A measure that would shorten the statute of limitations for malpractice claims against certain licensed professionals, including attorneys, from six years to two years, passed the Assembly Judiciary Committee on Monday in Trenton.

The measure also would limit fee-shifting in such cases.

Under A-4880, malpractice suits against licensed accountants, architects, engineers and land surveyors would also have to be filed within two years, and attorney fees could not be awarded in any action against these professionals except under certain circumstances.

A-4880 was voted out of committee just before noon after a lively debate among both sides as to whether the consumer would ultimately benefit or suffer as a result of such changes.

“This legislation is about fairness,” said Evelyn Padin, president-elect of the New Jersey State Bar Association, after the Assembly Judiciary voted 4-0-2 in favor of the measure. “It will have a direct impact on small business owners like myself. It is the difference between whether we can provide for our families or continue to struggle … This is an important step in leveling the playing field for professionals. The NJSBA will continue to work vigorously in support of seeing this become law.”

The bill now advances to a floor vote in the Assembly.

S-2264, the Senate companion bill, is awaiting a reading in the Senate Judiciary Committee.

Monday marked a break from the past on the controversial proposal. Identical versions of the bill have been proposed in previous legislative sessions, but all failed to gain traction.

Voting in the favor of the bill on Monday were: Assembly Judiciary Commitee Chairwoman and A-4880's primary sponsor, Annette Quijano (D-Union), Vice-chair Carol Murphy (D-Burlington), Assemblyman Gordon Johnson (D-Bergen), and Assemblyman William Spearman (D-Camden).

Assemblywoman Serena DiMaso (R-Monmouth) and Assemblyman Michael Patrick Carroll (R-Morris) were the two abstensions.

“This bill is critically important,” said John E. Keefe Jr., current president of the 18,000-member New Jersey State Bar Association—the first to testify before the committee. “It will improve a broken insurance market, provide a level playing field for licensed professionals, and,of critical importance—and contrary to what you have heard today—it will provide substantial protection and better protection for New Jersey consumers than currently exists.”

Keefe said malpractice insurance has gotten so cost-prohibitive in New Jersey because the state's six-year statute of limitations was longer than neighboring states, including New York, which discourages insurance carriers from doing business in the state. He said of about 25 insurance carriers in New Jersey, only seven were writing and renewing malpractice policies.

“Pricing lawyers out of the insurance market is what really hurts consumers,” he said.

But vigorously countering Keefe's assessment of A-4880's effect was Lynne M. Kizis, president of the New Jersey Association for Justice, the state's principal plaintiffs bar group.

Kizis, a partner at Wilenz, Goldman & Spitzer of Woodbridge, said the bill “tips the scales of justice to the side of the lawyer, the engineer, the architect … the licensed professional and away from the consumers.”

“When an organization defines its position on a piece of legislation, it is defining Itself,” she told the committee. “A-4880 is about giving a legal advantage to licensed professionals, including lawyers, who have committed professional malpractice while representing a consumer who has put their trust in them.”

Malpractice lawsuits against health-care professionals already are governed by a two-year statute of limitations.

Those in favor of A-4880 said it would overturn the Saffer v. Willoughby doctrine from the state Supreme Court's 1996 ruling in that case, which permits the awarding of counsel fees—known as “Saffer fees”—to plaintiffs who are successful in malpractice claims.

A-4880—similar to previous bills before it—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 obtain a fee award.

But plaintiff attorneys claim the provision gives harmed individuals their only chance to become whole by being able to recover legal fees and costs.

“Awarding attorney fees and costs to the victim of professional negligence is not fee shifting,” testified Eric G. Kahn, immediate past president of NJAJ, who appeared alongside Kizis. “Rather, it is a necessary element of a claimant's damages in order to make that victim whole. It is not contrary to the American Rule. The goal should be to protect the consumer, the victim of the professional negligence or malpractice, and not the professional who harmed the consumer—to make that harmed individual whole.”

But Jack Chan, a practicing attorney in Englewood Cliffs, and president of the Asian Pacific American Lawyers Association of New Jersey, testified that owners of small firms simply can't afford malpractice insurance in the present market. Chan said he opened his solo practice five years ago and was among the 90 percent of law firms in New Jersey with five or fewer lawyers.

“Attorneys should not have to decide whether they should pay their malpractice premium or meet payroll for their staff,” Chan told the committee. “They should never have to weigh paying their rent or paying for coverage.”