If you or a loved one was the victim of medical malpractice, it can help to know some of the strategies the doctor’s lawyer might use to try to defeat your claim for compensation. Medical malpractice cases are sophisticated litigation. The doctor’s professional liability lawyer has teams of lawyers who do nothing but try to find ways to get out of paying injured people what they deserve. A New Jersey medical malpractice attorney can help protect your right to money damages for your losses.
Here are some of the common defenses to medical malpractice cases in New Jersey:
The Statute of Limitations
You only have a short amount of time to take legal action against the healthcare professional or facility that injured you. If you wait too long to file a lawsuit, our state’s laws can bar you from ever being able to seek compensation. The rules and exceptions to the rules about the deadline are complicated. Your lawyer can determine whether you still have time to file a medical malpractice claim.
Someone Else Is Liable
The delivery of medical services often involves multiple parties. For example, if you had surgery, the potential defendants can include entities like the surgeon, anesthesiologist, hospital or surgical center, laboratory, pathologist, radiologist, and others. When something goes wrong, these different parties often point the finger of blame at each other. It can be challenging to discover whose mistake caused the undesired outcome.
The Plaintiff Is Partly to Blame
New Jersey follows the rule of modified comparative fault. You can be partly to blame and still pursue financial compensation for your losses as long as your negligence was 50 percent or less of the total fault. The court will assess the degree of fault of each party and apportion money damages based on those proportions.
Let’s say that you had an adverse reaction to a medication your doctor prescribed. You were partly at fault, because you forgot to tell the doctor about a reaction you had to a similar drug in the past. The doctor was partly to blame, because other information in your medical chart should have alerted the physician to the likelihood of a problem with the medication.
The judge calculates your damages at $250,000 and assigns 25 percent of the blame to you and 75 percent to the doctor. Your 25 percent fault will reduce your money damages by 25 percent, so you will get $187,500 instead of $250,000. If the judge found you 51 percent or more at fault, you would get nothing.
The Defendant Has Immunity from Liability
The New Jersey Tort Claims Act allows injured individuals to sue the state, county, and other political subdivisions, but this law has some exceptions. Here are some of the situations in which public entities are not liable:
- Decisions about whether to act in the interests of the community’s public health
- Providing adequate facilities, personnel, or equipment in a medical or mental health facility
- The terms and conditions of confinement for drug addiction or mental illness
Because those exceptions only apply to public entities, you can still sue private healthcare professionals and facilities.
Do not wait too long to find out whether you might be eligible for compensation for medical malpractice. Schedule a consult with one of our New Jersey medical malpractice attorneys to protect your legal rights.