(908)402-4770Of course, our society trusts hospitals and medical professionals to take care of us when we are sick. Indeed, most people put a special trust in the doctors, nurses, surgeons, and other medical professionals who treat us. However, medical professionals are human. They sometimes make mistakes. When they make a mistake, the injured patient may need to consult with an experienced New Jersey medical malpractice attorney.
In New Jersey, medical malpractice occurs when a medical professional breaches the duty of professional care. This breach takes the form of an act or omission that directly injures a patient.
Medical Malpractice Happens More Than You Know
Unfortunately, medical malpractice is common in the United States. This makes medical malpractice one of the leading causes of death in this country.
Medical malpractice lawsuits can be filed by injured patients against negligent hospitals and professionals. Medical negligence refers to a negligent act or failure to act which injures a patient. If the injured patient shows the negligent act caused their injury, a jury can award them various damages. This includes medical expenses, lost wages, and emotional suffering. There are several types of medical malpractice that happen:
Anesthesia Errors
Generally, there are three types of anesthesia with distinct purposes. Those are general, regional, and local. Each type of anesthesia carries the risk of complications.
One of the most common and serious complications is anesthesia awareness. This is also called intraoperative awareness. Anesthesia awareness occurs when a patient regains consciousness during surgery. If anesthesia is used incorrectly and injures a patient, the patient can sue the responsible medical professional.
Some examples of negligence by an anesthesiologist include administering the wrong type of dose of anesthesia. Another example is giving the anesthesia dose too late – failing to put a patient under anesthesia.
Birth Injury
The birth of a child should be a joyous occasion. Unfortunately, that doesn’t happen all the time. Sometimes doctors or nurses make mistakes during the birth of a child. The result may be a debilitating birth injury, such as cerebral palsy, Erb’s palsy, or brachial plexus palsy. Common causes of birth injuries include:
- Excessive force on the newborn’s neck or limb with forceps.
- Failing to perform a C-section in a timely manner can injure or kill the newborn.
- Depriving the child of oxygen can seriously injure the child. For example, if the umbilical cord wraps around the baby’s neck, it can lead to cognitive delay or brain damage. If the doctor and nurses don’t properly monitor the mother and baby’s condition during the delivery, placenta previa or a ruptured uterus can occur.
Emergency Room Errors
While emergency rooms are often very hectic, medical professionals are trained to manage difficult situations. In short, they must uphold a high standard of care no matter what happens in the ER.
Examples of emergency room negligence include misreading charts or x-rays or failing to diagnose a condition. Other ER errors include making an incorrect or delayed diagnosis or giving the wrong dose of medication.
Hospital Malpractice
Notably, the hospital itself may be liable in a medical malpractice lawsuit. Hospitals must adequately evaluate prospective employees. Assume a hospital hires an incompetent or underqualified staff member. If that staffer injures a patient while acting within the scope of his employment, the injured patient can sue the hospital under a theory of vicarious liability.
Proper staffing is the hospital’s responsibility for patient care. The hospital should not ask employees to do more than what is reasonable.
Hospitals must also keep track of patient records. If healthcare providers don’t have access to a patient’s complete medical history, including allergies, medications, and past treatment, errors in treatment may result.
Therefore, failure to meet these and other standards may be grounds for an injured patient to sue the hospital for medical malpractice.
However, vicarious liability does not cover the actions of independent contractors. In fact, many doctors are not hospital employees. Rather, they are employed on a freelance basis while they run their own private practices.
Other medical malpractice claims can be based on the medical professional’s failure to listen or recognize key symptoms. Doctors must also examine a patient’s medical history and order and correctly interpret the proper tests.
How Do Medical Malpractice and Negligence Attorneys Prove Their Case in New Jersey?
To prove a New Jersey medical malpractice claim, the injured patient’s medical malpractice lawyers must show the healthcare professional acted negligently. Moreover, the medical malpractice attorneys must show the negligence caused by the patient’s injury.
Generally, the attorneys must prove several elements to succeed:
- The medical professional must have owed a duty of care to the patient. In other words, they treated the patient within the accepted standards of care.
- Prove the medical professional violated their duty to the patient.
- The patient must prove the breach of duty was directly responsible for their injury.
- Lastly, the injury caused economic or non-economic damages. For example, the patient incurred pain and suffering, lost wages, etc.
Hiring Medical Expert Witnesses Will Be Necessary
In most, if not all, medical malpractice cases the attorneys for the injured person will hire a medical expert. That expert will examine the injured party and review medical records. The expert will then prepare a report detailing his/her opinion of why the doctor, hospital and/or healthcare worker was negligent.
