[First Reprint]

ASSEMBLY, No. 1982

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 8, 2010

 


 

Sponsored by:

Assemblyman  HERB CONAWAY, JR.

District 7 (Burlington and Camden)

Assemblyman  DECLAN J. O'SCANLON, JR.

District 12 (Mercer and Monmouth)

Assemblyman  JAY WEBBER

District 26 (Morris and Passaic)

Assemblywoman  ELEASE EVANS

District 35 (Bergen and Passaic)

 

Co-Sponsored by:

Assemblywoman Handlin, Assemblyman Conners, Assemblywomen McHose, Angelini, Riley, Vainieri Huttle, Voss and Assemblyman Chiusano

 

 

 

 

SYNOPSIS

     Concerns liability, standards of care, and insurance coverage for medical malpractice actions.

 

CURRENT VERSION OF TEXT

     As reported by the Assembly Health and Senior Services Committee on March 7, 2011, with amendments.

  


An Act concerning medical professional liability and standards of care, and insurance coverage for medical malpractice actions, and amending and supplementing various parts of the statutory law.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2A:14-2 is amended to read as follows:

     2A:14-2. a. [Every] Except as provided in subsections b. and c. of this section, every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued [; except that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday].

     b.    Except as provided in subsection c. of this section, a malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the injury, but not more than four years after the date of the alleged act, omission, neglect or occurrence that is the basis of the action, except that in the case in which the allegation of malpractice against the health care provider is that a foreign object has been wrongfully left within a patient’s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient’s body, whichever first occurs.

     c.     Notwithstanding subsections a. and b. of this section, an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor’s  11th birthday.  In the event that an action by or on behalf of a minor that has  accrued for medical malpractice for injuries sustained at birth is not commenced by the minor's parent or guardian prior to the minor's [12th] 10th birthday, the minor or a person 18 years of age or older designated by the minor to act on the minor's behalf may commence such an action.  For this purpose, the minor or designated person may petition the court for the appointment of a guardian ad litem to act on the minor's behalf.

(cf:  P.L.2004, c.17, s.3)

 

     2.    Section 2 of P.L.1995, c.139 (C.2A:53A-27) is amended to
read as follows:

     2.    In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that [there exists a reasonable probability that] the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices, does not meet a commonly recognized reasonable standard of care, and, in the case of an action for medical malpractice, the affidavit shall establish that there was a provider-patient relationship and identify the specific act by the defendant which is the basis for the cause of action against the defendant, or, if there was no provider-patient relationship, identify the specific act by the defendant which is the basis for the cause of action against the defendant.  The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. For the purposes of this section, “commonly recognized reasonable standard of care” means a standard which is in accordance with a responsible body of opinion, even if others differ in opinion.

     In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 (C.2A:53A-41).  In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.  The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

     In the case of an action for medical malpractice, the affidavit shall be based on and refer to objective scientific clinical evidence.  The person executing the affidavit shall include in the affidavit a certification, under penalty of perjury,  that the patient’s chart and other pertinent information submitted has been personally reviewed.  A person shall be guilty of a crime of the fourth degree if the person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any affidavit filed pursuant to this section.  For the purposes of this section “scientific clinical evidence” means evidence based on a systematized application of evidence that reflects a precise application of generally recognized facts or principles, using a scholarly methodology regulated by or conforming to the generally accepted principles of medical science.

(cf:  P.L.2004, c.17, s.8)

 

     3.    Section 7 of P.L.2004, c.17 (C.2A:53A-41) is amended to read as follows:

     7.    In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L.1995, c.139 (C.2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in [the United States] New Jersey and meets the following criteria:

     a.     If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

     (1)   a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

     (2)   a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:

     (a)   the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

     (b)   the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

     (c)   both.

     b.    If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:

     (1)   active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or

     (2)   the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or

     (3)   both.

     c.     (1)  A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, 1and the court has been presented with the reasons for any person declining to give expert testimony or execute an affidavit in the case,1 the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine 1during the year immediately preceding the date of the occurrence that is the basis for the claim or action.  The good faith requirement for a waiver by the court pursuant to this paragraph shall not be met by a showing that reviewing or potentially reviewing experts declined to give testimony or execute an affidavit based upon a lack of merit1.

     (2)   A court may waive the requirement that a person providing testimony as an expert witness be licensed in New Jersey upon sufficient evidence that no person licensed in New Jersey meets the qualifications set forth in this section.

     d.    Nothing in this section shall limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.

     e.     In an action alleging medical malpractice, an expert witness shall not testify on a contingency fee basis.

     f.     An individual or entity who threatens to take or takes adverse action against a person in retaliation for that person providing or agreeing to provide expert testimony, or for that person executing an affidavit pursuant to the provisions of P.L.1995, c.139 (C.2A:53A-26 et seq.), which adverse action relates to that person's employment, accreditation, certification, credentialing or licensure, shall be liable to a civil penalty not to exceed $10,000 and other damages incurred by the person and the party for whom the person was testifying as an expert.

     g.     Expert testimony shall be based on and refer to objective scientific clinical evidence. A person testifying as an expert witness pursuant to this section shall be guilty of a crime of the fourth degree if the person purposefully or knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in, or omits a material fact from, or causes a material fact to be omitted from, any expert testimony provided pursuant to this section.  For the purposes of this section, “scientific clinical evidence” means evidence based on a systematized application of evidence that reflects a precise application of generally recognized facts or principles, using a scholarly methodology regulated by or conforming to the generally accepted principles of medical science. Any person violating the provisions of this subsection shall be forever barred from presenting expert testimony in this State.

