A NJ malpractice attorney is often confronted at the outset of a case with a puzzle. It may be clear that his client has been the victim of medical malpractice. But it is not always clear exactly who caused the malpractice.
This becomes a major issue for the medical malpractice attorney as time passes. There is a deadline to sue of two years. (There are exceptions in some cases as to the amount of time). This deadline is referred to as the statute of limitations. If the NJ malpractice attorney does not sue the right parties by the deadline, his client will not be able to recover any compensation.
Now, the law does provide a little leeway. The two-year deadline normally starts from the time when the malpractice is committed. However, if the victim can show that a reasonable person wouldn’t have realized that malpractice had occurred until a date after the actual error was committed, then the deadline doesn’t begin to run until that later date.
A 2015 New Jersey appeals court decision illustrates this. Aaron suffered from kidney failure. His doctors scheduled him for a kidney transplant in April 1999. Prior to the procedure, Aaron’s doctor inserted a catheter through Aaron’s jugular vein into his heart. (A catheter is a thin tube). Later, the doctor substituted a different catheter.
In 2004, Aaron returned to the doctor, because his body rejected the new kidney. Soon after, the doctor found a piece of catheter embedded in Aaron’s heart. The doctor needed to remove it by open heart surgery.
The doctor’s notes reflect that, a week later, the doctor met with Aaron. At the meeting, the doctor’s notes state that the doctor told Aaron that, “I was responsible for the retained piece, as I could think of no other reasons for its presence.”
Aaron hired a NJ malpractice attorney. The medical malpractice attorney hired an expert, who assumed that the catheter found in Aaron’s heart was the 1999 one. The expert claimed that the catheter must have been defective, causing a piece to break off.
Aaron sued the catheter’s manufacturer. His lawyer filed the lawsuit in 2006, within two years of the 2004 catheter insertion.
NJ Malpractice Attorney Must Sue All Those Possibly Responsible
Later, after more medical records were subpoenaed, Aaron’s medical expert concluded that it was the 1999 catheter that was the problem. And that the doctor was at least partially at fault.
Aaron’s NJ malpractice attorney now added the doctor to the lawsuit. The doctor’s lawyer filed a motion to throw the case against the doctor out of court. The doctor’s defense was that Aaron had waited too long to sue the doctor. More than two years had passed from the alleged error.
The trial judge agreed with the doctor. Accordingly, the judge dismissed the case against the doctor. Aaron’s medical malpractice lawyer appealed. The appeals court also sided with the doctor.
Aaron’s NJ malpractice attorney relied on a 1998 NJ Supreme Court case. The case ruled that the suit deadline did not begin to run until the victim’s second medical expert report told the victim that his doctor was at fault.
The court disagreed. Unlike in the case the NJ malpractice attorney relied upon, Aaron’s doctor confessed to Aaron. Therefore, the appeals court ruled, Aaron should have sued his doctor within two years of that confession. Because he did not, the doctor would escape liability.
I disagree with the court’s ruling. The doctor did not really “confess” to anything specific. The confession was not a good reason for Aaron to question what his expert first told him.
This case illustrates the wisdom of hiring a competent NJ malpractice attorney. A lawyer generally should sue anyone even arguably responsible for malpractice.