If you think you have a medical malpractice case, things can get complicated—and not only because of the medical and legal issues inherent in these kinds of cases. As in many states, New Jersey has special procedural rules for medical malpractice lawsuits, with the "tort reform" goal of deterring the filing of injury claims against health care providers that don't have a legal basis or are just plain frivolous. The most important of these rules is the expert-affidavit requirement, which we'll summarize here.
New Jersey's Expert-Affidavit Requirement
New Jersey Statutes section 2A:53A-27 says that in any lawsuit alleging malpractice by a licensed professional (including a medical malpractice lawsuit against a doctor, hospital, or other health care provider), the plaintiff must provide each defendant with an affidavit from an "appropriate licensed person" (basically, an expert in the same field). In the affidavit, the expert must state "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." (Learn more about how different treatment errors can affect a medical malpractice case.)
In other words, in order to make sure your medical malpractice claim is successful, you must have a qualified expert declare under oath that it appears the defendant (i.e. your doctor and/or the hospital where you were treated) provided substandard care when treating you. Unlike similar requirements in other states, New Jersey's law does not require the expert to give an opinion in the affidavit as to whether that failure to meet the standard of care actually caused your injuries. (Learn more about what's required to prove a medical malpractice case in court.)
A separate affidavit must be prepared and provided to each defendant in the lawsuit within 60 days after the defendant has filed a formal response (called an "answer") to the plaintiff's complaint. However, the court has the leeway to grant an additional 60 days if there is "good cause" to grant the plaintiff's request for an extension.
New Jersey's Qualifications for Experts
The expert who signs the affidavit must meet the detailed qualifications spelled out in New Jersey Statutes section 2A:53A-41. Usually, the expert's area of specialty must mirror that of the defendant health care provider. For example, if a general practitioner is being sued for malpractice, the plaintiff's affidavit of merit must be prepared by a qualified expert who, during the year leading up to the alleged malpractice, devoted most of that person's professional time to:
- active medical practice as a general practitioner, or active medical practice in an area that encompasses the medical condition for which the plaintiff was being treated or the procedure being performed on the plaintiff at the time the alleged malpractice occurred, and/or
- teaching in an accredited medical (or similar) school in the same health care profession as the defendant.
What Happens If You Don't Meet New Jersey's Expert-Affidavit Requirements?
Generally, if you don't provide the required expert affidavit the judge will dismiss your medical malpractice lawsuit "with prejudice." This means that you won't be able to refile the same lawsuit, and you'll lose your opportunity to get any compensation for your losses. But if you've provided an expert affidavit that substantially meets the requirements even though it has some small problems, the judge may dismiss your case without prejudice, giving you the chance to try again.
As a substitute for complying with the affidavit requirement, New Jersey Statutes section 2A:53A-28 allows you to submit a sworn statement that the defendant has failed to provide medical records that are needed to prepare an expert affidavit, and that at least 45 days have gone by since you requested those records (by certified mail or personal service). You'll usually need to supplement your claim with proper documentation of your request.
New Jersey's courts have recognized other very limited circumstances when you can get by without an expert affidavit. Under what's known as the "common knowledge" exception, an expert's specialized knowledge wouldn't be necessary to show whether it's likely that the defendant failed to meet the standard of care, because the negligence would be obvious to anyone with ordinary experience and intelligence. This exception might apply, for instance, when a scalpel was left in the patient's body following surgery, or when a doctor didn't tell a patient that x-rays clearly showed a needle in the patient's chest.
Finally, keep in mind that your case won't go anywhere if you don't meet the filing deadline in New Jersey's statute of limitations for medical malpractice lawsuits.
If all of this sounds complicated, a New Jersey medical malpractice attorney will be familiar with the rules and will have the skills to navigate them. Learn how to choose the right medical malpractice lawyer for you and your case.