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FAQ's
FREQUENTLY ASKED QUESTIONS
ANSWERS
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What is a Certified Trial Attorney?
A certified attorney in the State of New Jersey is subject to the
provisions of New Jersey Court Rule 1:39 which states 'an
attorney of the State of New Jersey may be certified as a civil
trial attorney, a criminal trial attorney, a matrimonial law
attorney or a workers’ compensation law attorney or in more then one
designated area of practice, but only on establishing eligibility
and satisfying requirements regarding education, experience,
knowledge and skill for each designated area of practice...'
In order to be eligible as a certified attorney
an applicant must be engaged in the private practice of law in good
standing with a plenary license at the Bar of the State of New
Jersey for at least five years. The attorney must exhibit extensive
and substantial experience as an attorney in the designated area of
practice as set forth in the Board on Attorney Certification
regulations. Such an attorney must meet Board requirements as to his
or her professional competence in the designated area of practice.
Peer review as well as inquiry of other attorneys as well as judges
with respect to the professional qualifications and reputation of
the applicant for attorney certification are used. An application
for a certification must demonstrate to the Certification Board
satisfactory and substantial educational involvement within the
three years immediately preceding his/her application. The Board
will evaluate the nature, sponsorship, faculty, content and duration
of educational involvements by applications on the case by case
basis.
In order to become eligible for certification in a
particular specialty such as a certified civil trial attorney the
applicant must complete a written examination as promulgated by the
Board on Attorney Certification after completion of the eligibility
requirements of Rule 1:39-2. The certification is good for a period
of five years after which a renewal of certification process must be
undertaken. The application for renewal must include information
specified in the regulations of the Board which set forth the
substantive and educational requirements for recertification. The
appropriate Certification Committee and the Board shall render a
decision regarding the application for renewal of certification in
the same manner as provided by the Rules of Court and regulations
for initial certification.
In the State of New Jersey, of the approximately 75,000
lawyers licensed to practice in the state, there are approximately
1700 certified attorneys of which approximately 1100 are certified
civil trial attorneys. Certification is a good marker of an
attorney’s competence in the designated field of practice as well as
an indication as to that attorney’s high ethical standard.
- What is medical malpractice?
Medical malpractice occurs when a physician fails to provide
appropriate healthcare according to established medical standards
and, as a result of that failure, causes injury to the patient that
otherwise would not have occurred. A physician can make a medical
mistake by doing something that should not be done, or by failing to
do something that should be done.
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- How can you determine if a doctor/hospital or
other health care provider has committed medical malpractice?
In order to determine if a doctor/hospital or other health care
provider has committed medical malpractice you should employ an
attorney who specializes in medical malpractice. That attorney will
have the appropriate background, knowledge and contacts in order to
properly screen and have evaluated medical records so as to answer
your question. The determination of medical malpractice requires a
through evaluation of all of the medical records by physicians,
nurses or other health care providers of similar background and
training as the doctor whose treatment is being reviewed. The expert
must determine that the doctor failed to provide care according to
accepted standards of medicine or surgery. Medical expert testimony
is almost always required to prove errors on the part of the
physician and additionally causation. That is to say, that the error
on the part of the physician actually caused an injury which would
not have occurred had the care been appropriate.
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- How do you know if you have a case?
In order for you to know if you have a medical malpractice claim
that is viable you need to have the assistance of an experienced
medical malpractice attorney to evaluate the legal, medical and
economic aspects of your potential claim. The attorney must
determine whether the injury or the discovery of the injury is
sufficiently recent in time so that it is not barred by the statute
of limitations defense. The attorney must advise you on the economic
consequences of engaging in medical malpractice litigation so that
you can determine whether a suit will be fruitful for you. Next an
attorney must obtain all relevant medical records, organize them and
analyze them to see if the medical facts support the claim. If the
medical facts appear to support the claim the attorney must select
knowledgeable and articulate experts who are willing to review the
potential claim, give an honest opinion in regard to the physician’s
conduct and are willing to testify at the time of trial in support
of the claim. Only after your medical malpractice attorney has
obtained the necessary expert testimony to support claims of medical
negligence and the causation of that negligence to your injuries do
you know that you have a case.
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- How long do you have to bring a medical
malpractice lawsuit?
The period of time within which an injured patient can bring a
medical malpractice lawsuit is called the statute of limitations.
