How a medical malpractice lawsuit works
Short answer
- Malpractice is a professional breaching the duty to follow generally accepted professional standards, Cornell's Legal Information Institute says.
- Diagnostic errors are the leading type of paid malpractice claims, the National Academies found.
- In New Jersey, the person suing must also give each defendant an affidavit of merit.
Checked October 21, 2026.
Sources: Wex, Malpractice; Improving Diagnosis in Health Care (2015), Summary; N.J.S.A. 2A:53A-27. Every fact cites a source
What has to be proven
Malpractice, or professional negligence, is a professional breaching their duty to a client, Cornell's Legal Information Institute says. The other elements of negligence must also be shown.
- The standard of careA professional's duty is generally to follow generally accepted professional standards.Source: Wex, Malpractice
- A breach of itThe care fell short of that duty.Source: Wex, Malpractice
- CauseThe breach caused the harm, both in fact and as a legal matter.Source: Wex, Malpractice
- DamagesHarm the patient can recover for.Source: Wex, Malpractice
28 states had rules for filing an affidavit or certificate of merit in a medical liability case, the National Conference of State Legislatures counted in 2021.
Source: Medical Liability/Malpractice Merit Affidavits and Expert WitnessesThe person suing must give each defendant an affidavit from an appropriate licensed professional, within 60 days after its answer. A court may allow up to 60 more days for good cause.
Source: N.J.S.A. 2A:53A-27Misdiagnosis: the leading paid claim
Diagnostic errors are the leading type of paid medical malpractice claims, the National Academies of Sciences, Engineering, and Medicine reported in 2015.
- What a diagnostic error isA failure to establish an accurate and timely explanation of a patient's health problem, or to communicate that explanation to the patient.Source: Improving Diagnosis in Health Care (2015), Summary
- How common it isMost people will experience at least one diagnostic error in their lifetime, the report says.Source: Improving Diagnosis in Health Care (2015), Summary
- An error alone isn't a claimA malpractice claim still has to show the care fell below generally accepted standards and caused harm.Source: Wex, Malpractice
Can you sue a hospital?
An employer can be legally responsible for an employee's wrongful acts within the scope of the job.
Source: Wex, Respondeat superiorThat rule applies to employees, but not to independent contractors. Each state sets its own tests for it.
Source: Wex, Respondeat superiorWritten notice of a claim against a public entity is due within 90 days after the claim arises.
Source: N.J.S.A. 59:8-8; N.J.S.A. 59:8-9NJBirth injury claims in New Jersey
A child's claim for an injury at birth follows the malpractice rules above, with its own deadline and a judge's review of any settlement.
A child's malpractice claim for injuries at birth must be filed before age 13.
Source: N.J.S.A. 2A:14-21At a hearing to approve a child's injury settlement, the judge decides whether it is fair and reasonable.
Source: R. 4:44-3; R. 1:21-7(c)(6)If a child's case settles before a jury is seated, the fee is capped at 25%.
Source: R. 4:44-3; R. 1:21-7(c)(6)What malpractice cases pay
We couldn't find a public source we can check that reports a typical malpractice settlement. The closest national count is of trials, from the Bureau of Justice Statistics.
The share of malpractice trials in state courts that year that the person suing won.
What winners at trial were awarded. Not a settlement, and not a value for anyone's claim.
NJThe deadlines in New Jersey
- Sue, in generalN.J.S.A. 2A:14-2(a)2 years
- A child's injury at birthN.J.S.A. 2A:14-21Before age 13
- Wrongful deathN.J.S.A. 2A:31-32 years after the death
- A public hospital or agencyN.J.S.A. 59:8-8Notice within 90 days
Sources
- Wex, MalpracticeWhat malpractice is, and what has to be shown. Checked .
- Improving Diagnosis in Health Care (2015), SummaryWhat a diagnostic error is, how common, and its place among paid malpractice claims. Checked .
- N.J.S.A. 2A:53A-27Justia, 2025 New Jersey Revised Statutes. Checked .
- Medical Liability/Malpractice Merit Affidavits and Expert WitnessesHow many states require an affidavit or certificate of merit. Checked .
- Wex, Respondeat superiorWhen an employer answers for an employee's acts. Checked .
- N.J.S.A. 59:8-8Justia, 2025 New Jersey Revised Statutes. Checked .
- N.J.S.A. 59:8-9Justia, 2025 New Jersey Revised Statutes. Checked .
- N.J.S.A. 2A:14-21Justia, 2025 New Jersey Revised Statutes. Checked .
- R. 4:44-3New Jersey Court Rules, via Court Rules Network. Checked .
- R. 1:21-7(c)(6)New Jersey Court Rules, via Court Rules Network. Checked .
- Bureau of Justice Statistics, Civil Bench and Jury Trials in State Courts, 2005 (October 2008, NCJ 223851)State court malpractice trials in 2005: how often the person suing won, and the median award. Checked .
- N.J.S.A. 2A:14-2(a)Justia, 2025 New Jersey Revised Statutes. Checked .
- N.J.S.A. 2A:31-3Justia, 2025 New Jersey Revised Statutes. Checked .
General information, not legal advice. We don't know the facts of your claim. A lawyer can review them, and most injury lawyers offer a free consultation.
What to do next
- Next questionMedical malpractice claims in New Jersey, explainedNew Jersey's affidavit of merit, deadlines and fee cap, with the dates worked out.
- Ready to call a firm?Your first injury lawyer consultationWhat to bring, what to ask, and what the fee agreement must say.
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Questions people ask
Can you sue for a misdiagnosis?
A misdiagnosis can be the basis of a malpractice claim when the care fell below generally accepted professional standards and caused harm. Diagnostic errors are the leading type of paid malpractice claims, the National Academies found.
What is the average medical malpractice settlement?
We couldn't find a public source we can check that reports one. In state court trials in 2005, plaintiffs won 22.7% of malpractice trials, and winners got a median $400,000, the Bureau of Justice Statistics counted.
Can I sue a hospital for malpractice?
An employer, a hospital included, can be legally responsible for an employee's wrongful acts on the job. That rule doesn't reach independent contractors, and each state sets its own tests. In New Jersey, a claim against a public hospital needs written notice within 90 days.
How long do you have to file a birth injury claim in New Jersey?
A child's malpractice claim for injuries at birth must be filed before age 13. A judge reviews any settlement for a child at a hearing.
Do you need an affidavit of merit to sue for malpractice?
In New Jersey, yes: from an appropriate licensed professional, within 60 days after each defendant answers. 28 states had affidavit or certificate of merit rules in the National Conference of State Legislatures' 2021 count.