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When we’re sick or injured, we put a lot of trust in medical professionals to take care of us and help us get better. The last thing we expect is for them to somehow act in a way that makes our situation worse. But unfortunately, medical providers do sometimes act carelessly — and the results can be life-changing. 

This guide will help you understand what medical malpractice is and how medical malpractice claims work in New Jersey. Medical malpractice cases are complex, and winning requires the right legal strategies, evidence, and experts. 

If you think a medical professional has made a mistake that caused you harm, you should contact a medical malpractice attorney right away. There are special rules and strict deadlines that apply to medical malpractice lawsuits. An experienced NJ personal injury attorney can help make sure you meet all requirements and build the strongest case possible so you can get the compensation you need to move forward with your life. 

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What is medical malpractice? 

Medical malpractice is when a health care provider (such as a doctor, nurse, dentist, or hospital) fails to provide the proper standard of care and, as a result, causes injury to a patient. The proper “standard of care” refers to the generally accepted practices and procedures that a professional with similar training and experience would’ve used under the same circumstances. 

Sometimes, medical malpractice is obvious (like operating on the wrong body part). But often, you won’t know if medical malpractice has occurred without consulting an attorney. Your attorney will analyze all relevant medical records and other evidence to determine whether the facts support a claim. If the facts appear to support a case, your attorney will select an appropriate medical expert to review the case. The expert will confirm whether or not they believe you have a claim. 

The opinion of an expert is important because in a lawsuit, expert testimony is generally required to establish:

• the standard of care, 
• whether the defendant deviated from that standard, and 
• whether that deviation caused your injury. 

Keep in mind that a bad medical outcome doesn’t necessarily mean anyone committed malpractice. A doctor can follow the appropriate standard of care and the outcome may not be what you or the doctor had hoped. That’s why it’s more important to look for unusual events around your treatment, such as poor management of your condition or evasive answers from the medical staff.

If you think you’ve been a victim of medical malpractice, you should document as much information as possible. That includes an account of events, medical records and test results, and the names of witnesses, doctors, nurses, and anyone else involved in your treatment. There are deadlines for filing a medical malpractice claim, so it’s important to take that information to a lawyer as soon as possible. 

Common forms of medical malpractice

In New Jersey, you can technically try to pursue a medical malpractice claim regardless of how serious your injury is. But preparing and litigating a medical malpractice case involves a lot of time, resources, and money. And medical malpractice lawyers usually work on a contingency basis. That means they won’t get any fees or expense reimbursements unless they win money in the case. As a result, lawyers typically won’t take on a case unless it involves serious injury or death.

Still, there are a wide range of medical errors that could be the basis of a successful medical malpractice claim. Below are some common examples of medical malpractice:

• Birth errors, including those resulting in cerebral palsy or Erb’s palsy
• Obstetrical errors, including during prenatal or postpartum care, such as inadequate monitoring, failure to conduct proper tests, or medication errors
• Surgical errors and mistakes, including incompetence, poor pre-op or post-op procedures, substance abuse by medical staff, and anesthesia errors
• Delayed diagnosis, failure to diagnose, and misdiagnosis leading to harmful treatment
• Emergency room, clinic, or facility issues, such as inadequate staffing, poor training, safety or sanitation problems, outdated equipment, or faulty procedures 
• Failure to treat, admit, or hold for observation
• Radiology and lab errors 
• Medication errors, including those related to prescribing, administering, dosage, mislabeling, or allergy-related negligence
• Preventable amputations
• Brain injury due to oxygen deprivation
• Defective medical devices
• Administrative errors, including poor documentation, patient history omissions, and insufficient screening  

Lack of informed consent may also be grounds for a malpractice suit. Informed consent is the process of a doctor getting permission from a patient to perform a medical procedure. Valid informed consent requires:

Doctors usually document informed consent by asking the patient to sign a form that outlines the treatment and its risks. But the doctor still must make sure that the patient is fully informed about the procedure before going ahead with the treatment. 

