Medical Malpractice in New Jersey: How a Claim Works

A medical malpractice claim in New Jersey requires proof that a doctor, nurse, hospital or other licensed provider failed to meet the accepted standard of care and that this failure caused you harm. New Jersey also requires an Affidavit of Merit from an appropriately credentialed physician early in the lawsuit, and the claim generally must be filed within two years of when you learned, or should have learned, of the injury and its likely cause.

These are demanding cases. The paragraphs below explain what has to be proved, the procedural steps that are specific to New Jersey, and how to protect a possible claim.

What counts as medical malpractice in New Jersey?

Malpractice is professional negligence. It generally has four parts:

• A provider-patient relationship that created a duty of care.
• A departure from the accepted standard of care, meaning the provider did something a reasonably careful provider in the same field would not have done, or failed to do something one would have done.
• Causation, meaning the departure caused or substantially contributed to the harm.
• Damages, such as additional medical treatment, lost income, pain and suffering, or a worse outcome than you otherwise would have had.

Common examples include a missed or delayed diagnosis, such as cancer or a stroke; surgical errors; medication errors; birth injuries; and failures in hospital monitoring after surgery. Because the standard of care is a medical question, these cases generally require testimony from qualified physicians on both the standard of care and causation.

What is an Affidavit of Merit, and why does it matter?

New Jersey's Affidavit of Merit statute (N.J.S.A. 2A:53A-27) is a screening step for claims against licensed professionals. After the defendant answers the complaint, you generally have 60 days to serve an affidavit from an appropriately credentialed physician stating that there is a reasonable probability the care fell outside acceptable professional standards. The court can extend that period once, for up to 60 more days.

The physician generally must practice in the same field as the defendant, and the credential requirements can be technical. Early in the case, courts hold what is known as a Ferreira conference to confirm the affidavit has been served and to address any objections. Missing or defective affidavits can end a claim, so this step deserves careful attention from the start.

How long do you have to file a malpractice claim in New Jersey?

The general deadline is two years (N.J.S.A. 2A:14-2). Under the discovery rule, that period can start when you knew, or reasonably should have known, that you were injured and that a provider's fault may have been responsible, rather than on the date of treatment. Courts apply the discovery rule to the facts of each case, so it is safer not to rely on it.

Other timing rules to know:

• Birth injuries. A claim for injuries to a newborn at birth generally must be filed before the child's 13th birthday.
• Other injuries to children can follow different rules, which should be checked for each situation.
• Public providers. If the provider is a public hospital or public employee, a notice of claim is generally due within 90 days under the Tort Claims Act (N.J.S.A. 59:8-8).
• A death caused by malpractice follows the wrongful death deadline, generally two years from the death. See our page on wrongful death claims.

What damages are available in a New Jersey malpractice case?

New Jersey does not cap compensatory damages in malpractice cases generally. A claim can include past and future medical costs, lost earnings and earning capacity, and pain, suffering and loss of enjoyment of life. A spouse may have a separate claim for loss of companionship and services.

Punitive damages are rare in malpractice cases. When they are awarded, they are capped at the greater of five times the compensatory damages or $350,000 (N.J.S.A. 2A:15-5.14). Claims against certain nonprofit hospitals can be subject to a separate statutory limit, which is one reason to identify early exactly which entity employed the people involved.

Our article on what damages you can recover after an injury in New Jersey explains these categories in general terms.

What should you do if you suspect malpractice?

• Get the care you need now, including a second opinion if something feels wrong.
• Request your complete records from every provider involved, including nursing notes, test results and imaging.
• Write down a timeline while your memory is fresh: dates, names, what you were told, and by whom.
• Avoid signing releases or discussing fault with a provider's insurer before getting advice.
• Don't wait. Because of the Affidavit of Merit and the record review it requires, a malpractice case takes time to evaluate before it is filed.

Talking to a lawyer about your situation

A lawyer can review your records, arrange an independent physician's review, and tell you honestly whether the facts appear to support a claim. Gray Law Group offers a free initial consultation; call 973-240-7313. Our guide to choosing a personal injury lawyer explains how contingent fees and case costs work in New Jersey.

Our office is in Jefferson, Morris County, and we represent patients and families throughout Morris, Sussex, Warren and Passaic counties and northern New Jersey.