A Medical Malpractice Primer
Courtesy of Rosemary E. McGeady, Esq., Levinson Axelrod
It really does matter which attorney you choose—now that attorney can also be a medical doctor
Call me at 1-800-34NJLAW or email me at mcgeady@njlawyers.com
~New Jersey Medical Malpractice from A to Z~
Affidavit of Merit—An Affidavit of Merit is required whenever a suit is brought in New Jersey against certain licensed professionals, including doctors. Within 60 days of filing the action the plaintiff must file an affidavit by a doctor in the same specialty stating that there is a reasonable probability that the care, skill or knowledge exercised in the treatment fell outside acceptable professional standards or treatment practices.
Battery—In a medical malpractice context, a claim for battery usually arises when the doctor exceeds the boundaries of the consent. In a recent highly publicized case, the patient specified that cadaveric bone was not to be used in his bone graft. When the doctors used some cadaveric bone anyway, they were liable for battery.
Board of Consumer Affairs—The New Jersey Board of Consumer Affairs has a website that enables consumers to check any malpractice settlements or judgments against their medical doctor, podiatrist or optometrist in the last 5 years. The link to the website is: http://12.150.185.184/dca/.
Causation—Is the factor most difficult to prove in any medical malpractice action. The plaintiff must prove that the deviation from the standard of care caused his injury resulting in the damages claimed.
Comparative Negligence—In NJ, we have the doctrine of modified comparative negligence. Under this rule, a plaintiff’s action is barred if his negligence exceeds the combined negligence of all the defendants. This is in contrast to the strict contributory negligence rule in common law, under which even 1% negligence on the part of the plaintiff negated his ability to bring an action.
Consent—In NJ, the doctor is required to obtain an informed consent on every patient prior to any procedure or surgery. This consent process required the physician to explain the procedure in detail including the most common risks of the procedure. Lack of informed consent cases are becoming more common medical malpractice cases in NJ.
Contingency—Most medical malpractice cases are handled on a contingency basis. Contingency means that the law firm pays the expenses of the case up-front. These expenses are “forgiven” if the lawyer loses the case. If successful, expenses are paid back first, and then the law firm is compensated according to a formula put in place by the New Jersey Supreme Court. This formula requires that the attorney fees be no more than 33 1/3 of the first $500,000; 30% of the next $500,000; 25% of the third $500,000; 20% of the fourth $500,000. The court determines a reasonable fee for amounts in excess of $2 million dollars. If the client is a child or an incompetent, the lawyer’s fee is limited to 25% after expenses.
Damages—Are the result of the medical negligence. Damages may include economic damages—such as medical bills, the costs of medication and lost wages—or non-economic. The most common non-economic damages in medical malpractice cases are damages for pain and suffering.
Discovery Rule—In NJ, the timing of a suit is subject to the discovery rule. Under this rule, the plaintiff has 2 years to file suit from the date he “discovers” (a) the injury and (b) that this injury was due to the fault of another. For example, if a surgical instrument is left behind in a patient and is not discovered until 10 years later, the patient has 2 years from learning of the retained item to bring suit.
Duty—Is the first element in any negligence claim. The plaintiff must prove that the defendant owed a duty to the plaintiff. In medical malpractice cases, this element is usually easy. Any treating doctor, hospital or nurse has a duty to treat any patient under their care.
Emotional Distress—Certain claims can be derivative of the plaintiff’s main claim. A claim for emotional distress, also known as a Portee claim, is a derivative claim. Such claims are sometimes brought by close family members who witnessed the malpractice. It is difficult to prevail in this action, however, as the close family member needs to have recognized the malpractice as negligence while it was occurring.
Fees—See Contingency.
Good Samaritan Act—Provides immunity to suit to any first responder at an accident or injury. The Good Samaritan Act does apply to health care professionals at the scene of an accident. It does not apply to doctors or nurses while working in a doctor’s office or in the hospital.
HIPAA—Health Insurance Portability and Accountability Act. This Act protects the privacy rights of patients. There is, however, no private cause of action for individuals under HIPAA.
Immunities—The State, townships and municipalities are protected by certain immunities. Charitable immunities also often exist. This means that suits against government agencies are subject to a number of restrictions. Certain suits are barred altogether under these immunities.
