Medical Malpractice Litigation In New York and New Jersey

The dramatic difference between these two states in obtaining the opinion of a qualified medical expert has made it much more difficult for those injured in the state of New Jersey by medical negligence.

Medical Malpractice Litigation
Jeff S. Korek and Michael A. Fruhling

Jeff S. Korek and Michael A. Fruhling

January 30, 2017 01:54 PM

Based upon the line that divides the states of New York and New Jersey, a patient injured as a result of medical malpractice will see a dramatic difference in both the viability of their case and the way it will proceed to trial.

A patient’s medical malpractice claim in the state of New Jersey is subject to 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. The initial purpose of these acts was to require a plaintiff to reach “a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early state of litigation.”[1]

These acts place an obligation on the plaintiff and the defendant involved in malpractice cases to retain qualified experts. However, the goal of the affidavit of merit statute has recently been whittled away by the courts, and to such a degree, that the New Jersey courts are now dismissing timely filed medical malpractice case in New Jersey may be dismissed because the plaintiff’s expert physician’s credentials do not exactly match the credentials of the defendant’s expert physicianeven when both the plaintiff’s and the defendant’s expert physician have demonstrated expertise in the area of medicine at issue.[2]

Compare this with New York state law, which does not require a medical expert to be a specialist in a particular field in order for the expert to testify about accepted practices in that field. Instead, the expert must simply possess the requisite skills, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable.[3] The New York courts widely recognize that there is an overlap between medical specialtiesa distinction that, unfortunately, the New Jersey courts seem to no longer acknowledge.

The regulations on experts testifying in New Jersey malpractice cases call for the experts to meet specific criteria outlined by the Legislature. In particular, the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29, states that in order for a plaintiff to proceed with a malpractice claim in New Jersey, the plaintiff must submit an affidavit from an expert who “is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issues involves that specialty or subspecialty… the person providing the testimony shall have specialized… in the same specialty or subspecialty.”

In addition, if the party is “board certified and the care or treatment at issue involves that board specialty or subspecialty,” then the expert must either be board certified or sub-certified in that same specialty by the American Board of Medical Specialties or the American Osteopathic Association or credentialed by a hospital to treat the condition or perform the procedure.

On the other hand, in order for an expert to testify in New York, the attorney for the plaintiff must simply certify that he has consulted with a physician who believes there is a reasonable basis to support his claim. See CPLR §3012-a.

The dramatic difference between these two states in obtaining the opinion of a qualified medical expert has made it much more difficult for those injured in the state of New Jersey by medical negligence. It is not only harder to find an expert to support the plaintiff’s claim, but it is also more challenging to proceed to trial. Moreover, the cost associated with bringing a medical malpractice claim in New Jersey has dramatically increased, which has likely led to the reduction of meritorious malpractice claims being brought.

Notably, the costs of defending a medical malpractice case have also increased. It should also be noted on July 22, 2014 (effective Sept. 1, 2014), the New Jersey Legislature amended the statutory attorney contingency fee scale (R. 1:12-7), providing for an overall increase in the attorney’s fees. In New York, only medical malpractice cases are subject to a statutory contingency fee scale (Judiciary Law §474-a), which has not been amended in almost 30 years. Despite the complexity and cost of litigating a medical malpractice case, the attorney fees in New York are far less than those allowed in other non-medical malpractice related claims, and in the state of New Jersey.

Discovery Procedure

The discovery procedure between New York and New Jersey is also different. In New Jersey, statutory interrogatories (or questions submitted under oath) must be answered by the parties in all malpractice actions. In New York, the use of interrogatories in personal injury and medical malpractice claims is prohibited by statute (CPLR §3130), unless the party demanding the interrogatories elects to waive the opponent’s deposition or obtains permission of the court.

In both states, the parties involved in a lawsuit routinely ask questions at a deposition. In New Jersey, expert reports and depositions are required by rule. Compare this with New York, which prohibits depositions of non-party treating physicians, unless the nonparty's testimony is necessary, and/or that the nonparty's testimony is the only means of gaining the sought after information.[4]

Moreover, in New York, the names of experts retained by the parties regarding issues of malpractice and medical causation are kept confidential; that is to say, these experts are not required to issue reports or take depositions. In fact, the names of the proposed experts and their depositions are only required when both sides agree to disclose their respective experts for depositions. CPLR §3130(d)(ii). In lieu of an expert report, New York attorneys must prepare a summary of the expert’s anticipated testimony pursuant to CPLR §3101(d), along with a summary of the proposed expert’s credentials, materials reviewed, and the subject matter of the expert’s anticipated testimony.