(cf: P.L.2004, c.17, s.7)

 

     4.    Section 10 of P.L.2004, c.17 (C.2A:62A-1.3) is amended to read as follows:

     10.  a. If an individual's actual health care facility duty, including on-call duty, does not require a response to a patient emergency situation, a health care professional who, in good faith, responds to a life-threatening emergency or responds to a request for emergency assistance in a life-threatening emergency within a hospital or other health care facility, is not liable for civil damages as a result of an act or omission in the rendering of emergency care.  The immunity granted pursuant to this section shall not apply to acts or omissions constituting gross negligence, recklessness or willful misconduct.

     b.    The provisions of subsection a. of this section shall [not] apply to a health care professional if [a] there is no current and active provider-patient relationship [existed before] with the patient who is the subject of the emergency assistance at the time of the emergency [, or if consideration in any form is provided to the health care professional for the service rendered].

     c.     The provisions of subsection a. of this section do not diminish a general hospital's responsibility to comply with all Department of Health and Senior Services licensure requirements concerning medical staff availability at the hospital.

     d.    A health care professional shall not be liable for civil damages for injury or death caused in an emergency situation occurring in the health care professional's private practice or in a health care facility on account of a failure to inform a patient of the possible consequences of a medical procedure when the failure to inform is caused by any of the following:

     (1)   the patient was unconscious;

     (2)   the medical procedure was undertaken without the consent of the patient because the health care professional reasonably believed that the medical procedure should be undertaken immediately and that there was insufficient time to fully inform the patient; or

     (3)   the medical procedure was performed on a person legally incapable of giving informed consent, and the health care professional reasonably believed that the medical procedure should be undertaken immediately and that there was insufficient time to obtain the informed consent of the person authorized to give such consent for the patient.

     The provisions of this subsection shall apply only to actions for damages for an injury or death arising as a result of a health care professional's failure to inform, and not to actions for damages arising as a result of a health care professional's negligence in rendering or failing to render treatment.

     e.     As used in this section:

     (1)   "Health care professional" means a physician, dentist, nurse or other health care professional whose professional practice is regulated pursuant to Title 45 of the Revised Statutes and an emergency medical technician or mobile intensive care paramedic certified by the Commissioner of Health and Senior Services pursuant to Title 26 of the Revised Statutes; and

     (2)   "Health care facility" means a health care facility licensed by the Department of Health and Senior Services pursuant to P.L.1971, c.136 (C.26:2H-1 [et seq.] et al.) and a psychiatric hospital operated by the Department of Human Services and listed in R.S.30:1-7.

(cf:  P.L.2004, c.17, s.10)

 

     5.    Section 17 of P.L.2004, c.17 (C.17:30D-22) is amended to read as follows:

     17.  a. An insurer shall not increase the premium of any medical malpractice liability insurance policy based on a claim of medical negligence or malpractice against an insured unless the claim results in a medical malpractice claim settlement, judgment or arbitration award against the insured.  For the purposes of this subsection, “claim” means any demand received by an insured seeking damages that results from a medical incident, or an insured’s notice to the insurer of a specific professional services act or omission that the insured reasonably believes may result in a demand for damages.

     b.    Notwithstanding any other law or regulation to the contrary, an insurer authorized to transact medical malpractice liability insurance in this State shall not increase the premium of any medical malpractice liability insurance policy: (1) based on a claim of medical negligence or malpractice against the insured if the insured is dismissed from an action alleging medical malpractice [within 180 days of the filing of the last responsive pleading]; or (2) based on a claim of medical negligence or malpractice against the insured if the alleged medical malpractice occurred in any case in which the insured performed any treatment or procedure on a charitable basis, without consideration; or (3) based on a claim of medical negligence or malpractice against the insured if the alleged medical malpractice occurred in any case in which the insured provided emergency assistance pursuant to section 10 of P.L.2004, c.17 (C.2A:62A-1.3), whether or not for consideration.

(cf: P.L.2004, c.17, s.17)

 

     6.    Section 24 of P.L.2004, c.17 (C.17:30D-27) is amended to read as follows:

     24.  a.  As used in this section:

     "Annuity" means an annuity issued by an insurer licensed or authorized to do business in this State which is a qualified assignment under section 130 of the federal Internal Revenue Code of 1986, 26 U.S.C. s.130.