In certain emergency situations, informed consent is not required. An example would be if you were brought to the hospital and your life was in danger. For children or incapacitated patients, another person may be appointed to provide informed consent on their behalf. But otherwise, if the doctor does not get informed consent, and you suffer harm as a result, you may have a medical malpractice claim. 

Potential defendants in a medical malpractice case

When people think of medical malpractice, they typically think of a lawsuit against an individual doctor. But there are actually many different parties (individuals and entities) that may be responsible for medical malpractice. Examples include:

• Nurses
• Physician assistants
• Lab and x-ray technicians 
• Anesthesiologists 
• Pharmacists 
• Dentists
• Chiropractors
• Midwives
• Psychiatrists and other mental health professionals 
• Physical therapists 
• Hospitals, clinics, and outpatient surgery centers
• HMOs
• Nursing homes
• Any person or organization that employs any of the above

Who will be legally responsible in a case depends on the type of malpractice, where the malpractice occurred, and who was involved. Sometimes, it’s appropriate to only name the medical provider entity as a defendant. This would be the case if, for example, a systemic failure caused your injury, and not the negligence of any individual. Your attorney will be able to help you identify all responsible parties in your case.

What to do if you think you’re a victim of malpractice

If you suspect medical malpractice, you should take the following steps as soon as possible: 

Medical malpractice lawsuits are complex and involve special issues and procedures. This is not a type of case that you should pursue without the help of an experienced lawyer. An attorney will be able to help you:

• assess the facts of your case and enlist experts to confirm you have a viable claim; 
• gather critical evidence, including medical expert testimony, to support your case; and
• navigate complicated court procedures and legal requirements. 

When consulting with a lawyer, you should bring your medical records with you, along with a list of doctors and health care providers that you’ve visited. You should also bring any other documentation related to the injury, such as photographs, correspondence, and medical bills. The more information you can provide, the better the attorney will be able to understand what happened.

When assessing your case, the attorney will take a detailed history of all the medical treatment you’ve received. This will help them make sure they obtain all the appropriate medical records. They’ll then analyze your medical records and other available evidence. If it appears you may have a claim, they’ll choose an appropriate medical expert and send your case to that expert for review. 

If, in the medical expert’s opinion, your medical provider failed to administer the proper standard of care, and you were harmed as a result, you may be able to proceed with a lawsuit. This initial investigation can take several months, so it’s important to consult an attorney as soon as possible. Most medical malpractice attorneys will be happy to provide an initial consultation free of charge. 

What to look for in an attorney

Choosing the right attorney can make a big difference in the outcome of your case. Here are a few things you should look for when hiring a medical malpractice lawyer:

One of the greatest concerns for victims of medical malpractice is how long the case will take before they see a monetary reward. This is understandable, especially if the injury impacts your ability to work. You may be worried that you won’t be able to support yourself if the case takes a long period of time. 

Unfortunately, this legitimate concern is not easily addressed. On average, medical malpractice cases take years to resolve. And a case taking several years does not mean that a lawyer is bad. To the contrary, the best way to ensure the largest monetary award is to prepare and negotiate a case as thoroughly as possible. There are many law firms that don’t take this approach. Instead, they resolve cases as quickly as possible for smaller amounts. They make up for lower awards by handling a larger volume of cases. This only benefits them, but is a detriment to you, the client. When vetting a medical malpractice law firm, this is definitely a red flag to look out for.

Looking for help selecting the best medical malpractice lawyer in New Jersey?

At Rosenblum Law, we understand the devastating effects medical malpractice can have on your life. We’ll thoroughly evaluate your situation and determine the best course of action for your particular circumstances. If we’re able to take on your case, we’ll guide you through the legal process and fight on your behalf for maximum compensation. 

We also provide guidance for those looking for help selecting the best law firm for their case. We have a large network with dozens of law firms that we have pre-screened to ensure that you will get the best law firm for your specific case.

For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.

Pursuing a medical malpractice case is a big decision. Even if you’re struggling physically and financially, you may have other considerations on your mind. Below are a few common concerns patients have when deciding whether or not to sue their doctors.

If you’re having any doubts about pursuing a medical malpractice claim, you should at least consult an experienced medical malpractice attorney. Many attorneys are happy to provide a free initial consultation, and they can help answer your questions and talk through any apprehensions you may have. 