The statute of limitations for bringing a medical malpractice
lawsuit varies from state to state. In New Jersey an injured patient
has two years from the date of the injury caused by malpractice to
bring a lawsuit or in the event that the patient does not discover
the malpractice for bonafide reasons then two years from the date on
which the patient reasonably should have known that malpractice
occurred causing an injury. In addition to general statute of
limitations there are often specialized statutes pertaining to
notice of a claim to a public entity. The general rule is that an
appropriate notice of claim to an entity such as a public
institution, for example a university hospital is 90 days from the
date of the event. A written notice must be served within that 90
day period or there is a likelihood that the claim will not prove to
be viable even though the general statute of limitations is two
years. Because of these specialized tort notice of claim
requirements you should bring a potential medical malpractice claim
to the attention of an experienced malpractice attorney as soon as
it is discovered in order to protect your rights.
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- Does signing a consent form waive a person’s
right to bring a medical malpractice claim?
No. All medical treatment must be provided with the patient’s
informed consent except in extra ordinary emergency situations.
Patients sign a general consent form for treatment upon admission to
a hospital and a specific consent form to have an invasive procedure
or operation performed upon them. The specific consent form for a
procedure or operation must be signed by the patient indicating that
the doctor has explained the nature of the patient’s problem, the
suggested treatment as well as alternative treatments, the risks
attendant to those various treatments and that the patient has had
an opportunity to ask questions before consenting to the recommended
treatment. Signing the consent form does not waive a patient’s right
to bring a medical malpractice claim if the doctor fails to provide
medical care in accordance with accepted medical practice. In other
words, if the doctor is negligent the fact that the patient signed
the consent form does not absolve the doctor of negligence.
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- What is lack of informed consent?
Informed consent is a duty imposed by law upon physicians so that
the physician gives the patient the opportunity to chose what is
going to be done in regard to that patients own particular care and
his or her own body. Lack of informed consent occurs when the
patient develops an injury during a medical procedure or operation
and the injury is a risk recognized by the medical community but undisclosed to
the patient by the doctor, and, had the patient been advised about
that risk beforehand by the doctor then the patient would not have
consented to the treatment that was performed but would have chosen
one of the alternatives, including possibly doing nothing, if that
was a viable alternative. The determination as to whether a patient
would have chosen an alternative treatment if the undisclosed risk
was known is determined by a jury based upon what the jury feels a
reasonable patient would have done if the withheld information had
been given to the patient.
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- Can anything be recovered if medical
malpractice causes a patient to die.
Yes. This is called a Wrongful Death action. Wrongful Death
actions are brought in connection with medical malpractice claims
when the patient dies as a result of the medical negligence.
Recovery under a Wrongful Death Action Claim is limited to economic
losses suffered by those who are dependant on the deceased patient.
Example, a Wrongful Death Act Complaint may be instituted in the
event of the death of a gainfully employed husband who has a wife
and children whom he supported. In addition a wife who dies as a
result of medical malpractice who leaves a husband and children will
have a Wrongful Death Action for her economic support, guidance and
counsel to her husband and children even if she was not gainfully
employed outside the household. Similarly the death of a child is
often followed by a Wrongful Death Action. A Survival Action is an
action for pain and suffering that the deceased suffered as a result
of the negligence of the defendant doctor before the injured patient
ultimately died. In regard to the Wrongful Death Action the statute
of limitations for filing the complaint in court is two years from
the date of the death of the victim.
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- What steps does an experienced medical
malpractice attorney take to properly and fairly evaluate a
potential claim?
An experienced medical malpractice attorney first takes a
detailed history from the client to learn all of the medical
treatment that the individual has received so that the necessary
medical records can be obtained. We generally like to obtain a
historical narrative from the client outlining what the doctor did
and what the patient believes the doctor did wrong and the result
there-of. Next, assuming that the medical malpractice attorney
believes that from an economic point of view there is a case to
pursue as well as from a medical legal point of view, all of the
relevant medical records must be obtained from the medical
providers. After obtaining the records, the records are organized
according to provider and are studied by the attorney or by an
experienced legal nurse consultant and/or physician working with the
attorney. Based on a medical review of the record the attorney must
make a determination as to what expert medical witnesses are needed
to prove plaintiff’s case. Once that is determined, the records are
forwarded to medical expert witnesses who charge a fee for review of
the records. Upon receipt of a positive opinion from a medical
expert witness that the defendant deviated from accepted standards
of care and that the medical negligence caused injury which would
otherwise not have occurred the attorney knows there is a viable
medical malpractice claim. As you can appreciate the steps involved
above take time and ordinarily it takes three to six months to get
the claim evaluated properly. However, under special circumstances
where the statute of limitations is going to run and the attorney
truly believes there is a good case then the steps involved can be
expedited.
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- What can a Certified Trial Attorney who
specializes in medical malpractice do for you that a regular
attorney cannot?
