such damages almost never occurs in medical malpractice cases. According to the New Jersey Supreme Court, to warrant the imposition of punitive damages, “the defendant’s conduct must have been wantonly reckless or malicious.  There must be an intentional wrongdoing in the sense of an ‘evil-minded act’ or an act accompanied by a wanton and willful disregard of the rights of another.”  Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984).  With that being the standard for awarding punitive damages, it becomes clear why punitive damages are rarely an issue in medical malpractice cases.

Nonprofit Hospitals

Although New Jersey does not place a general limitation on damages in medical malpractice cases, it does place a limited liability cap of $250,000 on damages against “any nonprofit corporation, society or association organized exclusively for hospital purposes….”  NJSA §2A:53A-8.

The meaning of “organized exclusively for hospital purposes” is critical for plaintiffs seeking to file suit against a nonprofit hospital.  If the defendant is characterized as organized exclusively for hospital purposes, then it has only a damage cap of $250,000 from liability for negligence.  On the other hand, if the nonprofit defendant is characterized as a hybrid nonprofit entity organized exclusively for charitable, religious, or educational purposes, then it enjoys absolute immunity under NJSA §2A:53A-7.

The New Jersey Supreme Court definedthe phrase in 2015.  The Court rejected the “vintage conception of a hospital as a facility providing a site for physicians to provide acute and continuous inpatient care for their patients.”  Kuchera v. Jersey Shore Family Health Center(073483), A-60-13 (N.J. 2015) at page 17.  Instead, the Court announced that “to effectuate the legislative mandate that the CIA [Charitable Immunity Act, NJSA §2A:53A-7 to 11] should be liberally construed to effectuate its purpose, we focus on the many medical pursuits of a modern hospital in New Jersey.”  Id.The modern hospital is not limited tothe “vintage” model of providing only inpatient services.  Instead, the modern hospitalis a multi-function institution thatprovides, among other things, both inpatient and outpatient services, public health activities, and a teaching component for the education of medical students.  Id. at 20-21.

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees

In New Jersey, continent fee arrangements are governed byRule 1:21-7 of theRules Governing the Courts of the State of New Jersey.  The term ‘contingent fee arrangement’ is defined as “an agreement for legal services of an attorney or attorneys … under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be fixed or is to be determined under a formula.”  Rule 1:21-7(a).

New Jersey imposes limitations on the permissible contingent fees in medical malpractice cases based on a sliding scale tied to the amount recovered.  Rule 1:21-7(c) establishes the following limitation amounts:

  1. 331/3% on the first $750,000 recovered;
  1. 30% on the next $750,000 recovered;
  1. 25% on the next $750,000 recovered;
  1. 20% on the next $750,000 recovered; and
  1. a reasonable amount approved by the court for the excess over $3 million.

If the client was a minor or mentally incapacitated at the time the contingent fee arrangement was made, the foregoing limits apply but with the following exception.  The contingent fee shall not exceed 25% where the recovery was by settlement prior to the empaneling of the jury or plaintiff’s opening statement.  Rule 1:21-7(c)(6).

The limitations set forth in Rule 1:21-7 are intended to establish the maximum permissible fees.  The statutory limitations “do not preclude an attorney from entering into a contingent fee arrangement providing for, or from charging or collecting a contingent fee below such limits.”  Rule 1:21-7(e).  On the other hand, if at the conclusion of a matter the attorney believes that the permissible fee is inadequate, he or she can request a hearing with the court to determine “a reasonable fee in light of all the circumstances.”  Rule 1:21-7(f).

The permissible fees are computed on the net sum recovered after deducting “disbursements in connection with the institution and prosecution of the claim … including investigation expenses, expenses for expert or other testimony or evidence, the cost of briefs and transcripts on appeal, and any interest included in the judgement.”  Rule 1:21-7(d).  But “no deduction need be made for post-judgment interest or for liens, assignments or claims in favor of hospitals or for medical care and treatment….”  Id.That is, attorney fees are calculated after appropriate expenses have been deducted from the total recovery amount.

[1] Prima facie case simply means the establishment of a legally sufficient rebuttable case.  That is, the plaintiff met his or her initial burden of proof for a valid medical malpractice claim.

[2] A thorough discuss of the numerous technical details and nuances is well beyond the scope of this article.  To gain a better understanding of the complexities of and just how stringent the requirements for an expert witness against a specialist defendant are, examineNJSA§2A:53A-41(a) itself and Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013), in which the New Jersey Supreme Court analyzes each portion of the statute in great detail.

[3]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[4] The general acceptance standard of Frye has been relaxed for toxic tort cases by the New Jersey Supreme Court.  Kemp ex rel. Wright v. State, 809 A.2d 77, 84 (N.J. 2002).

[5] During the 2012-2013 regular session of the New Jersey Assembly, NJ A966 was introduced.  The bill sought to cap noneconomic damages in medical malpractice actions at $250,000.