In 2004, the New Jersey Legislature enacted the “New Jersey Medical Care Access and Responsibility and Patients First Act”.  See N.J.S.A. 2A:53A-38, et seq.  ( Patients First Act of 2004). This statute  imposes new requirements  regarding expert testimony and affidavits of merit in medical malpractice cases.  See, N.J.S.A. 2A:53A-41, “Requirements for person giving expert testimony, executing affidavit”. 

First, an individual may not give expert testimony or execute an affidavit of merit unless the expert is a licensed physician or other health care professional in the United States. Second,  an expert signing an affidavit of merit or testifying against a defendant must engage in the same specialty or subspecialty as  the defendant at the time of the alleged negligence. Third, if a defendant is board certified, then the expert must either be (a) credentialed by a hospital to treat patients for the same condition or perform the same procedure at issue in the case, or (b) a specialist or subspecialist board certified in the same specialty or subspecialty of the defendant who, in the year preceding the alleged negligence, either (i) devoted the majority of his professional  time in active clinical practice in the same health care profession in which the defendant is licensed,  or (ii) engaged in the instruction of students in an accredited medical school in the same health care profession in which the defendant is licensed.

The Patients First Act of 2004  makes other substantive changes that govern various aspects of medical malpractice cases:

- Under N.J.S.A. 2A:14-2(a), causes of action related to negligence injuring a child during birth must now be brought before the child is thirteen years old.

 - Pursuant to N.J.S.A. 2A:53A-39, the Courts are now empowered to refer malpractice cases to alternative dispute resolution.

 - N.J.S.A. 2A:53A-40 provides a summary procedure in which defendants may file an Affidavit of Noninvolvement  to demonstrate  that they are in the litigation as a result of a misidentification or  should be dismissed from the case because they were not involved in the care and treatment of the plaintiff and were not obligated to provide such treatment.

 - N.J.S.A.  2A:52A-42 changes the “shock the conscience” standard applicable to  remittitur and additur, allowing a judge to reduce a verdict if the judge determines that a verdict is clearly excessive in view of the nature of the medical condition or injury that is the subject of the cause of action or because of passion or prejudice by the jury. Id. 

 - Verdicts (not settlements) in which the non-economic damages awarded exceed one million dollars are subject to a requirement in which 50% of the judgement for noneconomic loss is payable over a 60 month period in the form of a structured payment agreement.

Practitioners should expect constitutional challenges to many aspects of this law, particularly the provisions that shorten the statute of limitations for minors and those that change the requirements for expert testimony.¨