As a result of the limitations on expert discovery in New York, the costs associated with litigating a case in New York are more reasonable than those associated with litigating in New Jersey. One of the main reasons for New York’s more reasonable cost of litigation is that there is no need to compensate the experts for the time in preparing medical reports of for deposition testimony. Moreover, experts in New York have more latitude when testifying, as they are permitted to opine on areas that overlap with their medical specialty, or even, arguably, outside of their medical specialty. This is not the case in New Jersey.

Likewise, the timing of the expert disclosure remains different between the states. In New Jersey, all discovery must be conducted within the court-imposed deadline or discovery-end-date (R. 4:24-1). Rule 4:24-1(c) was amended to provide that “absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.” Indeed there are very limited exceptions in New Jersey where discovery can take place after the discovery-end-date has expired.

In New York, expert information in medical malpractice cases is routinely disclosed at or near the time of trial. This is because the statute governing disclosure of expert information CPLR §3101(d)(1)(i)) does not specify when a party must disclose its expected trial experts upon receiving a demand. Discovery in New York is typically deemed complete after the filing of a note of issue and certificate of readiness. Post-note of issue discovery may only be sought if a party can demonstrate unusual or unanticipated circumstances and substantial prejudice absent the additional discovery (22 NYCRR 202.21 (d)). While a stringent standard, a far more liberal one than seen in New Jersey.

Statute of Limitations

Finally, the rules regarding the statute of limitations are distinct among the two states. While some states have a discovery rule, e.g., where the person could reasonably have learned of the malpractice, there is no discovery rule in New York. New York limits the discovery rule to situations where a foreign object was left in the patient’s body following a surgical procedure. In New York, a malpractice claim must be filed within 2 ½ years from the date of the malpractice (not when it was discovered) or in cases where the individual is treating for the same illness, injury or condition with the physician who caused the harm, the statute begins to run when that treatment ends. In New Jersey, however, the statute begins to run at the time the malpractice could reasonably have been discovered by the plaintiff. In essence, it is a true discovery rule.

The vast difference between the statute of limitations in these states is often seen through the experience of those diagnosed with cancer years after a certain test, or in those cases where a physician failed to identify the cancer at a time when it should have been discovered. In New Jersey such a claim would be viable; in New York, it would not. Despite this harsh injustice, the New York courts are constrained to interpret the statute literally, and the Legislature has failed to make this most needed change.

Similarly, in New Jersey, the statute of limitations for derivative claimsthose brought by parents of infants or by a spousetrack with the statute of limitations for the injured party. However, in New York, derivative claims are subject to the 2 ½-year statute of limitations with almost no exceptions to extend the statute beyond that time.


It is our opinion that, having practiced as medical malpractice litigators in both states for more than 20 years, the discovery rules in New York, while not perfect, are inherently fairer to all parties. To further our point, it is worth noting that at the time this article was written, an article published in the Jan. 14, 2015, New Jersey Law Journal professional liability supplement called for a change in the way the affidavit of merit statute has been recently interpreted by the New Jersey courts. The article calls for a declaration that the statute be “declared unconstitutional, amended, or construed sensibly and realistically…The alternative is that the courts, the bar, and the parties will be doomed to forever waste an enormous amount of time and resources on the process, instead of determining the merits of our cases.”


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] In re Hall, 147 N.J. 379, 391 (1997),
[2] 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).
[3] See Ozugowski v. City of New York, 90 A.D.3d 875, 877, 935 N.Y.S.2d 613, 615-16 (2d Dept. 2011).
[4] 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.

Related Articles

New York's Best Lawyers 2022

by Best Lawyers

Our 2022 New York's Best Lawyers publication features top-ranked legal talent and legal editorial from firms in New York, New Jersey and Connecticut.

New York's Best Lawyers 2022

Flawed Relocation Program Leads to Litigation

by Victoria Langley

Newark’s lawsuit against NYC could impact how cities across the country tackle homelessness.

