Medical Experts and Certificate of Merit Requirements: Who Can Sign?

In jurisdictions that require a certificate or affidavit of merit in medical malpractice lawsuits, selecting the right medical expert is more than a matter of strategy—it is a matter of compliance. A certificate of merit often serves as a statutory prerequisite to initiating or maintaining a claim. As such, if the wrong individual signs the document, courts may dismiss the action outright, regardless of its substantive merits.

Attorneys must therefore understand the qualifications required for expert signatories, how those requirements vary by state, and the risks of relying on unqualified or inappropriate professionals. Whether the certificate is signed by the attorney (affirming expert consultation) or by the expert directly (as in hybrid models), the credibility, licensure, and alignment of the expert with the defendant’s specialty are critical to survival at the procedural stage.

Why Expert Qualifications Matter

A certificate of merit exists to confirm that the claim is grounded in a medical expert’s informed opinion, rather than conjecture. Legislatures adopted these requirements to deter frivolous lawsuits and protect professionals from unnecessary litigation. But in doing so, they created an additional layer of procedural scrutiny.

Many states impose strict statutory requirements regarding:

• The field of practice or specialty of the expert
• Whether the expert is actively practicing or teaching
• How recent their clinical experience must be
• Whether the expert holds a current medical license

Failure to meet these criteria—even by an otherwise credentialed physician—can render the certificate invalid.

State-Specific Requirements for Expert Eligibility

Requirements for who can sign or be cited in a certificate of merit vary widely by jurisdiction. Below is a summary of typical statutory standards:

Same Specialty Requirement

In states like New Jersey and Texas, the expert must practice in the same or substantially similar specialty as the defendant. This prevents, for example, a general practitioner from opining on the conduct of a neurosurgeon.

• New Jersey (N.J. Stat. §2A:53A-41): Requires matching board certification if the defendant is board certified.
• Texas (Tex. Civ. Prac. & Rem. Code §74.401): The expert must be practicing in the same field or have related experience at the time of the claim.

Recent Clinical Activity

Some states mandate recent or current clinical experience to ensure the expert is familiar with contemporary standards of care.

• Illinois (735 ILCS 5/2-622): Expert must be practicing or teaching within the last six years.
• Michigan (MCL §600.2169): Requires practice within the same specialty in the year preceding the alleged negligence.

Licensure and Certification

Most jurisdictions require the expert to be licensed in the U.S., and some require board certification if the defendant is board-certified.

• Georgia (O.C.G.A. §24-7-702): The expert must be licensed and actively practicing or teaching in their field.
• Florida (Fla. Stat. §766.102): Board certification is required if the defendant is board-certified in that specialty.

Permissible Roles

In addition to practicing physicians, some jurisdictions allow experts who are:

• Teaching at accredited medical schools
• Supervising clinical residents
• Engaged in clinical research in the relevant field

However, courts may scrutinize whether such roles involve sufficient contact with actual patient care to qualify the expert as “familiar” with current standards.

Who Cannot Sign or Be Cited

Equally important is knowing who is not qualified to sign a certificate or serve as the consulted expert:

• Experts outside the defendant’s specialty, even if they have general knowledge of the issue
• Retired physicians without recent clinical or academic activity
• Individuals with lapsed or suspended licenses
• Physicians who devote most of their time to litigation consulting rather than clinical care

In some cases, courts have also rejected affidavits or certificates from experts who lacked recent experience in U.S.-based medical systems, particularly if the care in question involves system-specific practices or standards.

Most Common Medical Specialties Cited in Affidavit of Merit Filings

In practice, certain medical specialties are more frequently involved in affidavit of merit filings due to the volume and nature of malpractice claims. Based on internal data, the top specialties for which affidavits are most commonly requested include:

• Internal Medicine
• Nursing
• Surgery
• Orthopedics
• OBGYN
• Emergency Medicine
• Cardiology
• Neurosurgery

These high-risk specialties often involve complex procedures, critical time-sensitive decisions, or long-term patient impact—factors that increase the likelihood of malpractice litigation and require highly credentialed experts to evaluate claims.

The Attorney’s Role in Certificate States

In jurisdictions that require the attorney to sign the certificate of merit (e.g., Pennsylvania, California, Ohio), the lawyer must certify that:

1. A qualified expert has been consulted;
2. That expert has concluded that the claim has merit;
3. The attorney reasonably believes the claim is supported by competent opinion.

Even in these states, if the consulted expert does not meet statutory requirements, the certificate may be deemed defective.

Best Practice: Maintain thorough documentation of the expert’s qualifications and consultation. Courts have occasionally required this documentation in camera when challenges arise.

Hybrid Jurisdictions: Both Attorney and Expert Involvement

Several states blend the certificate and affidavit models, requiring both attorney certification and expert-signed statements.

• Illinois: Requires the attorney to file a certificate and attach the expert’s signed written report.
• Colorado: Requires a certificate of review, filed within 60 days, confirming consultation with a qualified expert.
• New York (CPLR §3012-a): Requires attorney certification but allows flexibility in disclosing the consulted expert.

In these states, failure to comply with either portion can lead to dismissal.

How Expert Institute Ensures the Right Expert Signs

Expert Institute’s in-house medical team—comprising 75+ actively practicing physicians, legal nurse consultants, and medical researchers—drives every case review to ensure you receive precise, actionable insights from the right specialist:

• Physician-Led Matching: Our internal medical team identifies the most appropriate specialty based on the clinical issues at hand. You’re paired with a physician reviewer who has direct experience with the diagnoses, procedures, and standards of care involved in your case.
• Jurisdiction-Aware Specialty Alignment: When state-specific requirements are relevant, our team ensures that the reviewing physician aligns with the applicable legal and clinical criteria—supporting the admissibility of your findings and expert-backed strategy.
• Credential Verification & Ongoing Oversight: Each case is handled by physicians who are actively licensed, board-certified, and working in their respective specialties. Our internal team verifies all credentials and remains involved throughout the review process.
• Hands-On Record Review & Consultations: From initial intake to final consultation, your case is managed by our in-house physicians—who surface key facts, evaluate liability, causation, and damages, and are available to clarify complex medical issues that inform case direction.

With a deep bench of qualified experts and a rigorously managed review process, Expert Institute helps you meet legal standards while building a strong clinical foundation for your claim.

Conclusion

Who signs or is cited in a certificate of merit is not a technicality—it is a foundational issue that can determine whether a case is permitted to proceed. Attorneys must ensure that the consulting expert’s credentials, practice history, and specialty align with both the medical facts of the case and the statutory mandates of the forum jurisdiction.

Through careful vetting, legal collaboration, and jurisdictional expertise, Expert Institute provides attorneys with qualified, litigation-ready professionals who can confidently sign certificates or affidavits of merit. This ensures that procedural hurdles are cleared early, allowing counsel to focus on building the strongest possible case.