Affidavits of Merit in Medical Malpractice Cases

Affidavits of merit, sometimes referred to as a certificate of merit, in the most general of terms, are affidavits signed by an expert in the field, attesting to the merit or merits of a claim. Depending on the state, affidavits of merit may be required in medical malpractice claims, legal malpractice claims, and other claims involving some sort of professional negligence. This may include cases against architects, accountants, engineers, land surveyors, real estate agents, as well as design professionals.

Affidavits of merit are a product of tort reform efforts. It is believed that requiring a party to file an affidavit of merit, either contemporaneous to or shortly after filing a lawsuit, accomplishes several goals, including:

1. Reducing the number of suits being filed
2. Reducing the amount of money put towards settling claims of questionable value
3. Limiting the types and amounts of liability insurance professionals must carry
4. Limiting the number and types of decisions made not out of professional judgment but rather fear of a potential lawsuit

Because, by and large, affidavits of merit require a professional in the field to opine under oath about a failure to meet a minimum standard of care, it is believed frivolous claims will be reduced, if not eliminated. Affidavits of merit also necessarily limit the extent of claims made to that which can reasonably be proven based on the facts and circumstances of a given case.

Varying State Requirements for an Affidavit of Merit

Timing of Affidavit of Merit

In the United States, 29 states have statutes governing the timing and content of an affidavit of merit in a medical malpractice claim.[1] In some states, the affidavit is filed along with the lawsuit. However, in other states, the affidavit is filed within a certain length of time, following the filing of the suit. Different states have different requirements, of course, but all are based first on a general premise of medical malpractice, including the following foundations:

1. The plaintiff and the medical professional in question had a caregiver/patient relationship
2. There was a violation of the generally accepted standard of care
3. An injury resulted from the deviation of the standard of care
4. The injury resulted in damages, including disability, loss of income, pain, suffering, and hardship, and/or significant past and/or future medical bills

Content of Affidavit of Merit – Physicians

In general, opinions regarding medical malpractice must come from physicians or other medical experts who practice in the relevant field. For example, an orthopedic surgeon probably would not qualify to comment on an oncologist’s selected course of care and treatment for a patient with skin cancer. They are probably, however, qualified to comment on the diagnosis, treatment, and rehabilitation of back pain, arthritic hips, and stiff neck muscles. An affiant must be substantially familiar with the generally accepted standards of care and practice in the field. Many states require the affiant have this experience within a specified period, such as the last three or five years, to qualify to file an affidavit. Some states find teaching students in an accredited health professional school, residency, or clinical research program in the same specialty also qualifies one to file such an affidavit.

Different states have different requirements for affidavits of merit. For example, some states require a simple statement that, after review of the relevant facts, there is a “reasonable and meritorious cause” for filing the action. Other states require a certificate of a qualified expert identifying the departure from the relevant standard of care. Further, the statement must assert that the departure is the “proximate cause” of the alleged injury, and that without the departure, the injury would not have occurred.

Content of Affidavit of Merit – Physicians and Attorneys

In some states, both the lawyer and the expert must sign the affidavit. The lawyer must identify who they plan to call as expert witnesses should the matter go to trial, detail the facts and opinions the expert will testify to, and summarize the grounds for each opinion. In still other states, the plaintiff files a certificate of consultation detailing the attorney’s review of the facts of the case, and their consultation with at least one qualified expert. The attorney represents their belief they have consulted with an expert qualified to provide expert testimony regarding the standard of care, and the negligence, which leads the attorney to believe there is a valid basis for the suit.

Best Practices for Affidavits of Merit

Content of Affidavits

In states requiring an affidavit of merit or certificate of merit, each state details the minimum requirements to meet the standard. While there may, at times, be a strategic reason for being vague or obtuse, in most cases, providing as much detail as possible can result in more efficient resolution, without the need for protracted litigation. Attorneys frequently have the option of including more than the minimum requirements when filing an affidavit of merit. Considerable thought should be given to providing some, or all, of the following in an affidavit of merit:

1. The identification of the expert
2. Their medical license or licenses
3. Their experience, including current practice areas, teaching, supervision of residents, etc
4. Specializations and board certifications
5. A detailed list of all medical records the expert reviewed
6. Lay person’s explanation of the applicable standard of medical care
7. Where the defendant failed to follow the applicable medical standard
8. How the plaintiff was injured
9. An opinion from the expert clearly demonstrating the nexus between the plaintiff’s injury and the failure to follow the standard of care
10. The reasoning of the expert in coming to the decision

The Choice of Experts for Affidavits

While different states have different rules, in many states, the expert asserting medical malpractice in the affidavit of merit does not necessarily have to be the expert who will ultimately testify should the case go to trial. There are pros and cons to both approaches. For example, some experts testify better than others. Some physicians are willing to sign an affidavit of merit, but do not wish to testify in court about another doctor’s failure. Still other times, travel length and witness schedules may make it more cost efficient to call a different witness to testify than filed the affidavit. In every case, lawyers must carefully review the laws of each state when assessing the use of a given expert.

[1] Ariz. Rev. Stat. Ann. §12-2603; Colo. Rev. Stat. §13-20-602; Conn. Gen. Stat. §52-190a; Del. Code Ann. tit. 18, §6853; Fla. Stat. §766.104; Ga. Code §9-11-9.1; Hawaii Rev. Stat. §671-12.5; Ill. Rev. Stat. ch. 735, §5/2-622; Md. Courts & Judicial Proceedings Code Ann. §3-2A-04; Mich. Comp. Laws §600.2912d; Minn. Stat. §145.682; Miss. Code Ann. §11-1-58; Mo. Rev. Stat. §538.225; Nev. Rev. Stat. §41A.071; N.J. Rev. Stat. §2A:53A-27; N.Y. Civil Practice & Rules Law §3012-a; N.D. Cent. Code §28-01-46; Ohio R. Civ. P. 10; Okla. Stat. tit. 12, §19.1; Pa. R. Civ. P. 1042.3; S.C. Code Ann. §15-36-100; Tenn. Code Ann. §29-26-122; Tex. Civil Practices & Remedies Code Ann. §74.351; Utah Code Ann. §78B-3-423; Vt. Stat. Ann. tit. 12, §1042; Va. Code §8.01-20.1; Wash. Rev. Code §7.70.150; W. Va. Code §55-7B-6; Wyo. Stat. §9-2-151.