The practice of medicine requires great skill and training as it has a direct and sometimes profound effect on the lives of patients.  When that effect is a positive one, everyone is happy.  However, the negative effects of poor or careless medicine has profound consequences yet it often goes unreported or uncompensated. The cases are serious and require specialists with experience in the many nuances, traps and pitfalls of bringing these highly specialized types of cases.

However, while studies report that the number of malpractice events have risen, the numbers of cases brought into litigation have fallen. Medical Malpractice cases only account for around 5% of all tort cases (civil cases). While medical errors are considered to be the third leading cause of death in the US, the high barriers that exist within the law are the reason for such small numbers of cases that actually make it in front of a judge or jury.

The first barrier is the Affidavit of Merit.  A patient who feels that he or she is a victim of malpractice can visit a lawyer, tell the story (the facts) that occurred and reasons why that person believes he or she has a case. If the reason is a valid one and shows the serious injury and damages required, then they may indeed have a case. However, in any suit for malpractice against a doctor or institution, an Affidavit of Merit must be obtained. If an Affidavit of Merit cannot be obtained, there can be no case filed.

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The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A.:53A-27, was made into law on June 29, 1995 as a way to reduce the filing of “frivolous” lawsuits against certain "licensed” professionals.

A plaintiff (the party who brings the lawsuit) who sues for damages stemming out of personal injuries, wrongful death, or property damage as a result of malpractice or negligence by a "licensed person", must provide each defendant (the professional being sued) with an affidavit from an appropriately licensed person (expert) within the field applicable to the case (e.g., radiology, pharmacology, obstetrics, etc.) This affidavit must state that there is a reasonable probability that the afforded treatment and care by the defendants, and/or the skill or knowledge exercised by the defendants, fell outside of the acceptable customs, standards and/or practices of the profession. In New Jersey, the expert doctor who issues the affidavit must be licensed to practice and have actively practiced within the field and/or sub-specialty of medicine applicable to the case; and must have no financial interest in the case. The plaintiff’s burden is made high, by law in order to keep the number of suits low to protect the “licensed persons” and institutions.

The Center for Justice & Democracy (CJ&D) at New York Law School recently released its newly updated briefing book, MEDICAL MALPRACTICE: BY THE NUMBERS.  It includes many interesting facts, such as diagnostic medical errors, which most people experience at least once in their life, are almost twice as likely to result in death compared to other medical errors. (Page 70).  In half of all surgical procedures, there is some sort of medication error or drug adverse event. (Page 70). Surgeons with the highest complication rates perform surgeries every day – a problem that many hospitals fail to track. (Page 8). 

The challenge with medical malpractice it to correctly identify when it has occurred but at the same time to not make the process so arduous that no one can fight through the red tape to file a suit.   In addition to the hurdles presented by obtaining an Affidavit of Merit, in order to obtain any type of recovery for pain, suffering or lost wages, the case must also have a high level of permanent damage suffered by the plaintiff.

Joanne Doroshow, CJ&D Executive Director, said “Although hundreds of thousands of patients die each year due to medical errors, very few medical claims are paid to compensate injured patients.  It is not easy for someone who has lost a leg, their eyesight or a child to continue hearing from medical lobbies that they – the few patients who file claims – are the problem, as opposed to the medical negligence that caused these tragedies. We have an enormous patient safety problem in this nation, and the last thing we should do is try to solve it by increasing the obstacles sick and injured patients face in the already difficult process of bringing a case against a negligent health care institution.”