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.

By , Attorney · Cooley Law School
Updated by David Goguen, J.D. · University of San Francisco School of Law

If you're thinking about filing a medical malpractice lawsuit, it's important to know that about half of U.S. states require injured patients to file an "affidavit of merit" or "certificate of merit" in court, alongside the usual documents that start a lawsuit.

What Is a Certificate of Merit or Affidavit of Merit?

The requirements vary from state to state, but this document is typically a sworn statement in which an expert medical witness declares that they've reviewed the injured patient's medical records and other evidence, and it's their opinion that there's sufficient evidence that:

  • the defendant health care provider failed to treat the patient in accordance with the appropriate medical standard of care, and
  • the patient was harmed as a result of that failure.

Basically, a qualified medical expert must declare, under oath, that the injured patient's lawsuit against the health care provider has "merit."

What's the basis for this extra procedural hoop in medical malpractice lawsuits? Skyrocketing costs of medical malpractice insurance is one factor, as are concerns that health care providers are making decisions out of fear over facing a potential lawsuit. So, the hope here is that filing requirements like these will reduce the number of frivolous lawsuits being filed in court against doctors and other health care providers.

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

It's important to note that the person who signs your affidavit of merit doesn't need to also act as a testifying expert in your case, 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 be okay with 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 Don't 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 don't comply with the 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 affidavit—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 longstanding 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 injured patients of access to the courts by creating an extra procedural hoop for them to to jump through, compared with, for example, someone filing a personal injury lawsuit over a car accident (where no affidavit of merit or other additional filing is required).

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.

Getting Help With a Medical Malpractice Lawsuit

The affidavit of merit requirement is just one procedural complexity in medical malpractice lawsuits. Other states have placed different pre-lawsuit prerequisites in the path of injured patients. And once all these filing requirements are met, the challenge of building your best case against the defendant health care provider must begin in earnest.

Medical malpractice cases are notoriously tough to win. They require careful analysis of medical evidence and expert presentation of evidence. There's no substitute for a lawyer's experience and willingness to battle it out against health care providers and their insurers. Learn more about the benefits of getting a medical malpractice lawyer's help.

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