There are strict deadlines for filing a medical malpractice lawsuit, so it’s important to talk to an attorney as soon as possible. If you deliberate too long, you may no longer be able to pursue your claim at all. 

You aren’t the “suing type”

Most people who sue for medical malpractice aren’t the “suing type.” In fact, it may be the only lawsuit they file in their entire lives. And there are many legal requirements for winning a lawsuit, which means that if you haven’t experienced any real harm from a medical mistake, you won’t be able to pursue a medical malpractice case in the first place. See Pursuing a Medical Malpractice Claim. 

But if a medical provider’s mistake did cause a serious injury, you’re the one who ends up suffering, not just from the physical consequences — but also the financial burden. Medical bills can pile up quickly. And if you’re unable to work, or limited in your ability to work, you can lose income well into the future. In these situations, you should not shoulder the burden alone. The person or entity responsible for your injuries should provide appropriate compensation.  

Everyone makes mistakes

It’s true that everyone makes mistakes. But that doesn’t mean they shouldn’t take responsibility for those mistakes, especially if they were avoidable. Pursuing a medical malpractice case is one way to hold your doctor accountable. While an apology is nice, it doesn’t change the impact of your injury on your life. You still have to face the physical, emotional, and financial consequences. 

It’s also very possible that a doctor who didn’t give you the appropriate standard of care also failed to give the appropriate care to other patients — and may continue doing so in the future. Legal action can help ensure that doctors realize the consequences of their errors and make necessary changes so it never happens again. 

You don’t think your injuries are that bad

If your injuries are minor, a medical malpractice lawsuit might not seem to make sense. But people often downplay the seriousness of their injuries because they don’t want to be viewed as a complainer. Moreover, some injuries don’t exhibit symptoms until weeks, months, even years later. 

A medical malpractice attorney can review your records and engage the right medical experts to evaluate your present situation and likely future issues. Even if you initially feel that your injuries aren’t so bad, you could be entitled to compensation for medical expenses, lost wages, and perhaps pain and suffering. If you have an injury that has affected your life physically or financially (or that may affect you in the future), you should seek legal advice before deciding it “isn’t that bad.” 

You like your doctor and don’t want to harm them 

Many people like their doctors — that’s why they chose to work with them. But unfortunately, being a nice person doesn’t mean that he or she didn’t cause real harm to you. And even if your doctor generally provides good care, that also doesn’t mean they didn’t make a serious mistake in your particular instance.  

If your doctor didn’t provide you with the appropriate standard of care, you deserve to be compensated for any resulting harm. And again, by holding your doctor accountable, you may also help keep him or her from injuring other patients in the same way. A medical malpractice lawsuit does not mean the doctor will automatically lose his or her license or go out of business. While the doctor will have to participate in the legal process, he or she will still likely be able to see patients and work as usual. The state medical board may also investigate, and the doctor may face consequences such as censure or mandatory training, but license revocation is rare. It’s usually reserved for only the most extreme cases. Your attorney can help you understand all the potential consequences of filing a claim.

Of course, deciding whether to sue your doctor is entirely up to you. If you want your doctor to continue treating you, then it’s not a good idea to sue him or her. But you should keep in mind that if you don’t pursue a medical malpractice claim before the legal deadlines, you will never be able to get compensation for your injuries. You’ll have to live with the physical and financial effects of your injuries, and your doctor will never have to face the consequences of the error. 

Another thing to remember is that sometimes medical injuries result from systemic errors, and not the mistakes of an individual doctor. In that case, you may not have to sue your doctor as an individual at all. Instead, you would sue the responsible entity, such as the hospital. See Introduction — Potential defendants in a medical malpractice case. However, it’s difficult to uncover these kinds of “hidden” mistakes on your own. This is another reason to consult an experienced attorney as soon as possible.

You’re worried about the time and money involved with a lawsuit

Medical malpractice lawsuits generally do take years to resolve. But if you’ve suffered a serious injury, it’s worth the wait. You can help the process along by taking the steps outlined in Introduction — What to do if you think you’re a victim of malpractice as soon as possible. That includes seeking the advice of an attorney. While you will have to participate in the process, your attorney will do the heavy lifting for you and guide you every step of the way.