Medical malpractice cases are won primarily on the medical
records and the medical expert opinion in support of the plaintiff’s
case. A Certified Civil Trial Attorney is an attorney who has been
certified by the Supreme Court of New Jersey, as capable and able in
the field of trial practice. A Certified Trial Attorney who
specializes in medical malpractice holds himself out as having
special expertise in that field and is generally more knowledgeable
then an attorney who has little exposure to medical malpractice
claims. In the case of our firm, Leifer, Levine & Associates not only possesses
the knowledge of an attorney whose has been certified four times by
the New Jersey Supreme Court as competent in the field of trial
practice but is also a registered pharmacist by former occupation
and has special training in the fields of medicine and the effects
of drugs on an individual. This allows Leifer, Levine & Associates to appreciate
and understand complex medical and drug related issues that an
ordinary attorney simply cannot comprehend. That special expertise
allows Leifer, Levine & Associates when working with medical expert witnesses to
affectively work with the expert witness and compliment and assist
the medical expert in terms of bringing to the attention of the jury
the medical issues in the way that a jury can understand.
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- Can a medical malpractice law firm handle
highly specialized areas of medicine?
It is precisely because a medical malpractice law firm regularly
works with medical experts in highly specialized areas of medicine,
that a medical malpractice firm can understand, organize and present
complex medical facts to a judge and jury. A medical malpractice law
firm has many contacts with expert witnesses, often in specialized
areas of medicine, and is able to bring vast resources together for
the benefit of the client.
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- What should you bring to the first meeting?
If your case is a medical malpractice case you should bring with
you any and all medical records that you have as well as a list of
all physicians and hospitals that you have visited over the last ten
years. You should also bring any x-rays or other imaging films in
your possession as well as any photographs that you may have which
would be evidence of your injuries. You should also in advance of
your meeting if possible, begin to prepare a rough draft of an
historical narrative outlining your prior history, your relationship
with the doctor you are unhappy with, what happened to you and what
injuries both of a temporary and permanent nature you believe the
doctor caused as a result of his/her negligence.
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- How does an attorney find experts to help
with your case?
The law firm of Leifer, Levine & Associates has practiced in the field of
medical malpractice for over 35 years; we have built up our own list of “experts.” These experts include accomplished certified
experts in the fields of medicine and science that can address cases
involving claims of medical malpractice. In addition, we
use at least three forensic medical legal services which constantly
add to our list of experts and supply us with fresh and qualified
experts in various fields. We have successfully handled cases of
almost every type involving medical malpractice including brain
damaged children, cerebral palsy, delay in diagnosis of cancer,
obstetric and gynecologic injuries, orthopedic injuries, internal
medicine injuries, urologic injuries, neurological injuries,
pediatric injuries, and many many other fields.
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- Where can you get information about your
doctor?
You can obtain information about your doctor from the New Jersey
Board of Medical Examiners or the licensing body of your state. You
may also obtain information about your doctor off the internet. You
can also frequently obtain other information from the medical
society of your state and the hospital where your doctor practices.
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- How can you find out if your doctor has had
any medical malpractice claims?
In the State of New Jersey you can check whether your doctor has had
any medical malpractice claims by checking on the internet. The
internet sites is
www.njdoctorlist.com
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- Will your time and effort spent in pursing a
medical malpractice claim be worth it?
The law firm of Leifer, Levine & Associates and independent medical reviewers
that we employ take great efforts to screen out those cases that are
not likely to result in proof of a departure from standard medical
practice that causes an injury. We also screen cases in terms of
their economic viability. If the case is not sustainable either
medically or economically we will let you know as soon as possible.
Very frequently that is at the first meeting. If the firm is
prepared to undertake your representation it is generally a case
which we believe will be worth our time and your time since it is
our policy to limit our representation in medical malpractice cases
to those with a likelihood of success and significant financial
recovery.
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- What is an Affidavit of Merit?
An Affidavit of Merit is a sworn statement from a doctor or other
health care professional practicing in the same field of medicine as
the doctor whom you are suing that is critical of the defendant
doctor for practicing below generally accepted standards of medical
care. In New Jersey an Affidavit of Merit must be filed by a
plaintiff within 60 days of the time the defendant files his answer
to the complaint. The 60 days limit, upon motion to the court, can
be extended to 120 days. Failure to serve and file an appropriate
affidavit of merit timely in a medical malpractice case will result
in the complaint being dismissed with prejudice by the court.
Therefore it is very important and strongly preferred for
plaintiff’s malpractice attorney to thoroughly investigate and work
up a potential claim before filing a lawsuit.
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