     "Judgment creditor" means a claimant who is the recipient of an award for economic or noneconomic damages, or both, that is the result of an action filed against a health care provider for medical malpractice, which award is subject to the provisions of subsection b. of this section.

     "Judgment debtor" means a health care provider who, as a defendant in an action brought for medical malpractice, is required to pay the claimant an award that is subject to the provisions of this section.

     "Noneconomic damages" means damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.

     "Structured payment agreement" means an agreement made to settle a claim or lawsuit or respond to a judgment in an action brought for medical malpractice by an injured person whereby a series of periodic payments, rather than a lump sum payment, is made over time to a claimant, in accordance with the needs of the claimant or the claimant's family, either through the purchase of an annuity or the establishment of a trust fund, or by another means approved by the court.

     b.    [(1) Unless otherwise agreed to by the parties, in any judgment resulting from a medical malpractice action brought by a claimant for medical malpractice in which the noneconomic damages are less than or equal to $1,000,000, the court shall enter a judgment ordering that all of the money damages, both economic and noneconomic, be paid immediately.

     (2)   Unless otherwise agreed to by the parties, in] In any judgment resulting from a medical malpractice action brought by a claimant for medical malpractice [in which the noneconomic damages exceed $1,000,000], if agreed to by the parties, the court [shall enter a judgment ordering that 50% of the noneconomic damages be paid immediately, with the costs and attorney's fees to be paid from that amount.  The remaining 50% of the judgment shall be paid over 60 months] may approve payment of a judgment or settlement in the form of a structured payment agreement by any person, organization, group, or insurer that is contractually liable to pay the judgment.

     c.     The structured payment agreement shall specify:  the recipient of the payments; the dollar amount of the payments; the interval between payments; the number of payments or the period of time over which payments are to be made; and the persons to whom money damages are owed, if any, in the event of the judgment creditor's death.

     d.    In the event of the judgment creditor's death, any amounts due and owing pursuant to subsection b. of this section shall be paid to the judgment creditor's estate.

     e.     The judgment debtor or the judgment debtor's insurer shall be required to:  post a bond or security; or, as otherwise provided by regulation of the Department of Banking and Insurance, assure full payment of the noneconomic damages awarded.  A bond shall not be deemed adequate unless it is written by a company authorized to do business in this State and is rated A-, or better, by A.M. Best Company or such other company as is approved by the Department of Banking and Insurance. If the judgment debtor is unable to adequately assure full payment of the judgment, the judgment, reduced to present value, shall be paid to the claimant in a lump sum.  No bond may be canceled or be subject to cancellation unless at least 60 days' advance written notice is filed with the court and the claimant.  Upon termination of periodic payments, the security, or so much as remains, shall be returned to the judgment debtor.

     f.     Upon the purchase of an annuity, establishment of a trust, or approval of another arrangement for periodic payments by a court, any obligation of the judgment debtor with respect to the judgment shall cease.

(cf:  P.L.2004, c.17, s.24)

 

     7.    (New section) a. Every claim or demand filed against an insured for damages in excess of $100,000 per occurrence for economic loss and non-economic loss shall document the economic loss for which relief is sought and shall set forth in detail the economic loss incurred at the time the case is subject to a complementary dispute resolution proceeding, at the time settlement negotiations are entered into, or at the time a case is tried, as well as a detailed statement of claimed prospective economic loss resulting from the allegation of medical malpractice, which documentation shall be updated from time to time as necessary and shall be provided to the court, the complementary dispute resolution agent or, in the case of settlement, the defendant, as applicable.

     b.    In every trial in which damages are awarded in an action alleging medical malpractice, the trier of fact shall separately itemize damages awarded for economic loss and damages awarded for non-economic loss and the judge presiding over the proceeding shall review each verdict to determine pursuant to section 9 of P.L.2004, c.17 (C.2A:53A-42), whether the award is clearly inadequate, excessive, or disproportionate in view of the nature of the medical condition or injury that is the cause of action or because of passion or prejudice by the jury.

 

     8.    (New section) It shall be presumed that a person who signs an informed consent form or document for a medical procedure or other form of health care has read that form or document.

 

     9.    (New section) If an attorney representing a plaintiff in a medical malpractice action files the complaint using fictitious names for one or more persons who may be determined to be parties to the action but whose role is unknown at the time of the filing of the complaint, there shall be no time limitation within which the attorney may substitute the name of any person or persons for a fictitious name nor any other bar to such substitution if the person or persons are subsequently determined to be joined as a party to the action.

 

     10.  (New section) A physician licensed to practice medicine in this State shall not be liable for  civil damages as a result of any act or omission in connection with the rendering of any treatment or procedure for illness or injury if the treatment or procedure is rendered while the physician is performing the treatment or procedure as a volunteer, in good faith and without consideration, at a clinic, other health care facility, or any other location where the treatment or procedure is being rendered.

     11.  This act shall take effect immediately and shall apply to actions for damages that accrue on or after the effective date of the act.