The expert will testify as to the standards of care in a case and explain how the defendant(s) did or did not conform to those standards. Then the expert will testify whether a deviation from the standard of care caused the injury.
The expert will also describe the injuries suffered by the plaintiff.
In 2013, the New Jersey Supreme Court tightened the rules on the use of medical experts. In Nicholas v. Mynster, 213 NJ 463 (2013), the Court held, in a unanimous decision, that the expert for the plaintiff must specialize in the specific area of medicine involved in the malpractice claim.
What Are the Damages in a New Jersey Medical Malpractice Lawsuit?
A jury may award an injured patient damages for the harm caused by a negligent medical mistake of a professional, hospital, or other party. Likewise, in a wrongful death medical malpractice lawsuit, survivors of the deceased can collect damages.
These damages may include:
Medical expenses
Medical expenses may cover hospital stays, doctor visits, medical care, prescription drugs, etc.
Lost Wages and Loss of Earning Capacity
If the injured patient missed time from work to recover, she may be eligible to collect compensation for lost wages. If you can’t earn the same amount of money as you did prior to your injury, a jury may award you compensation for a diminished earning capacity.
Pain and Suffering
Pain and suffering damages compensate the victim for physical pain caused by their injury, as well as anxiety, fear, depression, etc.
Loss of Consortium
The jury may award surviving family members compensation for losing the aid, companionship, and other benefits of a family relationship. We know this as a loss of consortium.
Beware of the Statute of Limitations
Every state has a statute of limitation for personal injury cases, which includes medical malpractice claims. In New Jersey, the statute of limitations is two years (N.J.S.A. 2A:14-2).
However, it takes time to build a strong medical malpractice claim. Medical records have to be collected and reviewed. Additionally, one or more medical experts will have to be hired.
Therefore, if you think medical errors have injured you, contact an experienced medical malpractice attorney NOW so he can build your claim.
The New Jersey Tort Claims Act (TCA) and Malpractice Claims
New Jersey’s Tort Claims Act (TCA) (N.J.S.A. 59:3-1) might come as a surprise when filing a medical malpractice lawsuit. The TCA is a law that grants immunity from lawsuits to government entities and their employees, but there are some exceptions.
One of these exceptions is the 90-day notice requirement. This means that if you want to sue a public entity or employee for medical malpractice, you must give them notice within 90 days after the incident occurred. The notice should include details about the claim, like the claimant’s name, address, date, place, and incident circumstances.
The TCA becomes relevant to medical malpractice claims because of the University of Medicine and Dentistry of New Jersey (UMDNJ). UMDNJ was a state-run health sciences school, and doctors affiliated with it were subject to the TCA’s protections (even when they provided care at private hospitals). UMDNJ was dissolved in 2013. However, some of its schools became part of Rutgers University, which is also state-run. Claims against a public New Jersey University are subject to the TCA’s notice requirements too.
Consequently, if, for example, the doctor or resident who provided negligent care to your client was affiliated with a public New Jersey University, even at a private hospital, you may need to follow the TCA’s notice requirements. This can be challenging, especially if the client’s medical ordeal prevented them from seeking legal advice within the 90-day timeframe.
Fortunately, the TCA, and cases that have dealt with the 90-day notice in malpractice claims, provide that an injured person may file a notice up to one year after the accrual of a claim in cases of “extraordinary circumstances.”
The Supreme Court has not defined “extraordinary circumstances” but leaves it to courts to decide on a case-by-case basis.
Affidavit of Merit
In New Jersey, if an injured person wishes to sue a licensed professional (like a medical doctor), that party must file an affidavit of merit under the Affidavit of Merit statute (N.J.S.A. 2A:53A-27). The affidavit must be completed by an expert in the same field or sub-specialty involved in the malpractice claim. According to the statute, the affidavit 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.”
The plaintiff must file the affidavit regarding each defendant who is a licensed person within 60 days after the receipt of those defendants’ answers. Failure to file the affidavit could lead to the dismissal of the claim.
New Jersey Medical Malpractice Attorneys
If the negligent acts of a doctor, hospital, or other health professional injured you, the experienced New Jersey medical malpractice lawyers at Schiller, Pittenger, & Galvin, PC can act as your advocate.
We will help you understand the best way to proceed with your case. We will get all your medical records to support your claim. Then we’ll hire the right medical expert witness to support your case.
Lastly, we will negotiate a settlement with the malpractice insurance company for the defendants. And if the insurance company is not reasonable, we’ll prepare your case for trial.
Contact the firm at its Scotch Plains office at 908-490-0444 or email us here to schedule a consultation