Bar Groups at Odds Over Latest Push to Shorten Malpractice Window
ALM Media
Updated
The New Jersey State Bar Association, its counterparts at the county level and a coalition of other professional organizations are once again urging lawmakers to shorten the filing period for malpractice claims from six to two years.
The state bar is joined by 19 county bar associations and professional groups representing architects, builders, engineers, dentists, opticians, heating and cooling contractors, surveyors, certified public accountants and electrical contractors; along with the American Insurance Association and the New Jersey Civil Justice Institute, a tort reform organization in urging passage of the latest measure.
Standing in their way are plaintiffs lawyers, who largely oppose the change, and a Legislature that's declined to pass numerous previous versions of the bill.
"Summer is a good time to work on these and keep the fires burning," said state bar president Robert Hille. "We're spending the summer doing the outreach because we believe this is a good bill. It puts us on equal footing."
A-1982, sponsored by Assembly Speaker Vincent Prieto, D-Hudson, is pending before the Assembly Judiciary Committee. Prieto filed the bill at the beginning of the current legislative session, but no hearings have been held or scheduled.
Identical versions have been proposed in previous legislative sessions, but all have failed to gain traction. Most recently, in 2011, an identical version did pass through the Assembly Regulation Professions Committee in a 5-1 vote, but then stalled.
Like earlier versions, A-1982 would set a common statute of limitations for malpractice actions for a long list of professionals, including attorneys, at two years the same statute of limitations for personal injury matters.
Malpractice lawsuits against health care professionals already are governed by a two-year statute of limitations.
Additionally, the bill would upend a key provision of the state Supreme Court's 1996 ruling in Saffer v. Willoughby, which permits for the award of counsel fees known as "Saffer fees" to plaintiffs who are successful in malpractice claims. The bill would have malpractice claims governed by the so-called "American Rule," in which all parties generally are responsible for their own legal costs.
The state bar is arguing that the Saffer rule discourages settlement since plaintiffs lawyers would prefer to pursue litigation in an effort to be awarded fees.
The Coalition of Licensed Professionals a lobbying group made up of the bar associations and professionals who, if sued, would face a six-year statute of limitations have sent a letter to the Legislature urging passage of the bill.
The legislation "provides essential stability and predictability to professional malpractice cases for both the consumers and for professionals. It puts all professionals on a level playing field," the coalition said in its letter.
The two-year statute of limitations "removes the uncertainty of litigation costs that comes from claims that languish and puts New Jersey's professionals on the same footing as medical doctors and other health professionals," the coalition said.
The state bar also is arguing that the six-year statute of limitations adversely impacts the ability of lawyers in the state to obtain affordable malpractice insurance.
There are 25 licensed insurance carriers in New Jersey, the organization said, but noted that only five offer malpractice coverage. The bar also said the base rate for coverage for lawyers in New Jersey is 49 percent higher than for lawyers in New York State, and 33 percent higher than for lawyers in Pennsylvania.
"The result is a restrictive insurance market and higher malpractice insurance rates for lawyers most of whom work in solo practices or small firms that form the backbone of their communities and fuel local economies," the bar said in its statement to the Legislature.
Prieto's office did not respond to a request for comment.
The state bar is using the summer recess to lobby legislators, so that A-1982 might meet a different fate than its predecessors.
"There's nothing new or urgent about it, but we built a coalition in an effort to gain momentum," said Hille, of Morristown's McElroy, Deutsch, Mulvaney & Carpenter. His practice focuses in part on insurance liability and professional liability defense.
Hille acknowledged that previous efforts to pass the bill have not been successful. "It certainly hasn't been easy, but you just have to keep at it sometimes," Hille said.
The Opposition
Support for the legislation is hardly unanimous among lawyers in the state.
The New Jersey Association for Justice, whose members represent plaintiffs, is actively opposing the bill, said the association's president, Eric Kahn.
"Our concern is that the bill is putting professional interests over the interests of clients," said Kahn, of Springfield's Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins. "There is no proof that insurance premiums will go lower" if the statute of limitations is reduced, he said. "This system has been working for years."
Kahn said the association is particularly concerned about the language that would abrogate the Saffer rule. If an injured party in a malpractice action would lose part of his or her award because of the need to pay counsel fees, then the plaintiff would not be made whole, he said.
Kahn agreed that the bill puts the association's membership in something of a conflicted position: A longer filing period benefits litigants but means more exposure for lawyers.
"The rights of the client come first," he said. "If that affects our members, so be it. I'm not concerned about the minimal impact on our members."
Bennett Wasserman, the chair of the legal malpractice department at Davis, Saperstein & Salomon, has long opposed the bill and continues to do so.
"I've been battling this bill for eight years now," Wasserman said. "It would be a real backward step for this state.
He added that Hille "has really declared this to be a top priority for his administration. The bar is contacting every member of the Legislature."
"It's a horrible, horrible bill," Wasserman said. "It will increase the number of legal malpractice suits filed, even those that don't have merit, just to make sure they're filed before the deadline. It often takes more than two years to recognize negligence."