Relocation Program for Homelessness

High Risks, High Rewards

by Justin Smulison

Daryl. L. Zaslow, Woodbridge, New Jersey's "Lawyer of the Year" for Medical Malpractice - Plaintiffs, discusses why he embraces high-profile injury cases.

Daryl L. Zaslow Best Lawyers 2020

Aim High and Fly

by Khalil Abdullah

From a silent victim of hometown segregation to Air Force captain and lawyer of consummate skill, Karen Evans exemplifies leadership—and vows always to help those who seek to follow her path.

Karen Evans' Leadership in the Airforce

Courtroom Mastery

by Justin Smulison

Victor H. Pribanic recalled the excitement of returning to the courtroom in late 2021 for a medical negligence case that could help set a new course for Pribanic & Pribanic’s trial advocacy.

Victor H. Pribanic Makes Return to Courtroom

New England's Best Lawyers 2022

by Best Lawyers

Our New England's Best Lawyers 2022 publication features top-ranked legal talent in New England.

New England's Best Lawyers 2022

Announcing the 2022 Best Lawyers: The Injury & Malpractice Issue

by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and “Lawyer of the Year” recipients for personal injury and medical malpractice as well as thought leadership from some of the nation’s top lawyers.

Best Lawyers Injury & Malpractice Publication

Georgia's Injury and Malpractice Leaders

by Justin Smulison

In 2021, Adam Malone recovered more than $38 million in settlements for catastrophically injured clients, while continuing his leadership roles outside the courtroom to enhance the profession for injury lawyers.

Malone Law Remain Leaders in Personal Injury

Georgia's Best Lawyers 2022

by Best Lawyers

Our 2022 Georgia's Best Lawyers publication features top-ranked legal talent in Atlanta, Augusta, Columbus, Greater Atlanta, Macon and Savannah.

Georgia's Best Lawyers 2022

East Side Story

by Adam Leitman Bailey

The made-for-Hollywood tale of a 16-year legal tussle to help a dedicated band of Manhattan “homesteaders” take ownership of the buildings they had moved into and begun to rehab.

Rosario Dawson's Family Fight for NY Building

When Medical Malpractice Defendants Are Better Able To Cope, Lawyers Are Better Able To Do Their Jobs

by Gail Fiore

Lawyers face heavy challenges when dealing with difficult medical malpractice defendants. The Winning Focus, LLC, founded by Gail Fiore, offers coaching and support to defendants feeling the burden of difficult courtroom battles.

Guidance for Medical Malpractice Defendants

Results That Make a Difference

by John Fields

Thomas Moore and Judith Livingston continue to secure some of the largest verdicts in New York state for their injured clients.

Largest Injury Verdicts in New York State

Patrick A. Mullin, Esq. - Annual Report

by Patrick A. Mullin, Esq.

Veteran federal criminal defense attorney Patrick A. Mullin, Esq. provides an annual report of his victories in high-stakes criminal and tax matters.

Patrick A. Mullen Annual Report of Defense

A Reputation for Success

by Justin Smulison

Best Lawyers “Lawyer of the Year” David Perecman on his 40-plus years representing injury victims.

A 40 Year Career in Personal Injury

Catastrophic Personal Injury

by Best Lawyers

Trial legend Frank Branson finds success mixing technology and new skills with vast courtroom experience.

Catastrophic Personal Injury

A Potentially Precedent-Shifting Verdict

by Sean Stonefield

Preeminent trial lawyer Benedict Morelli on achieving one of the highest pain-and-suffering awards in New York State history.

Benedict Morelli

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation

by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Why Cariola Díez Pérez-Cotapos Developed Its Own Legal Tech

by Best Lawyers

Juan Pablo Matus of Cariola Díez Pérez-Cotapos, 2019 "Law Firm of the Year" award for Corporate and M&A Law in Chile, discusses his firm's joint venture with Cognitiva in creating Lexnova, a legal AI system.

Cariola Díez Pérez-Cotapos Interview

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Education by Trial: Cultivating Legal Expertise in the Courtroom

by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in France™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Announcing The Best Lawyers in The United Kingdom™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Georgia Laws Taking Effect in 2022

by Gregory Sirico

Three new pieces of Georgia legislation aim to improve medical bill transparency, lower the sales tax on vehicles and enact further safeguards to protect children in foster care.

New Georgia Laws Enacted in 2022