When it comes to pursuing a medical malpractice claim, there are a number of legal procedures that must be followed. While serving a complaint is widely recognized as one critical step, there exists—in many states—a lesser-known requirement: The affidavit of merit.
In this blog post, we’ll shed light on the significance of the affidavit of merit in medical malpractice claims, including what may happen to your case if you fail to file one.
What is an affidavit of merit?
Medical malpractice cases are unusual in that many states require plaintiffs to demonstrate that they have a qualified expert witness to support their allegations of malpractice before they file a lawsuit.
An affidavit of merit (sometimes called a “certificate of merit”) is typically attached to a plaintiff’s complaint in order to meet this requirement.
The affidavit consists of a statement provided by the plaintiff’s expert witness under oath attesting that they have reviewed the facts of the case and believe—to a reasonable degree of certainty—that the defendant’s action deviated from the accepted standard of medical care, resulting in the plaintiff’s injuries or damages.
A typical affidavit of merit in a medical malpractice case includes:
- A statement of the expert witness’s qualifications.
- A statement that the expert witness is familiar with the relevant standard of care.
- A statement that the expert witness has determined that the defendant’s conduct did not meet the appropriate standard of care.
- A statement that the failure caused the plaintiff’s injuries or damages.
Not all jurisdictions have adopted the affidavit of merit requirement. What’s more, the specific rules and regulations surrounding the affidavit, including what information must be included in the affidavit and when it must be filed, varies from jurisdiction to jurisdiction. It’s always a good idea to consult with an attorney in your area to ensure your rights are protected.
What is the purpose of an affidavit of merit?
The roots of the affidavit of merit can be traced back to the 1950s and 1960s when the United States saw a significant rise in medical malpractice lawsuits. This surge of litigation led to concerns about the impact of lawsuits on healthcare costs and the availability of medical services.
To address these concerns, states sought to distinguish between valid claims and baseless allegations. One of the steps taken to accomplish this was to require plaintiffs contemplating a lawsuit to file an affidavit of merit.
To put it simply, requiring plaintiffs to find a medical expert who supports their allegations prior to initiating a lawsuit ensures that only individuals with legitimate grievances have the opportunity to pursue legal action.
Overall, the history of the affidavit of merit reflects an ongoing effort to strike a balance between protecting the rights of individuals who have suffered harm due to professional negligence and preventing the filing of baseless lawsuits that can burden the judicial system and increase costs for defendants.
What if you do not file an affidavit of merit?
The failure to file an affidavit of merit when it’s required can have serious consequences for your lawsuit. The specific consequences vary depending on the jurisdiction. However, here are some potential outcomes:
- Case dismissal: In some jurisdictions, the failure to file an affidavit of merit within the required timeframe can result in the dismissal of your case.
- Extension or stay: In certain instances, the court may grant an extension or stay the proceedings to allow you the opportunity to rectify your omission.
- Weakening of the case: Even if you're allowed to file a complaint without an affidavit of merit, the absence may weaken your overall case.
Not only does every jurisdiction treat affidavits of merit differently, but the laws within jurisdictions are subject to change. For example, in 2023, the Michigan Supreme Court threw out a 20-plus-year-old precedent by finding that an affidavit of merit isn’t needed to pause the statute of limitations.
Sample affidavit of merit
Although the specific requirements for an affidavit of merit vary by jurisdiction, below is a sample to give you a general idea of what the affidavit looks like:
STATE OF [STATE] COUNTY OF [COUNTY]
AFFIDAVIT OF MERIT
I, [Expert's Full Name], being duly sworn, hereby depose and state as follows:
- Background and Qualifications: I am a licensed [Expert's Profession], currently practicing in [State]. I have been actively engaged in the practice of [Expert's Field] for [number of years]. I obtained my degree in [Expert's Field] from [Educational Institution] in [Year]. I am a member in good standing of [Professional Associations], and I maintain relevant certifications and credentials.
- Familiarity with the Case: I have been provided with and have reviewed the relevant medical records, reports, and other documentation pertaining to the case of [Plaintiff's Name] v. [Defendant's Name]. I have also been provided with a detailed description of the events leading to the alleged injury and the subsequent medical treatment.
- Standard of Care: Based on my expertise and experience in [Expert's Field], I am familiar with the accepted standard of care applicable to this case. It is my professional opinion, to a reasonable degree of certainty, that the standard of care expected of a competent [Expert's Profession] in similar circumstances was not met by the defendant.
- Deviation from the Standard of Care: After a careful evaluation of the facts and evidence presented, I have identified specific actions or omissions by the defendant that deviated from the accepted standard of care. These deviations include [describe the specific acts or omissions by the defendant that constitute negligence].
- Causation: It is my professional opinion that the defendant's deviation from the standard of care directly and proximately caused or contributed to the injuries and damages suffered by the plaintiff. I have considered alternative causes and ruled them out as significant factors in the plaintiff's injuries.
- Conclusion: Based on my expertise and the information available to me, it is my professional opinion that the plaintiff's claim, in this case, has merit and should proceed further.
I declare under penalty of perjury under the laws of [State] that the foregoing is true and correct.
[Expert's Full Name]
[Expert's Professional Title]
[Expert's Contact Information]