Medical malpractice lawyers for New Jersey and New York

You trusted a doctor, nurse or hospital with your health, and something went wrong. Maybe a cancer was missed, a surgery caused new damage, or a baby was hurt during delivery. You may be living with pain, new limitations and questions no one will answer.

Medical malpractice cases are among the most demanding in personal injury law. Both New Jersey and New York require early review by a qualified medical professional, and both have deadlines that can close a case before you realize you have one. This page explains the basic rules. It is general information, so talk with a lawyer about your own situation.

What medical malpractice means

Medical malpractice is negligence by a health care provider. To win, an injured patient generally must prove three things. First, the accepted standard of care, meaning what a reasonably careful provider in the same field would have done. Second, a deviation from that standard. Third, that the deviation caused an injury that would not otherwise have happened.

A bad outcome is not enough by itself. Medicine carries real risks, and some complications happen even with excellent care. The question is whether the care fell below accepted standards and caused harm. Answering it almost always requires testimony from a qualified medical professional.

Common types of cases

• Misdiagnosis and delayed diagnosis. Missing or delaying a diagnosis of cancer, stroke, heart attack, infection, appendicitis or a fracture can allow a treatable condition to become permanent or fatal.
• Surgical errors. Injuring a nearby organ, nerve or blood vessel, operating on the wrong site, or leaving a sponge or instrument inside a patient.
• Medication errors. Prescribing the wrong drug or dose, ignoring a known allergy or dangerous interaction, or failing to monitor a patient on a high-risk medication.
• Birth injuries. Failing to recognize fetal distress, delaying a needed cesarean delivery, or mishandling a difficult delivery, which can lead to brain injury or nerve damage.
• Hospital infections. An infection is not automatically malpractice. A claim may exist when a provider failed to follow infection-control practices, or failed to recognize and treat an infection in time.
• Lack of informed consent. Performing a procedure without explaining its significant risks and alternatives, as discussed below.

Why these cases need early expert review

Malpractice cases cannot move forward on the injured person’s word alone. Both states require a qualified medical professional’s support at the start of the case, and in New Jersey that professional usually must practice in the same specialty as the doctor being sued. Gathering complete records and having them reviewed takes time, and the deadlines do not wait.

We screen these cases carefully. Before filing, we obtain the complete records and have them reviewed by a qualified medical professional to determine whether the standard of care was breached and whether that breach caused the injury. A case that cannot meet both requirements is not one we will file, and we will tell you that honestly. Early review protects you either way. If there is a claim, it is built on a solid foundation. If there is not, you get a clear answer.

New Jersey requirements

The affidavit of merit

New Jersey’s Affidavit of Merit statute applies to malpractice claims against licensed professionals, including doctors and nurses. Within 60 days after a defendant files an answer to the complaint, the plaintiff must give that defendant an affidavit from an appropriate licensed person stating that there is a reasonable probability the care fell outside acceptable professional standards. A court may grant no more than one additional period, up to 60 days, for good cause.¹

If the plaintiff fails to provide the affidavit, or a sworn statement explaining that the defendant has not produced the records needed to prepare it, the law treats the case as failing to state a cause of action.¹ In practice, that usually means dismissal.

To help catch problems early, the New Jersey Supreme Court in Ferreira v. Rancocas Orthopedic Associates directed that a case management conference be held within 90 days of service of an answer in malpractice cases to address whether the affidavit has been served.² That conference requirement now appears in the court rules (R. 4:5B-4). In Paragon Contractors, Inc. v. Peachtree Condominium Association, the Court later held that a missed or late conference does not extend the statutory deadline, so the plaintiff’s lawyer must track it independently.¹⁶

Same-specialty experts

For claims against physicians, the expert who signs the affidavit and testifies at trial must meet the requirements of N.J.S.A. 2A:53A-41. When the disputed care involves the defendant’s specialty, the expert generally must practice in that specialty. For a board-certified defendant, the statute permits qualifying hospital credentials or matching board certification with the required recent practice or teaching. A court may waive requirements only in limited circumstances.³

In Nicholas v. Mynster, the Supreme Court enforced this rule strictly. An expert board certified in internal medicine and preventive medicine could not testify against doctors certified in emergency medicine and family medicine. The Court held that the statute requires matching specialty credentials, not just experience treating the condition involved.⁴ Choosing the wrong expert can sink an otherwise strong case.

Deadlines and the discovery rule

A New Jersey malpractice lawsuit generally must be filed within two years.⁵ Under the discovery rule from Lopez v. Swyer, the two years do not begin until the patient discovers, or with reasonable diligence should have discovered, that they may have a basis for a claim. Whether the discovery rule applies is decided by the judge, not the jury.⁶

Birth injuries have a special deadline. A malpractice claim for injuries sustained at birth must be filed before the child’s 13th birthday.⁵ For other injuries to children, New Jersey generally pauses the deadline until the child turns 18.⁵

Charitable immunity and nonprofit hospitals

Many New Jersey hospitals are nonprofit organizations. Under N.J.S.A. 2A:53A-8, a nonprofit corporation organized exclusively for hospital purposes is liable for damages only up to $250,000, plus interest and costs of suit, for any one accident. In Kuchera v. Jersey Shore Family Health Center, the Supreme Court applied this hospital limit to a nonprofit community health center.⁷ Because of the cap, it is important to identify every provider involved in the care and who employed each of them.

