Affidavit of Merit Example for Medical Malpractice Attorneys

For medical malpractice attorneys operating in jurisdictions that require a certificate or affidavit of merit, the document serves as a procedural cornerstone. It is more than a statement of intent—it is a sworn professional opinion that the plaintiff’s claim is legally and medically sound. Yet despite its importance, many affidavits fail to meet statutory or evidentiary standards due to poor structure, vague language, or unqualified signatories.

To guide practitioners through this crucial phase, the following example demonstrates what a well-constructed affidavit of merit should look like. This sample reflects common statutory requirements found in states like Illinois, New Jersey, and Nevada, and includes best practices for both content and format. While the specifics may vary by jurisdiction, the core components remain broadly applicable to medical malpractice litigation across the United States.

Key Elements Every Affidavit Should Contain

Before reviewing the example, it is important to understand the essential components of a compliant affidavit of merit:

• Expert identification: Full name, specialty, licensure, and professional background
• Case overview: Brief summary of facts reviewed
• Standard of care: Statement of what the appropriate standard was for the provider
• Deviation: How and where the defendant breached that standard
• Causation: Connection between the deviation and the plaintiff’s injury
• Basis for opinion: Records reviewed and reasoning for conclusions
• Oath and signature: Sworn under penalty of perjury or notarized, as required

Sample Affidavit of Merit

STATE OF [Your State]
[County Name] COUNTY

IN THE MATTER OF:
[Plaintiff's Name] vs. [Defendant's Name]

I, [Expert Name], being duly sworn, depose and say:

1. I am a board-certified obstetrician-gynecologist licensed to practice medicine in the State of [Your State]. I have been in active clinical practice for 18 years, and I currently hold hospital privileges at [Hospital Name], where I perform both inpatient and outpatient obstetrical care.
2. I have reviewed the medical records related to the treatment of [Plaintiff's Name] by Dr. [Defendant's Name], including prenatal visit notes, ultrasound reports, labor and delivery records, nursing documentation, and postpartum discharge summaries.
3. Based on my training, education, and experience, I am familiar with the standard of care applicable to obstetricians managing labor and delivery in the circumstances described.
4. It is my opinion, to a reasonable degree of medical certainty, that Dr. [Defendant's Name] deviated from the applicable standard of care by failing to timely recognize signs of fetal distress during labor and by delaying the decision to perform an emergency cesarean section.
5. Specifically, the electronic fetal monitoring strips indicated late decelerations and reduced variability beginning at 16:40 hours, which were not appropriately addressed until after 19:00 hours. Standard obstetric practice dictates timely intervention—typically within 30 minutes of persistent non-reassuring tracings.
6. As a result of this delay, the newborn experienced prolonged hypoxia, leading to a diagnosis of hypoxic-ischemic encephalopathy (HIE) and subsequent developmental delays.
7. In my opinion, the failure to follow standard obstetrical protocols directly caused the newborn’s injuries, which would have been avoidable with timely intervention.
8. My opinion is based on a thorough review of the aforementioned medical records, my knowledge of current clinical standards, and my experience managing similar clinical scenarios.
9. I make this affidavit pursuant to [State Statute Citation], affirming that in my professional opinion, the plaintiff’s claims are meritorious and based on a deviation from the accepted standard of care which caused compensable harm.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 10th day of July, 2025.

[Signature]
[Expert Name]
License No. [########]

Notary Public:
[Seal and Signature if required]

Why This Example Works

This sample affidavit of merit illustrates compliance with both content and format requirements typically found in states with strict affidavit statutes. It includes:

• Expert qualifications and licensure
• Specific references to medical records and clinical facts
• Clear articulation of the standard of care
• Precise identification of the breach and causal link
• A formal oath, date, and signature

These features reduce the risk of dismissal based on procedural or evidentiary grounds and help build early credibility in the litigation process.

Tailoring Affidavits to State Requirements

While this example follows a widely accepted format, attorneys must adapt affidavits to state-specific statutes. For example:

• Nevada requires that the affidavit be filed with the complaint and accompanied by supporting documentation.
• New Jersey allows 60 days after the defendant’s answer but mandates that the affiant practice in the same or similar specialty.
• Texas requires a comprehensive expert report—not merely a one-page affidavit—outlining standard of care, breach, and causation.

Failing to tailor the affidavit to these distinctions may result in exclusion or dismissal.

How Expert Institute Helps Draft Affidavits of Merit

Expert Institute simplifies the affidavit process through a structured, end-to-end workflow:

• Record review: Our medical experts review all relevant records for standard of care and causation issues
• Expert matching: We source experts who meet licensure and specialty requirements in the relevant jurisdiction
• Drafting assistance: Our team collaborates with counsel and the expert to ensure that the affidavit addresses all statutory elements
• Signed and notarized affidavits: Experts provide sworn statements and signatures in a format that satisfies procedural rules

By focusing on precision, clarity, and compliance, our experts ensure your affidavits not only meet state requirements but also strengthen your position from the outset of litigation.

Conclusion

A properly structured affidavit of merit can determine the trajectory of a medical malpractice case. The example above illustrates what courts expect: a clearly reasoned, detailed, and sworn professional opinion connecting breach to injury. Attorneys who draft these affidavits without close attention to legal and medical nuances risk dismissal, regardless of the underlying merit.

Utilizing services like Medical Record Review ensures your affidavits are compliant, credible, and strategically sound—laying a strong foundation for successful litigation.