Certificate of Merit Requirement in a Medical Malpractice Case

Plaintiffs may need to file an expert witness's sworn statement on the merits of their claim before they can proceed with the lawsuit.

Medical malpractice cases are costly and time consuming to litigate -- for both the plaintiff and the physician/defendant. In an attempt to reduce the number of medical malpractice cases filed, many states have passed laws requiring plaintiffs' lawyers in medical malpractice cases to submit some proof of medical malpractice on the part of the defendant at the beginning of the case -- before they will be allowed to proceed with the lawsuit. This proof is usually in the form of a report that in some states is called the Certificate of Merit or Affidavit of Merit, and in others, an Offer of Proof. Read on to learn more about this kind of proof.

What is Required?

In general, the Certificate of Merit or offer of proof must contain an opinion from a qualified physician stating that the physician has reviewed the plaintiff's medical records and that, in the physician's opinion, the defendants were more likely than not negligent in treating the plaintiff.

However, every state's procedure is different. Some states do not require the plaintiff to submit a physician's report; they only require that the plaintiff's attorney certify or confirm that he/she contacted or consulted a qualified physician about the case.

While the requirements of the Certificate of Merit vary from state to state, the physician will usually prepare a report that contains some or all of the following information:

  • an identification of all of the medical records reviewed
  • an explanation of the applicable medical standard of care that the defendant should have followed (i.e., what a reasonable physician in the defendant's position should have done)
  • an opinion that the defendant failed to follow the applicable standard of care (i.e., that the defendant was negligent)
  • an opinion that the defendant's negligence was a cause of the plaintiff's injury (this is not always required); and
  • the physician's reasoning.

Some states have strict requirements on who the physician who prepares the Certificate of Merit can be. Others do not. Depending on the state, the physician might be required to have some of the following qualifications:

  • a current medical license, sometimes from the state in which the lawsuit was filed
  • clinical experience (i.e., that the physician actually sees patients), and some states require that the physician be actively practicing at the time of the lawsuit
  • recent medical teaching experience in the same area of medicine as the defendant
  • the physician must specialize or be board-certified in the same area of medicine as the defendant
  • the physician does not spend a substantial amount of time consulting in medical malpractice and/or personal injury litigation.

The Procedure For Beginning A Medical Malpractice Case

Some states require that the plaintiff's attorney file the Certificate of Merit along with the Complaint (i.e., the lawsuit) or even before filing the Complaint. Other states allow the plaintiff to file the Certificate of Merit later, usually within a limited time after filing the Complaint. Some states will schedule a hearing on the adequacy of the Certificate of Merit, while other states will leave it to the defense attorney to raise the issue of whether the Certificate of Merit is inadequate.

If there is going to be a hearing, it is customarily held in front of the judge. However, at least one state, Massachusetts, requires the hearing on the medical malpractice offer of proof to be held in front of a tribunal consisting of the judge, a licensed physician who specializes in the same area of medicine as the defendant, and a licensed attorney. The three members of the tribunal will then jointly issue a decision after the hearing accepting or rejecting the plaintiff's offer of proof.

What Happens If The Certificate Of Merit Is Rejected?

If the Certificate of Merit or offer of proof is rejected, the plaintiff's remedy varies from state to state. In some states, that is the end of the case, and, in order to try to go any further with the case, the plaintiff must amend the Certificate of Merit or appeal.

In other states, the plaintiff can still proceed with the medical malpractice lawsuit, but must post a bond to cover the defendant's court costs.

Still other states allow the plaintiff to proceed with the lawsuit as long as the plaintiff or the plaintiff's attorney certifies that he/she tried, but failed to find a physician. For example, in New York (which only requires a certification by the attorney), if the attorney made three good faith attempts with separate physicians to consult with them on the case, and none of those physicians would agree to consult with the attorney, state law allows the plaintiff to proceed with the lawsuit anyway.

What are the Implications for Patients?

One implication of living in a state with a certificate of merit requirement is that a patient must be particularly cognizant of bringing a timely claim. Every state has a statute of limitations that sets the deadline for filing a medical malpractice lawsuit. Failure to file the lawsuit by the applicable deadline means the right to sue will be lost forever. So it's crucial to obtain the certificate with ample time before the expiration of the statute of limitations. Depending on the doctor and the laws of the state, obtaining a certificate of merit can take several months.

Another implication is that certificates of merit make it more expensive to file medical malpractice lawsuits. A doctor's fee for examining the case file and signing a certificate of merit may be substantial. Often, a patient's attorney will initially pay the doctor's fee. But this can make attorneys more reluctant to accept potential cases. The fee also makes it very costly for patients to sue for medical malpractice without a lawyer.

Finally, another implication is that, fairly early on, the plaintiff will learn a little bit about the likelihood of a successful lawsuit. Having the opinion of a doctor as to the merits of a case should help give both parties a realistic understanding of the value of the case, and could spur settlement talks.

The Certificate of Merit is only one of the pitfalls in medical malpractice cases. If you believe that you were injured by medical malpractice, you should contact a medical malpractice lawyer as soon as possible.

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