Does Your Medical Malpractice Suit Merit Consideration by the Court?

Medical malpractice lawsuits have some of the highest settlements in the legal industry, with juries awarding $1 million on average. As a result of this and other factors, some states have implemented changes to court procedures related to medical malpractice lawsuits designed to cut down on the number of frivolous lawsuits. One of those changes is requiring plaintiffs to file affidavits of merit before their cases can proceed. Here's what you need to know about this requirement to ensure you get your day in court.

What is an Affidavit of Merit?

Also known as a certificate of merit or offer of proof, the affidavit of merit is essentially a document confirming the plaintiff has cause to take legal action against the defendant. It's usually written up and/or signed by an expert who is in the same field as or has extensive knowledge of the type of medicine the defendant practices. For example, a plaintiff suing an obstetrician for fetal injuries would need to obtain an affidavit of merit from another practicing obstetrician.

The idea is that a medical professional in the same industry would be familiar with the standard of care or practice required of healthcare providers in that field and be able to determine if the defendant's actions fell in line with that standard or deviated in some way. Although the exact requirements vary from state to state, the medical professional who writes the affidavit usually must

• explain what the standard of care was in the plaintiff's situation.
• explain how the defendant deviated from that standard.
• give an opinion as to how that deviation led to the plaintiff's injury.
• provide a list of medical records he or she reviewed to make the determination.
• explain his or her thought process behind his or her conclusion.

The court will review the affidavit of merit to determine if the case should proceed. In some states, this involves a hearing before a judge. In other states, the proceedings may take place in front of a tribunal. Regardless of who does the actual assessment, the case will be allowed to proceed if the court accepts the affidavit of merit.

If the affidavit is rejected, however, a couple of outcomes may result. The lawsuit may be dismissed, in which case the plaintiff can appeal and submit a new or amended affidavit for consideration. Some states allow plaintiffs to continue with their lawsuits, but require them to pay deposits to cover court costs. Massachusetts requires plaintiffs to pay a $6,000 bond to continue suing the defendant if the tribunal rejects the affidavit of merit. If that money is not paid within 30 days of the rejection, the case is dismissed.

Important Considerations

The affidavit of merit typically must be submitted within a certain time period. Some states require plaintiffs to file the affidavits with their lawsuits. Other states let plaintiffs file the affidavit afterwards. New Jersey requires plaintiffs to submit these affidavits within 60 days after the defendant responds to the complaint, for example. In general, failure to provide the affidavit as required will result in the case being dismissed.

States usually also require the doctor signing the affidavit to meet certain minimum requirements, such as that the person

• must be licensed and/or board certified
• must have experience or actually be practicing in the same field as the defendant
• must have teaching experience in the field
• cannot spend a significant amount of time consulting in personal injury lawsuits

The physician can be an expert witness in the plaintiff's case. However, it may be best to get an unaffiliated third party to do the affidavit to avoid accusations of bias. Additionally, it may be easier to get a doctor to sign off on the affidavit if he or she is not required to testify in court. Healthcare providers still have to work with one another, and they may be hesitant to provide damaging testimony about doctors they have to interact with on a daily basis.

If the law in your state requires you to obtain an affidavit of merit, consult with a personal injury lawyer who can help you secure exactly what you need to proceed with your medical malpractice case.