You also should not have to pay any costs up front. It’s standard for medical malpractice lawyers to take cases on contingency. This means that they won’t get any attorneys’ fees unless they win a settlement or award for you. They’ll also advance any expenses, such as fees for medical experts, obtaining records, and depositions, which will also be reimbursed from any amount they win for you. If a lawyer insists you pay fees up front, you should find a new lawyer immediately. 

You’re worried about what your friends and family will think of you

Fear of looking bad is completely normal. But you also have to keep in mind that the consequences of medical malpractice are deeply personal and affect you in ways that only you know. Your friends and family may be empathetic, but they can never truly understand how the pain and suffering, medical bills, and lost wages are truly affecting you. Friends and family who have your best interests in mind should understand how important compensation is for you to move on with your life. 

While your attorney will guide you through the entire process, it’s helpful to have at least a basic understanding of the legal process. Knowing what to expect can help you alleviate some stress,  avoid mistakes that could hurt your case, and gather the right evidence. Below is a basic overview of how medical malpractice cases work. 

Statute of limitations 

One of the most important things to know about medical malpractice is that there’s a strict legal deadline for filing a lawsuit. This is called the “statute of limitations.” In New Jersey, the statute of limitations gives you only two years to file your lawsuit. For birth-related injuries, cases filed on behalf of a minor plaintiff generally must be started prior to the minor’s 13th birthday. If you file after this deadline, the court will likely dismiss your case.

The two-year timeframe generally starts on the date the harm was inflicted — that is, on the date of the alleged medical error. Sometimes, however, the clock starts running on the date you discovered (or could’ve reasonably discovered) that you were harmed. For example, if you had surgery but didn’t discover until three years later that the surgeon left a surgical instrument in your body, you might have two years from the date of that discovery. When you consult with an attorney, they’ll confirm that the statute of limitations hasn’t passed for your case.

Also keep in mind that state-owned medical facilities and state-employed health care providers are entitled to special notice of your intention to file a lawsuit. You must give this notice within 90 days of the malpractice. This is another reason to consult an attorney right away. If you fail to give proper notice, your claim may be barred. 

Elements of medical malpractice claim

While it’s always unfortunate when a doctor makes a mistake, a medical error alone is not enough to win a medical malpractice case. Proving a medical malpractice claim actually requires showing four things (called “elements”):

If your case goes to trial, a judge or jury will decide whether or not malpractice occurred and the amount of damages if it did occur. If, during the process, certain legal requirements aren’t met, the judge may dismiss the case. 

Note that in general, only the injured patient can sue for medical malpractice. The exception is if the patient can’t advocate for themselves due to age or incapacity. In that case, a family member might sue on their behalf. If a patient dies, certain family members may also be able to start a wrongful death lawsuit. 

Building a medical malpractice case

Building a strong medical malpractice case requires gathering evidence of the medical error. Your attorney will thoroughly investigate your case and help gather evidence, but as soon as you suspect malpractice, you should start collecting as much information as you can. Below is an overview of the types of evidence that you’ll need in your medical malpractice case.

Medical records

Your medical records will be one of the most important pieces of evidence in your case. These records may include, among other documents:

• Evaluations 
• Physicians’ notes
• Test results
• Radiology images
• Prescriptions
• Treatment plans

You have the right to obtain copies of your medical records. It’s best to get these records as soon as you suspect malpractice. If you were cared for by multiple medical providers, you may have to make separate requests to each provider. Note that the provider may not charge you a “search” fee or deny your request because you have unpaid bills. They may only charge a reasonable fee for copying and mailing the records. 

Other evidence

In addition to your medical records, you should document as much information about your treatment as you can. That includes names of medical professionals you interacted with, such as doctors, nurses, technicians, and administrators. It’s also important to write down what you can remember about your interactions. Your attorney may interview some of these individuals later on as part of building your case. 

It’s also helpful to try to create a timeline. Your timeline should include any relevant events, such as dates of appointments, any hospital stays, and treatments. This information will help your attorney make sure you have all the right evidence for your case. 

