The Bergen County Medical Society reform draft Page 2
would take the votes of a majority of Senators, plus a majority of Assemblymen,
plus the Governor to change its provisions.
Statute of Limitations for Birth Injuries The bill provides that accrued
actions, for birth injuries only, must be brought prior to the child's eleventh
birthday. However, because the term "accrued" is used, our interpretation is that
cases can be brought after that date if the injury or cause was not previously
known. Thus, this limitation may have little effect. Very few cases are brought
after the 11
th
birthday (about 1%) in any event. These provisions will apply to all
current cases but no one will have less than four years to file a case due to the
new limit.
Pre-suit process The primary purpose of these proceedings is to determine
the appropriate parties for the suit as well as other issues deemed appropriate. A
notice of intent to sue must be filed at least 180 days prior to the action being
filed. An exact statement of the basis for the action must be provided, including
the standard of care violated. An exchange of documents, sworn statements,
and a pre-claim review session are required to determine potentially responsible
parties. The statue of limitations is tolled during this time period.
Dispute Resolution The court is empowered to require parties to participate in
dispute resolution where it may be helpful.
Affidavit of noninvolvement A person sued for malpractice can be dropped
from a case early by signing an affidavit stating that the defendant was not
involved in the patient's care. A plaintiff can submit facts to counter the affidavit.
Penalties, including attorneys fees, will be imposed on either side for making
false statements.
Expert Witnesses New expert witness standards are provided for both court
and affidavit of merit filings. Experts must have been in the same specialty or
sub-specialty and must be either in active clinical practice or education at the
time of the incident. A judge may only waive these requirements if the witness is
otherwise qualified and after diligent efforts a witness meeting the criteria cannot
be found. A witness who deliberately misrepresents the applicable standard of
care is subject to a penalty of $10,000 and other costs. A person cannot be
penalized by an employer or licensing board because he agrees to testify in a
case.
Net Opinions The admission of a scientific opinion by an expert must be
based on tangible evidence such as text books, articles, and recognized
standards of practice. This will prevent opinions based on how a physician
practices or would do things if not supported by tangible evidence.
Remittitur and Additur Under current law, a judge may increase or decrease
a jury award only if the award would "shock the conscience," a very difficult
