The Affidavit of Merit in Medical Malpractice Lawsuits

If you’re filing a medical malpractice lawsuit, you may need to file this key document alongside the initial complaint.

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If you're thinking about filing a medical malpractice lawsuit, it's important to know that about half of the states in the U.S. have a law in place that requires medical malpractice plaintiffs to file an affidavit along with their lawsuit. This affidavit typically needs to be a sworn statement in which an attorney or an expert medical witness states that your medical malpractice claim meets certain threshold requirements in terms of the defendant's alleged wrongdoing and the strength of your allegations. Read on to learn more.

What is Tort Reform?

A number of organizations and individuals feel that there is too much litigation in America. More specifically, the concerns are that too many lawsuits are being being filed, too much money is being paid to settle questionable claims, the cost of different kinds of liability insurance is becoming prohibitive, and too many decisions are being made out of fear over facing a potential lawsuit.

Accordingly, several states have enacted “tort reform” laws. The purpose of these laws depends on who you ask. But one purpose is to reduce the number of frivolous lawsuits. Another is to reduce outrageous jury awards by limiting the amount of damages that successful litigants can recover. There is much debate over the constitutionality and effectiveness of tort reform laws. But the medical malpractice "Affidavit of Merit" or "Certificate of Merit" requirement is a byproduct of tort reform laws. They are a sort of procedural hoop for a prospective medical malpractice plaintiff to jump through. Above and beyond simply filing a complaint, the requirement of a sworn statement is meant to weed out frivolous claims before they make it into the court system.

What Must the Affidavit of Merit Cover?

The specific language requirements of the affidavit vary from state to state. But generally speaking, the affidavit must state three things:

  • the expert signing the affidavit qualifies as an expert in the same medical field in which the defendant health care provider practices
  • the expert has reviewed your case, and
  • the expert is of the opinion that your case has merit -- meaning that the defendant's conduct fell short of the appropriate medical standard of care under the circumstances.

The Expert Who Signs the Affidavit Need Not Be Your Testifying Expert

It is important to note that the person who signs your affidavit of merit need not also act as your testifying expert if your medical malpractice case makes it to trial.

There may be a number of reasons for not using the same expert at both of these key stages of the case. Oftentimes, health care professionals in the same region feel uncomfortable testifying against one of their colleagues. However, they may feel comfortable simply stating their belief that your case has merit.

Another reason you may use a different expert to testify is your lawyer may determine the expert who signed your affidavit will (for one reason or another) not make an effective testifying witness.

Also, remember that the person who swears to the contents of the affidavit (and signs it under oath) may actually be your attorney, not an expert witness. Different states have different requirements for the affidavit. 

Learn more about The Role of an Expert Medical Witness in a Medical Malpractice Case.

What If You Do Not File an Affidavit of Merit?

A number of states let you file the affidavit within a certain amount of time (such as 90 days) after the initial complaint has been filed. If your state requires that an affidavit of merit be filed alongside the medical malpractice complaint, your lawsuit could be dismissed if you do not comply with that requirement.

Depending on the court, you may receive additional time to secure an affidavit after filing your lawsuit -- or to show why you couldn't obtain the affidvavit -- but your best course of action is to comply with the rules and file your affidavit at the same time as you file your lawsuit.

Constitutional Arguments Against the Affidavit of Merit Requirement

There is an often heated debate about the constitutionality of the affidavit of merit requirement in medical malpractice cases, or in any kind of civil lawsuit for that matter.

Those opposed to the requirement argue it violates due process and equal protection rights afforded by the U.S. Constitution. In other words, it unconstitutionally deprives individuals of access to the courts.

Some state legislatures have attempted to get around this argument by making the requirement for an affidavit of merit more generalized. Rather than limit the requirement to medical malpractice lawsuits, the legislatures make it a requirement for all lawsuits involving allegations of professional negligence claims -- meaning cases against lawyers, accountants, architects, and others.

To find out more about the affidavit of merit requirement and other procedural hoops you may need to jump through as a medical malpractice plaintiff, you may want to contact a local attorney who specializes in medical malpractice cases.

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