New York requirements

Two and a half years, with exceptions

In New York, a medical malpractice action generally must be started within two years and six months of the act or omission, or of the last treatment when there is continuous treatment for the same illness, injury or condition that gave rise to the malpractice.⁹ Continuous treatment does not include visits a patient requests only to check on their condition.

There are two important exceptions under CPLR 214-a.

• Foreign objects. When a foreign object, such as a surgical sponge or clamp, is left in the body, the action may be started within one year after the object is discovered or after the patient learns facts that would reasonably lead to its discovery, whichever comes first. Chemical compounds, fixation devices and prosthetic devices do not count as foreign objects.⁹
• Missed cancer diagnosis (Lavern’s Law). For a negligent failure to diagnose cancer or a malignant tumor, New York allows two years and six months from when the patient knew or reasonably should have known both of the negligence and the resulting injury. That discovery deadline cannot be more than seven years after the negligent act or omission. The law also allows two years and six months from the last qualifying continuous treatment for the condition. The later of those two deadlines applies.⁹

For children, New York generally extends the deadline because of infancy, but in malpractice cases the extension cannot go beyond ten years after the claim arose.¹⁰

Certificate of merit

A New York malpractice complaint must be accompanied by a certificate of merit. In it, the attorney declares that they have reviewed the facts and consulted with at least one licensed physician who they reasonably believe is knowledgeable about the issues, and that they have concluded there is a reasonable basis to bring the action. If the deadline to sue would otherwise pass, the certificate may be filed within 90 days after the complaint is served.¹¹

Public hospitals

Claims against public hospitals and public employees can carry much shorter notice deadlines, often 90 days, in both states. Our guide to notice of claim deadlines explains them.

Informed consent

Doctors must explain the significant risks of, and alternatives to, a treatment so the patient can make a real choice. A claim can arise when a doctor fails to do so and a risk that should have been disclosed then causes harm.

In New Jersey, Largey v. Rothman adopted the “prudent patient” standard. A doctor must disclose the information a reasonable patient in the patient’s position would consider significant. The patient must also show that a prudent patient, properly informed, would have declined the treatment.⁸

In New York, Public Health Law § 2805-d defines lack of informed consent as the failure to disclose the alternatives and reasonably foreseeable risks and benefits that a reasonable practitioner would have disclosed. The patient must show that a reasonably prudent person in their position, fully informed, would not have undergone the treatment, and that the lack of informed consent caused the injury. These claims are limited to non-emergency treatment and to diagnostic procedures that invade the body.¹²

Fees, collateral sources and liens

Both states regulate what lawyers may charge in these cases. In New York, Judiciary Law § 474-a sets a sliding scale for medical, dental and podiatric malpractice cases. The fee may not exceed 30 percent of the first $250,000, 25 percent of the next $250,000, 20 percent of the next $500,000, 15 percent of the next $250,000, and 10 percent of anything over $1,250,000. It is computed on the net sum after case expenses.¹³

In New Jersey, Court Rule 1:21-7 caps contingent fees in personal injury cases, including malpractice, at 33 1/3 percent of the first $750,000, 30 percent of the next $750,000, 25 percent of the next $750,000 and 20 percent of the next $750,000, with any fee on amounts above $3 million set by the court. When the client is a minor or mentally incapacitated, the fee on a settlement reached before a jury is chosen may not exceed 25 percent.¹⁴

In New York, CPLR 4545 allows a court, after a verdict, to reduce the award for past or future economic losses, such as medical bills and lost earnings, by amounts that were or will be paid by certain collateral sources, such as some insurance. The reduction does not apply to life insurance or to payments by a source with a statutory right of reimbursement, and the plaintiff receives a credit for premiums paid.¹⁵ Health insurers and government programs may also claim repayment from a recovery. Our guide to settlement liens explains how that works.

How Parra Klein handles medical malpractice cases

We begin by collecting your complete medical records from every provider, including office notes, hospital charts, imaging, pathology and pharmacy records. Gaps in the records are common, and we follow up until the file is complete.

We have the records reviewed by a qualified medical professional in the right specialty to determine whether the care fell below accepted standards and whether that caused your injury. In New Jersey, we track the affidavit of merit deadlines and the same-specialty rules from the day a defendant answers. In New York, we prepare the certificate of merit and identify the deadline that applies, including any continuous treatment or Lavern’s Law issues.

We work with your current treating doctors to understand your future care needs. We handle communication with the hospitals, malpractice insurers and their lawyers, and we prepare each case with trial in mind. If our review shows there is no viable claim, we tell you plainly and explain why.

Arlene Parra and Juan Carlos Reyes are fluent in Spanish, and we serve patients and families in Spanish throughout the case. We meet clients at our offices in Elmwood Park and Union City, New Jersey, and in Manhattan, and we offer remote consultations. There is no attorney’s fee unless we recover money for you.