When you undergo surgery, you put your wellbeing in the hands of the surgeon and their team, expecting them to uphold their professional standards. Unfortunately, many medical providers are negligent and fall short of these standards. If you or your loved one has suffered due to a surgical error in New Jersey, you may claim compensation under medical malpractice law. A successful claim, however, involves strict requirements and overcoming several hurdles.
Contact us at The Grossman Law Firm for help with your surgical error claim. As a personal injury firm serving clients throughout New Jersey, we’ve handled cases involving serious medical injuries and understand how these claims work in our state’s courts. We know what it takes to build a strong case, and our service has resulted in millions of dollars of compensation for our clients.
We offer a free consultation, and won’t charge any fees unless we win for you.
Understanding Surgical Errors in New Jersey
Surgical errors happen when a medical professional makes a preventable mistake before, during, or after a procedure. These aren’t just bad outcomes resulting from inherent risks. They are situations where a competent surgeon, following proper protocols, would not have made the same mistake.
Common types of surgical errors include:
- Operating on the wrong body part or the wrong side
- Performing the wrong procedure entirely
- Leaving surgical instruments or sponges inside a patient
- Damaging nearby organs, nerves, or blood vessels
- Administering incorrect anesthesia
- Making errors during post-operative care.
Some of these mistakes are so obvious that courts call them “never events.” They should simply never happen when proper safety measures are in place.
What New Jersey Law Requires You to Prove
Medical malpractice claims in New Jersey aren’t simple negligence cases. You must establish four key elements:
- A doctor-patient relationship existed. The surgeon or hospital had a duty to provide you with competent care.
- The provider breached the standard of care. A qualified medical expert must confirm that the surgeon’s actions fell below what a reasonably skilled professional would have done under similar circumstances.
- The breach caused your injury. You must connect the error directly to the harm you suffered. This can be challenging when patients have underlying health conditions.
- You suffered actual damages. This includes medical bills, lost wages, pain, disability, and diminished quality of life.
New Jersey medical malpractice law is governed by multiple statutes and doctrines. These include the two‑year statute of limitations (New Jersey Revised Statutes 2A:14‑2), the Affidavit of Merit statute (New Jersey Revised Statutes 2A:53A‑27) and related provisions.
The Affidavit of Merit Requirement
New Jersey has a unique procedural hurdle that weeds out cases lacking merit. Within 60 days after the defendant answers your complaint, you must provide an Affidavit of Merit from a qualified medical expert.
This affidavit is a sworn statement from a licensed physician confirming there’s a reasonable probability that your surgeon’s care fell below acceptable standards. Without it, your case can be dismissed.
For surgical error cases, the affiant generally must practice in the same specialty or a closely related field as the defendant.
This requirement makes it essential to consult with an experienced attorney early. Attorney Scott D. Grossman at The Grossman Law Firm understands these procedural requirements and can help ensure your case meets all legal thresholds.
Time Limits for Filing a Surgical Error Lawsuit
New Jersey’s statute of limitations gives you two years to file a surgical error lawsuit. But when does that clock start?
For most surgical errors, the two-year period begins on the date of the surgery. If something went wrong on the operating table and you knew about it immediately, your deadline runs from that day.
However, New Jersey courts recognize the “discovery rule” for situations where the injury wasn’t immediately apparent. If a surgeon left a sponge inside you during an appendectomy and you didn’t discover it until experiencing pain months later, your two-year window typically starts when you discovered (or reasonably should have discovered) the problem.
There are important exceptions:
- Minors: Children generally have until two years after their 18th birthday to file a lawsuit.
- Birth injuries: Claims for injuries sustained at birth must be filed before the child’s 13th birthday.
- Wrongful death: If surgical malpractice leads to death, the family has two years from the date of death to file.
Missing these deadlines can permanently bar your lawsuit. Courts take these time limits seriously, and extensions are rarely granted.
How Courts Evaluate Surgical Error Claims
New Jersey follows a modified comparative negligence system. If you’re found partially at fault for your injuries, your compensation gets reduced by your percentage of responsibility. But here’s the catch: if you’re more than 50% at fault, you recover nothing.
In surgical cases, defendants sometimes argue that patients contributed to their injuries by not following post-operative instructions, failing to disclose relevant medical history, or ignoring warning signs. A thorough investigation can counter these defenses.
The Grossman Law Firm approaches each case by gathering complete medical records, consulting with appropriate medical experts, and building a timeline that shows exactly where the standard of care was breached.
Types of Compensation Available
New Jersey doesn’t cap (limit) the amount of compensatory damages you can receive for surgical errors. You may be entitled to recover:
- Past and future medical expenses
- Lost income
- Reduced capacity to earning
- Physical pain
- Mental or emotional suffering
- Loss of enjoyment of life
- Costs of ongoing rehabilitation
- Other related losses.
Punitive damages are rare and only awarded in cases involving egregious conduct. When awarded, they’re capped (limited) at $350,000 or five times your compensatory damages, whichever is greater.
Supporting Data on Surgical Errors
The scope of surgical errors nationwide underscores why these cases matter. A recent US study, published in 2024, revealed that adverse events such as infections and deaths occurred in 38% of studied surgeries, and 60% of these adverse events were preventable.
According to the American College of Surgeons, in 2023 alone, they found 112 “wrong surgeries,” which are those on a wrong body part, on a wrong patient, or with an incorrect procedure. An additional 110 surgeries involved the “unintended retention of a foreign object,” which means objects were left inside patients’ bodies. These items included:
- Sponges
- Guide wires
- Fragments of instruments such as catheters and foley balloons
- Dental retractor cords
- Cotton patties (cottonoids)
- Surgical scissors.
These alarming statistics reinforce why hospitals must absolutely implement safety protocols like surgical timeouts and checklists. They also show why patients who’ve been harmed deserve legal recourse.
FAQs About Surgical Error Claims in New Jersey
How do I know if I have a valid surgical error case?
You likely have a case if your surgeon made a mistake that a competent professional wouldn’t have made, and that mistake caused you measurable harm. Consult with an attorney who can have a medical expert review your records.
Can I sue the hospital as well as the surgeon?
Yes. Hospitals can be held liable for the negligence of their employees and, in some cases, for failing to maintain safe practices. If your surgeon was an independent contractor, the analysis becomes more complex.
What if I signed a consent form before surgery?
Consent forms acknowledge the inherent risks of a procedure. They don’t protect surgeons from liability for preventable errors or negligent conduct. Complications are one thing; carelessness is another.
How long do these cases typically take?
Medical malpractice cases in New Jersey often take two to four years to resolve. Discovery is extensive, expert testimony is required, and settlement negotiations can be lengthy. Some cases go to trial, which adds more time.
Key Points to Remember
- Surgical error claims require proof that your surgeon breached the accepted standard of care.
- New Jersey law gives you two years from injury or discovery to file a lawsuit.
- An Affidavit of Merit from a qualified medical expert is mandatory within 60 days of the defendant’s answer.
- There are no caps on compensatory damages for medical malpractice in New Jersey.
- Timing matters because procedural requirements are strictly enforced.
Contact The Grossman Law Firm for Help With Your Personal Injury Case
If a surgical error has affected your life or the life of someone you love, you have the right to seek answers and accountability. These cases are complex, but the right legal guidance makes a difference.
Scott D. Grossman, Esq. is a top-rated personal injury attorney in New Jersey. Visit his attorney profile to learn more about his experience and results.
Call (732) 625-9494 to schedule a consultation.