Joint and Several Liability—NJ is a joint and severable liability state. In the case of multiple defendants, the one defendant whose negligence is apportioned by the jury to be 60% or more can be held liable for the full award.
Knowledge, common knowledge doctrine—The common knowledge doctrine holds that expert testimony is not required in those cases where the jury can tell from their own common knowledge and experience the standard of care to use in deciding whether a defendant was negligent. Common knowledge has little place in medical malpractice actions which are by their nature a form of professional malpractice; expert testimony is always required in medical malpractice cases.
Liens—Certain entities, such as Medicaid or Medicare, may have the right to attach a lien against a medical malpractice judgment. Such liens mean that the entity has the right to be paid back, either in part or in whole, for the medical bills the entity paid for the patient.
Medicaid—Being on Medicaid does not affect your rights to bring a medical malpractice action. However, Medicaid may assert a lien on any settlement or judgment attained.
Negligence—Is a kind of tort. Negligence requires 4 elements: (a) a duty, (b) a breach of that duty, (c) injury proximately caused by the breach and (d) resultant damages. Medical malpractice is a type of professional negligence action.
Opinions—expert—See Affidavit of Merit, Knowledge, common knowledge doctrine.
Patient’s First Act—This Act was passed by the NJ Legislature in 2004 and provides several substantial changes to how medical malpractice law is practiced in NJ. Among other things, it requires that individuals providing an Affidavit of Merit against a Board Certified physician be Board Certified in the same specialty as the defendant physician.
Punitive Damages—Punitive damages are also called exemplary damages and are meant to “punish” the defendant. Punitive damages have little application to medical malpractice cases. These damages are “capped” in NJ to no more than 5 times the compensatory damages or $350,000, whichever is greater.
Quod (per quod)—Per quod claims are derivative claims that are sometimes brought in a medical malpractice action. An example of a per quod action would be one brought for loss of consortium or loss of services of a spouse due to a malpractice related injury.
Res ipsa loquitor—Translated from the Latin, it means “The thing itself speaks.” A res ipsa case is one in which the thing itself bespeaks negligence, the instrumentality causing the injury is within the defendant’s sole control and the plaintiff is blameless. A good example of a res ipsa medical malpractice case is one where a surgical instrument is left behind in a patient.
Statute of Limitations—The Statute of Limitations prevents a lawsuit from being brought after a certain statutory period. In NJ, the Statute of Limitations in a medical malpractice claim is 2 years.
Tort Claims Act—The Tort Claims Act defines the procedures that must be followed when suing a governmental agency. When suing any agency of the State or of a municipality or township, one needs to file a Tort Claims Notice within 90 days of the discovery of the malpractice. The University of Medicine and Dentistry of NJ is a State Agency, and the doctors at UMDNJ are State employees. As such, a Tort Claims Notice needs to be filed within the 90 day period when suing an Attending Physician or a house physician at UMDNJ. Failure to file this notice in time can lead to the loss of a Plaintiff’s right to sue.
Tolling—The Statute of Limitations can be tolled in certain instances—during childhood, called “infancy” and in the case of an individual who is incompetent at the time the malpractice occurs. Tolling rules are complicated and specific, however. Never assume that you have more than 2 years to file suit.
UMDNJ—See above, UMDNJ is a governmental agency. Doctors at UMDNJ require Tort Claims Notice.
Vicarious Liability—In New Jersey, a hospital is not generally liable for the actions of physicians who are not employees. Physician employees at UMDNJ hospitals and their affiliates must indicate this fact to their patients both orally and in writing. They should also wear employee identification badges identifying themselves as employees of UMDNJ.
Wrongful Death—A wrongful death action is brought by the close relatives of the deceased, usually by the spouse. In NJ, the Wrongful Death Statute as it is presently constructed compensates the bereaved family primarily for the economic loss they have suffered. We are actively advocating for the passage of a bill currently under consideration that would increase the non-economic damages recoverable under a wrongful death action.
X-rays—Critical in importance in a medical malpractice case. A patient should always request a copy of their films and keep their own file. Most x-rays now are available in CD form which both decreases cost and increases convenience.
