A patient injured due to medical negligence will face significant differences in how their case proceeds depending on the state. A medical malpractice in New Jersey claim is governed by the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29 and the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-41. These statutes were originally intended to require plaintiffs to demonstrate that their claims had merit early, allowing meritless lawsuits to be dismissed efficiently.
Both the plaintiff and defendant are required to retain qualified medical experts. However, recent court interpretations have narrowed the affidavit of merit statute. Cases in New Jersey may be dismissed if the plaintiff’s expert does not exactly match the credentials of the defendant’s expert, even when both have demonstrated expertise in the relevant medical field [1].
In contrast, medical malpractice in New York does not require that an expert be a specialist in the exact field to testify on accepted practices. Experts must have sufficient skills, training, education, knowledge or experience to render a reliable opinion. New York courts recognize overlap between specialties, a flexibility largely absent in New Jersey [2].
- Litigating medical malpractice in New Jersey and New York follows very different rules that can affect cost, timing and case viability.
- New Jersey requires tightly matched physician credentials under its affidavit of merit statute, creating higher dismissal risk and added expense.
- New York allows more flexibility in physician testimony, limits discovery and often keeps litigation costs lower.
- Statute of limitations differences can decide delayed diagnosis cases before they begin. Read on to see why forum choice matters.
Expert Requirements
New Jersey regulations require experts to meet specific legislative criteria. Under N.J.S.A. 2A:53A-26 to -29, a plaintiff must submit an affidavit from an expert recognized by the American Board of Medical Specialties or the American Osteopathic Association. The expert must have specialized in the same specialty or subspecialty as the treatment in question. Board-certified experts must hold the same certification or have hospital credentials for the procedure or condition.
For medical malpractice in New York, a plaintiff’s attorney only needs to certify consultation with a physician who believes there is a reasonable basis to support the claim, per CPLR §3012-a.
These differences make pursuing medical malpractice in New Jersey claims more challenging. Finding an expert is difficult, trial procedures are restrictive and litigation costs are higher. Attorney fees in New Jersey increased following the July 22, 2014 amendment (effective Sept. 1, 2014) to the statutory contingency fee scale, R. 1:12-7. In New York, only medical malpractice cases fall under a statutory fee scale (Judiciary Law §474-a), unchanged for nearly 30 years.
Discovery Rules
Discovery procedures differ between the states. In New Jersey, statutory interrogatories must be answered in all malpractice actions. In New York, interrogatories are generally prohibited in personal injury and malpractice claims (CPLR §3130) unless the party waives depositions or obtains court permission.
Depositions occur in both states. In New Jersey, expert reports and depositions are required. In New York, depositions of non-party treating physicians are restricted unless necessary. Expert identities remain confidential and reports or depositions are required only if both sides agree [3]. Attorneys instead prepare a summary of anticipated testimony, credentials, materials reviewed and subject matter (CPLR §3101(d)).
These limitations make litigation costs in New York generally lower. Experts are not paid to prepare reports or attend depositions and they can testify on overlapping areas of expertise—flexibility not available for medical malpractice in New Jersey.
Timing for expert disclosure also differs. In New Jersey, all discovery must conclude by the court-imposed deadline (R. 4:24-1), with extensions only in exceptional cases. In New York, disclosure typically occurs near trial. CPLR §3101(d)(1)(i) does not specify when trial experts must be disclosed. Discovery is considered complete after filing a note of issue and certificate of readiness, with post-note of issue discovery allowed only for unusual circumstances causing substantial prejudice (22 NYCRR 202.21(d)).
Statute of Limitations
The statute of limitations varies by state. New York generally does not follow a discovery rule; claims must be filed within 2 ½ years from the date of malpractice, except for foreign objects left in a patient’s body. If the plaintiff continues treatment with the responsible physician, the statute begins when treatment ends. New Jersey follows a true discovery rule, beginning when malpractice could reasonably have been discovered.
This difference is especially significant for delayed cancer diagnoses. Such claims may be viable for medical malpractice in New Jersey, but often barred in New York. Derivative claims in New Jersey follow the injured party’s statute, while in New York they are subject to the 2 ½-year limit with few exceptions.
Litigation Perspective
With over 20 years of experience litigating in both states, the discovery rules in New York are generally fairer. A Jan. 14, 2015, New Jersey Law Journal supplement highlighted the need to reform New Jersey’s affidavit of merit statute, calling for it to be “declared unconstitutional, amended or construed sensibly and realistically” to avoid wasting time and resources on procedural disputes rather than the merits of claims.
Jeff S. Korek is a partner at Gersowitz Libo & Korek and a past president of the New York State Trial Lawyers Association.
Michael A. Fruhling is a partner at Gersowitz Libo & Korek and a sitting governor of the American Association of Justice – New Jersey.
[1] See Nicholas v. Mynster, 213 N.J. 463 (2013) [holding that plaintiff’s expert, board certified in internal medicine, who was credentialed to treat the condition in issue, carbon monoxide poisoning, was disqualified from testifying against a defendant family medicine doctor who was the “attending physician” assigned by the hospital. See also Meehan v. Antonellis, A-1040-13 (App. Div. 2014).
[2] See Ozugowski v. City of New York, 90 A.D.3d 875, 877, 935 N.Y.S.2d 613, 615-16 (2d Dept. 2011).
[3] See Ramsey v. New York University Hospital Center, 14 A.D.3d 349 (1st Dept. 2005); Dioguardi v. St. John’s Riverside Hospital, 144 A.D.2d 333 (2d Dept. 1988); Michalak v. Venticinque, 222 A.D.2d 1060 (4th Dept. 1995); compare Schroder v. Consolidated Edison Company, 249, A.D.2d 69 (1st Dept. 1998), where the First Department declined to follow the Second Department’s decision in Dioguardi, supra, to the extent it requires a defendant to show “special circumstances” in order to warrant the taking of a non-party physician’s deposition.
The original article was published in the New York Law Journal on Wednesday, March 18, 2015.
