In this article, you will learn…
- About certificates and affidavits of merit,
- What medical malpractice claims aren’t likely to be successful, and
- What sets Attorney Marc Portlock apart from other attorneys.
What Is The First Step To Filing A Medical Malpractice Claim In New Jersey Or Pennsylvania?
The first step to a medical malpractice case in New Jersey and Pennsylvania is to have a licensed medical professional issue a statement saying that your case has merit; that the doctor, hospital, or medical provider at issue breached the standard of care applicable. There is a slight difference in how this is dealt with in each state.
Pennsylvania – Certificate of Merit
The Certificate of Merit is something that doesn’t necessarily have to be filed, but the attorney must have it on file to be produced upon request.
New Jersey – Affidavit of Merit
The affidavit of merit must be filed with the court in New Jersey. If you don’t file the affidavit of merit, after the answer is filed in response to the medical malpractice complaint, you then have 90 days to file it or provide it to your adversary. If you fail to file the affidavit of merit, you run the risk of your case potentially being dismissed.
Procedurally, what typically happen is that a case management conference takes place. This conference is called a Ferrara conference and it is where your adversary will voice their objection to either not being provided with the affidavit of merit or assert that the affidavit is deficient in some way. This objection could be that it wasn’t provided by a like licensed professional. For example, the affidavit of merit is from a licensed professional who is an orthopedist and the case involves a neurologist.
If you don’t correct any objections to your affidavit of merit within the time given by the judge – typical 30 to 60 days – the judge will likely think the objection is valid. You can pretty much rest assured your adversary will file a motion to dismiss and that motion will be granted.
Once you get over that first hurdle, however, an experienced attorney in medical malpractice, who knows the challenges of proving your case, will be able to help you navigate the process to the best possible outcome.
What Are Some Of The Examples Of Medical Malpractice Claims Brought That Are Not Likely To Be Successful?
A lot of times, people complain of bad practice and that really doesn’t rise to the level of medical malpractice. Sometimes you will see cases where you don’t get the best care in the world, but it’s still within the standard. There will be a lot of cases where a person is asking or asserting that a medical provider should have made a different decision or made a decision sooner because, in hindsight, these injuries could have been avoided. Whether or not that’s true, it may still not rise to medical malpractice if they acted within the standard. Your doctor doesn’t have to go above and beyond, unfortunately. The standard is what a reasonable doctor would do and, typically, these doctors are able to prove that they met that standard.
So, that being said, any claims that deals with the idea of hindsight or second-guessing decisions are going to have a low rate of success.
Sometimes, when the claim involves an individual with a pre-existing comorbidity, those claims can be very difficult to prove. Some pre-existing conditions that make proving claims difficult could include…
- Heart conditions, and
If your loved one is 300 pounds and has been in good health their entire life, but then they start having heart conditions at age 55, every cardiologist is going to attribute those heart conditions to obesity. At some point, an obese individual is likely to have heart illness and their health is going to go downhill. Often it goes downhill quickly.
So, when it comes to individuals with pre-existing conditions, or of a certain age, and they become ill or pass away, these things do happen and those claims aren’t going to be successful.
Has There Ever Been A Case That Almost Brought You To Tears?
When you’re a personal injury attorney dealing with medical malpractice cases, you see a lot of truly heart-wrenching situations. It’s difficult not to feel deeply empathetic for my clients as they go through these difficult situations. I could give you a dozen cases, just off the top of my head, that almost brought me to tears.
A more recent case that I dealt with, which is a confidential result that I’m not at liberty to fully discuss, involved an individual who is in their fifties and who is now permanently paralyzed. They’re going to be living in their house and their wife, also in her fifties, is going to have to care for him for the rest of their lives.
In these cases, you really have to think about what your clients want. What’s truly in their best interest? Sometimes it isn’t about recovering the largest amount of money. Sometimes it looks different, like getting them quality of care or helping them regain respect or maybe finding some other way to lighten their load and help carry their burdens for them.
When you have a case where the spouse is responsible for providing care and they’re living in their basement, maybe you do have a good case but there are always defenses that can be raised. Where will these people be if we decide to litigate, and it takes two to three years? What’s their memory going to be like if their health continues to decline? Will they be able to show up on the stand and testify? Do you really want these people to continue living in this current situation while you pursue litigation, or is it in their best interest for you to negotiate a settlement?
A lot of times, people in this situation aren’t looking to become a millionaire or live a wealthy lifestyle. You really have to look at the situation, look at what is in the best interest of the individuals, and determine what path to take. And, believe it or not, that path isn’t always going to look like getting the largest sum of money.
The best path may look like regaining some dignity, getting the individuals help with care, and moving them out of the basement. Perhaps a settlement looks like getting their house renovated, or it could look like getting a structured settlement with life care provisions and Medicare provisions.
You’re going to need an attorney who can look at your case with empathy and assess your needs in a way that puts your best interests at the forefront. You need someone who not only has experience in these very devastating cases but someone who understands how to guide you through a structured settlement if that’s what is going to be the best outcome for you.
A structured settlement can provide a certain amount of money every month that you can count on. It can also mean working with a company that’s going to serve as Concierge. You can ask questions of the Concierge, such as if you need a piece of equipment, or if you need help traveling to another city or state. You can ask them who to call if your loved one has an issue while traveling. These are experienced professionals and not a lot of attorneys actually know about these companies and can guide their clients in getting set up with them, but we do.
For more information on Medical Malpractice Claims In NJ & PA, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (609) 356-0862 today.