The role of experts

Engaging the right medical experts is a critical part of a medical malpractice case. Any expert engaged in your case must be a licensed physician in the same field as the defendant and be able to administer the same care that’s the subject of the case. Your attorney will have to enlist the help of such experts to review your case, provide an “Affidavit of Merit,” and provide testimony at trial. See The litigation process below.

Without expert testimony, you generally won’t be able to establish the appropriate standard of care, whether the defendant deviated from that standard, and whether that deviation caused your injury. Sometimes, the error may be so obvious that an expert isn’t needed to testify as to what the standard of care should be. But this is rare. An example would be if a doctor operated on the wrong leg. But even in this case, you’ll need medical experts to establish your damages.

Given the importance of experts to your case, you should choose an attorney with access to qualified experts. Having highly qualified experts on your side can have a big impact on your ability to win a case. The better the expert, the more believable the expert will be during trial. 

Evidence that can’t be used

Sometimes, the defense will have documentation of their error that you will not be able to use in your case. In 2004, the New Jersey Patient Safety Act (the “PSA”) was passed. Under the PSA, health care facilities must report serious medical errors to the Department of Health. The purpose of the PSA is to encourage healthcare facilities to internally review serious medical errors so that they can prevent similar errors in the future. 

Any documents created by healthcare facilities solely to comply with the PSA are confidential. This means in a medical malpractice case, you won’t be able to get these materials and use them as evidence against the medical provider. 

Valuing a medical malpractice case

Valuing a medical malpractice case is not an exact science. It will largely depend on the type of malpractice and your resulting injuries. Generally, however, the compensation (or “damages”) you can receive in a medical malpractice case falls into three categories:

The litigation process

Once you’ve consulted with an attorney and a medical expert has reviewed your case, your attorney will determine whether it makes sense to move forward with a lawsuit. If they decide to take on your case, here’s what the legal process will look like:

While there’s no set time frame for resolving a medical malpractice claim, preparing a case and going through the trial process can take years. How long your case will take depends on how busy the court is, the complexity of your case, and how willing all parties are to cooperate and negotiate. 

The modified comparative fault rule

When pursuing a medical malpractice case, you’ll have to keep in mind that New Jersey follows a modified comparative fault rule. This means that if you are partially responsible for your injuries, any damages will be reduced in proportion to your percentage of fault. If your percentage of fault is greater than all of the defendants’ fault combined, then recovery will be barred completely. The judge or jury in your case will be responsible for assigning fault.

An example of this rule would be if a doctor was negligent in setting a broken bone, but you also engaged in heavy lifting against the doctor’s orders. A jury could find that both the doctor’s negligence and your actions contributed to the bone not healing properly. If the jury finds that you were 10% at fault, the doctor was 90% at fault, and the damages are $100,000, then you would recover only $90,000. If the jury found you 51% at fault for the injury, you wouldn’t recover anything.

Settlements and mediation

Throughout the legal process, the attorneys may try to resolve the case out of court through negotiations. Resolving a case out of court is called a “settlement.” While some cases will settle, it’s not guaranteed. Medical malpractice claims typically settle less often than other types of cases. This is because the defendant-physician usually must agree and consent to any settlement — even if their insurance company wants to settle. And many doctors prefer to aggressively defend the cases, since if they win, the malpractice won’t go on their record.

Settlement may be reached through direct negotiations. Or sometimes, when both parties to a lawsuit want to resolve the claim out of court, they may also agree to mediation. Mediation is a proceeding where a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. Mediators are often retired judges, attorneys, or other court personnel. 

There are no set rules for a mediation. Instead, it’s usually guided by the mediator’s own style and method. The mediator will listen to both sides and make sure everyone gets a chance to tell their story and ask questions. The idea is that this process will help both sides come to an understanding and fair compromise. Of course, sometimes that isn’t possible. If you can’t reach a compromise through mediation, you can still proceed with your case in court. 

