Medical malpractice cases in New Jersey come with a hurdle most injury cases don't have. Soon after the lawsuit is filed, you have to show the court that a qualified expert believes the doctor or other professional likely did something wrong. That's the affidavit of merit, and missing it, or getting it wrong, is one of the most common ways valid malpractice claims are lost.

What the law requires

Under New Jersey's Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, in any action for damages for personal injuries, wrongful death, or property damage resulting from malpractice or negligence by a licensed person in their profession, the plaintiff must provide an affidavit from an appropriate licensed person. The affidavit must state that there exists a reasonable probability that the care, skill, or knowledge in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional or occupational standards.

Who counts as a "licensed person"

The statute covers many professionals, not just doctors. The list includes physicians, dentists, podiatrists, chiropractors, registered professional nurses, optometrists, pharmacists, psychologists, physical therapists, licensed health care facilities, architects, engineers, land surveyors, attorneys, and accountants, among others.

The deadline

The affidavit must be provided within 60 days after the defendant files an answer to the complaint. The court may grant one additional 60-day period for good cause (N.J.S.A. 2A:53A-27). Failing to provide a sufficient affidavit can be treated as failing to state a cause of action, which generally means dismissal with prejudice. The case can't simply be refiled.

The Ferreira conference

To prevent cases from being dismissed over technicalities, the New Jersey Supreme Court in Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), directed trial courts to hold an accelerated case management conference within 90 days of the answer in professional malpractice cases. At that conference, the court addresses any problems with the affidavit while there's still time to fix them.

Who can sign it

For claims against physicians, the expert generally must meet the qualifications in the Patients First Act, N.J.S.A. 2A:53A-41. In broad terms, if the defendant is a specialist or board-certified, the expert generally must practice in, or teach, the same specialty, and be board-certified in it if the defendant is. In Nicholas v. Mynster, 213 N.J. 463 (2013), the Supreme Court enforced this "like-qualified" requirement strictly. Choosing the right expert early is critical, especially when a defendant practices in more than one specialty. In Buck v. Henry, 207 N.J. 377 (2011), the Court directed that defendants disclose their specialty in their answer to help plaintiffs choose the right expert.

Exceptions

  • Common knowledge: when the negligence is obvious to a layperson, such as surgery on the wrong body part or leaving a sponge inside a patient, an expert affidavit may not be required.
  • Records withheld: if the defendant hasn't provided the records needed to prepare the affidavit, the plaintiff can file a sworn statement in its place, under N.J.S.A. 2A:53A-28.

Other malpractice rules to know

  • Deadline to file: generally two years, subject to the discovery rule (N.J.S.A. 2A:14-2). Birth injury cases must be filed before the child's 13th birthday. All New Jersey deadlines.
  • Experts at trial: medical testimony is generally required to prove the standard of care, the breach, and causation.
  • Public hospitals and employees: claims against a public entity may require a notice of claim within 90 days. Claims against public entities.

Why it matters for you

The affidavit of merit requirement means a malpractice case has to be investigated before it's filed: getting the records, having them reviewed by the right specialist, and confirming the theory. If you think a medical error harmed you or a family member, contact a lawyer well before the two-year deadline. Waiting until the last few months leaves little room to get the expert review done properly.

See our medical malpractice page.