ASSEMBLY, No. 3137

STATE OF NEW JERSEY

215th LEGISLATURE

 

INTRODUCED JUNE 21, 2012

 


 

Sponsored by:

Assemblyman  HERB CONAWAY, JR.

District 7 (Burlington)

 

 

 

 

SYNOPSIS

     Revises various laws concerning medical malpractice.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning medical malpractice and amending and supplementing P.L.2004, c.17, and amending P.L.1995, c.139.

 

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

 

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

     17.  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 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] unless the claim results in a medical malpractice claim settlement, judgment, or arbitration award against the insured. For the purposes of this section, "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.

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

 

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

     2.    a.  (1)  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.  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.

     (2)  A person executing an affidavit pursuant to paragraph (1) of this subsection 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.

     b.  (1)  In the case of an action for medical malpractice[,]:

     (a) 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); and

     (b)  the affidavit shall identify the specific act by the defendant that is the basis for the cause of action against the defendant, and, in event that there was a provider-patient relationship between the defendant and the plaintiff, establish the basis for that relationship.

     (2)  In all [other] cases other than medical malpractice 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.]

(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 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.     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, 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.

     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.     An expert witness who intentionally misrepresents the applicable standard of care or practice shall be liable to a civil penalty not to exceed $10,000 and other expenses incurred including attorney’s fees, as a result of the affidavit that was executed or testimony that was given.  The court shall refer any finding of intentional misrepresentation to the Attorney General and to the appropriate licensing board for further review and to determine if the alleged misrepresentation constitutes grounds for disciplinary action by the board.

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

 

     4.    (New section)  a.  As used in this section:

     "Condominium" means the form of real property ownership provided for under the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.).

     "Dwelling house" means any residential property assessed as real property but shall not include a unit in a condominium or a horizontal property regime.

     "Homestead" means:

     (1)   a dwelling house and the land on which that dwelling house is located which constitutes the place of the owner's domicile and is owned and used by the owner as the owner's principal residence;

     (2)   a condominium unit or a unit in a horizontal property regime which constitutes the place of the owner's domicile and is owned and used by the owner as the owner's principal residence; or

     (3)   a manufactured home as defined in section 2 of P.L.1990, c.61 (C.54:4-8.58).

     "Horizontal property regime" means the form of real property ownership provided for under the "Horizontal Property Act," P.L.1963, c.168 (C.46:8A-1 et seq.).

     "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.

     "Owner" means a person possessing legal or equitable title to a homestead.

     "Principal residence" means a homestead occupied by the owner as the owner's permanent residence, as distinguished from a vacation home, property owned and rented or offered for rent by the owner, and other secondary real property holdings.

     b.    Notwithstanding any law to the contrary, in any judgment resulting from a medical malpractice action brought by a claimant for medical malpractice, the judgment debtor may hold a homestead exempt from attachment, execution, and forced sale based on that judgment.

 

     5.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill revises various laws concerning medical malpractice claims against health care professionals.

     The bill provides that 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, as defined in the bill, results in a medical malpractice claim settlement, judgment, or arbitration award against the insured.

     The bill provides that, in the case of an action for medical malpractice, an expert submitting an affidavit on reasonable probability of a breach of professional standards shall identify the specific act by the defendant that is the basis for the cause of action against the defendant, and, in event that there was a provider-patient relationship between the defendant and the plaintiff, establish the basis for that relationship.

     The bill provides that an expert submitting an affidavit or giving testimony on reasonable probability of a breach of professional standards is liable for intentionally misrepresenting the applicable standard of care or practice to a civil penalty not to exceed $10,000 and other expenses incurred including attorney’s fees, as a result of the affidavit that was executed or testimony that was given.  The court shall also refer any finding of intentional misrepresentation to the Attorney General and to the appropriate licensing board for further review and possible disciplinary action.

     The bill also allows a health care provider to hold a homestead, as defined in the bill, exempt from attachment, execution, and forced sale in any judgment resulting from a medical malpractice action brought by a claimant for medical malpractice.