It’s important not to take any settlement offer without consulting an attorney first. Your attorney will be able to review your case and engage the right medical experts to confirm the value of your case. Settlement offers — especially early in the process — are typically much less than the amount your case is truly worth. It takes a skilled negotiator with medical malpractice experience to reach a settlement that’s fair. Sometimes, it may not be possible to reach a settlement that properly compensates you for your injuries. In that case, it may be best to go to trial. Whenever you’re presented with a settlement offer, your attorney will be able to advise you on the best path forward.

New Jersey Medical Malpractice Case Law Examples

Germann v. Matriss, 55 N.J. 193 (1970)

On December 23, 1964, the plaintiff’s wife had 11 teeth extracted and replaced with an acrylic denture by her dentist. The plaintiff’s wife developed symptoms of tetanus on December 29th and died two days later on January 1st. Her husband sued the dentist, claiming that he had committed medical malpractice by failing to properly sterilize the acrylic denture. After a trial, the jury found the dentist not liable. On appeal, the Superior Court reversed the verdict and ordered a new trial, but the New Jersey Supreme Court reinstated the original verdict. The court reasoned that the plaintiff could not prove with a reasonable probability that the tetanus infection came from the denture and not some other source. Tetanus spores are common in the environment and even inside the human body, and only cause disease when deprived of oxygen. Because there was no proof that the spore that infected the plaintiff’s wife was on the denture and not already in her mouth or on an eating utensil she used after the procedure, the court held that it was not reasonably probable that the denture was the cause of her death. This case illustrates that to win a medical malpractice case, a plaintiff must prove that a doctor’s negligence probably, not just possibly, caused an injury or death.

Evers v. Dollinger, 95 N.J. 399 (1984)

In Evers v. Dollinger, the plaintiff visited her doctor after finding a lump on her breast. After an examination, the doctor told her the lump was benign and that she should not worry about it. Seven months later, after the lump had grown four times larger, the plaintiff was diagnosed with breast cancer. She had to have a mastectomy and learned that the cancer had metastasized to the rest of her body. She sued the doctor for medical malpractice, arguing that if he had correctly diagnosed the cancer at the first visit, she might have been able to get treatment before the cancer grew and spread. The New Jersey Supreme Court allowed the case to proceed to a jury. Although the plaintiff could not prove with certainty that her cancer would not have spread if caught seven months earlier, the seven-month delay increased the risk of it spreading. This case shows that even when it’s impossible to be sure what would have happened if a doctor hadn’t been negligent, courts will find doctors liable if there’s a significant probability that the doctor’s negligence caused harm. The court also allowed the plaintiff to recover damages for emotional suffering.

Scafidi v. Seiler, 119 N.J. 93 (1990)

In Scafidi v. Seiler, the plaintiff, a woman who was seven months pregnant, was confined to bed rest at home after experiencing severe bleeding. Later during the day, she called her doctor to report abdominal cramps. Without examining her in person, the doctor prescribed pills to her to calm the cramps. However, the plaintiff was actually experiencing premature labor, which the pills could not prevent. As a result, she gave birth to a severely premature baby who died shortly after being born. She sued her doctor for medical malpractice, arguing that if she had been examined in-person instead of over the phone, the doctor would have recognized the premature labor and prescribed a more effective treatment that might have stopped the premature labor and saved the baby. The New Jersey Supreme Court decided that she could bring a medical malpractice claim even though the alternative treatment might not have saved the baby. Because the doctor knew of the plaintiff’s bleeding earlier in the day, he was aware that she was at risk. Therefore, he had a duty to guard against the risk. Even though the actual cause of the premature birth and death was the plaintiff’s underlying condition, the doctor’s negligence deprived her of a chance to save the baby. Therefore, the court ruled that she could receive damages based on the chance that the alternative treatment could have worked. This case demonstrates that a patient can win a medical malpractice suit even if the doctor didn’t directly cause harm and only failed to reduce the risk of harm.

If you suspect you or a loved one has been the victim of medical malpractice, you likely have a lot of questions about your case. Below are answers to some common questions we receive about medical malpractice in New Jersey. But keep in mind that every case is different. If you’d like to discuss the specifics of your case, you should contact a New Jersey medical malpractice attorney. 

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