Lawsuits are driving up the costs of liability insurance for physicians to the point that many are restricting their practices, moving out of state, or retiring. Other physicians are practicing defensive medicine in an effort to avoid being sued, which adds to the already high cost of healthcare, and drains resources out of the system.
The New Jersey Civil Justice Institute is working with a coalition of healthcare professionals and providers interested in advancing common sense reforms that will preserve patients’ access to care and help reduce health care costs.
Standards for Expert Testimony. New Jersey was one of the first jurisdictions to recognize the increasing importance of expert testimony in modern litigation, one of the first to stress the importance of judicial gate keeping, and one of the first to adopt a more structured multi-factor test for examining the validity of expert testimony. Unfortunately, New Jersey can no longer claim it is on the cutting edge when it comes to ensuring shoddy evidence is barred from the courtroom, as it remains one of only a handful of states that has not yet adopted the Daubert standard for expert testimony. As a result, physicians in New Jersey are at a disadvantage compared to their counterparts in other states when unreliable experts are called to testify about the standard of care applicable in a case, whether the treating physician breached their duty of care, and if a breach occurred whether it was the cause of the plaintiff’s injury. New Jersey should adopt the Daubert standard.
Affidavit of Merit. In order to file a medical malpractice claim, plaintiffs in New Jersey must submit an affidavit of merit from a board-certified medical professional with expertise in the medical procedure at issue attesting that the care provided by the defendant fell outside acceptable professional standards. In 2010, the New Jersey Supreme Court significantly weakened the state’s affidavit of merit requirements with its ruling in Ryan v. Renny by allowing a certificate from a general surgeon in a case where the defendant was a board-certified specialist. The legislature should clarify that the affidavit of merit law requirements should only be waived under the circumstances outlined in the statute, such as when a specialist is not available. This will ensure that physicians are being justly accused of wrongdoing.
Statute of Limitations. Statutes of limitations are designed to limit the time period in which a lawsuit can be filed. On the books, New Jersey has a very reasonable two year statute of limitations. In reality, the period for filing a medical malpractice lawsuit is virtually unlimited because the state’s discovery rule says that the two year statute of limitations does not start running until the plaintiff knows of, or through the exercise of reasonable due diligence, should have known of, the injury. Enacting a firm statute of limitations will ensure that New Jersey physicians are not blind-sided by a lawsuit filed an unreasonable number of years after they treated the plaintiff.
Greater Predictability in Non-Economic Damages. A majority of states have passed legislation limiting the amount of non-economic damages recoverable in malpractice suits. New Jersey currently limits only punitive damages (at the greater of $350,000 or five times compensatory damages), allowing juries to award unlimited amounts for things like pain and suffering, loss of enjoyment of life, stress, anxiety, and other subjective injuries. More certainty in award amounts would help to stabilize malpractice insurance rates and provide doctors a sense of security because they would know that they could not be held personally liable for unpredictable awards that exceed their policy limits.