The New Jersey medical malpractice laws require an injured party to file their claim within two years from the date the incident occurred or from the date they discovered the condition. It is one of the few states where physicians are not required to carry liability insurance. Therefore, you should check the background of your doctor, if possible, before putting your life in their hands.
How is Negligence Determined?
The ability to prove negligence is the key element in any malpractice claim. A successful lawsuit will depend on the plaintiff’s ability to prove that the defendant was negligent in their duty. In order to do this, the following four factors must be established:
- A duty of care was owed to the victim—This means that the injured party must show that the medical professional had a relationship with the victim, i.e. a doctor/patient relationship existed.
- A breach of duty occurred—The defendant breached their duty to the patient by not doing something they should have done, or doing something that caused harm.
- Proximate cause—The burden of showing what caused the injury remains on the plaintiff. They must prove that the defendant was the main cause of injury to the plaintiff.
- Damages should be awarded—The type and amount of damages will depend on state laws and how the victim’s life has been affected.
When bringing a legal action against a medical professional, New Jersey requires the plaintiff’s case to submit testimony by an expert witness. The witness must be a licensed professional practicing in the same field of medicine as the defendant. If you are suing an obstetrician, your expert witness must also be an obstetrician. This can be difficult because doctors may not want to testify against their colleagues.
Comparative Negligence
Each state has its own laws regarding how liability is determined in a malpractice case. New Jersey follows the rules of comparative negligence. This determines how each party will share the responsibility for the incident. An injured party can still recover damages even if they were partly at fault. The rules for comparative negligence determine the amount of fault to be assigned to each party. The laws of New Jersey uses a 51% bar rule, which means that if the victim is 50% or less at fault, they can still recover damages. If they were found to be 51% or more to blame, they will be precluded from seeking any damage award. Any defendant who is found to be 60% or more responsible will be held liable for paying the entire amount of damages being sought.
Types of Damages That Can be Recovered
A plaintiff can recover compensatory damages, which are supposed to compensate the victim for their injuries. These can be broken down into two sub-categories, actual and general damages:
- Actual Damages - These are given to reimburse the plaintiff for their financial losses, such as lost wages due to not being able to work, household costs during recovery, medical expenses including prescription drugs.
- General Damages - This would include damages for pain and suffering, permanent disfigurement, loss of the ability to enjoy life or have normal marital relations with their spouse. A victim can also recover damages for future lost wages and medical bills.
- Punitive Damages - These types of damages are limited in the amount that can be awarded to the plaintiff. They can be the sum of $350,000 or be awarded at 5 times the amount given for compensatory damages. Punitive damages are used as a way to punish the defendant for their grossly negligent behavior and are meant to act as a deterrent from repeating similar behavior in the future.
Getting Help from an Attorney
Medical malpractice can occur anytime a healthcare provider is negligent. Errors made during surgery can leave a patient with a serious medical condition, requiring life-long care. Each case has its’ own specific facts, but an experienced attorney will be able to tell you if your case has merit so you can proceed with a lawsuit.
