A medical malpractice certificate of merit is a document that must be filed in many states in a medical malpractice lawsuit because of the higher standard of care that is involved in these types of cases. A certificate of merit is a document that the attorney for the plaintiff, the individual who is the victim of malpractice, certifies that the attorney has:
- Reviewed the facts surrounding the case;
- Consulted with a medical expert;
- Concluded that the plaintiff’s claim has merit.
Medical malpractice lawsuits involve additional steps that are not required in other categories of personal injury lawsuits. This is because medical malpractice typically involves expert knowledge of physicians, who are, in general, held to a higher duty of care than ordinary individuals.
Some states have instituted this requirement because, in the past, many medical malpractice lawsuits that were filed in court were frivolous. It was believed that requiring a plaintiff’s lawyer to take additional steps required to complete the certificate of merit would help reduce the number of frivolous lawsuits that were being filed claiming that medical malpractice occurred.
These certifications would also help verify that the plaintiff did not falsify any claims regarding the physician who treated them.
What Is Contained in a Certificate of Merit?
Under medical malpractice laws, each state requiring a certificate of merit has its own laws that detail the state’s requirements for its contents. The main purpose of these certificates, however, is that the individual who executes them reasonably believes that the defendant breached the standard of care that is required for their field of medical practice and that breach was the direct cause of the plaintiff’s injuries.
In certain cases, a state may require that the lawyer include a statement that they had a qualified medical expert review the plaintiff’s medical records and that they believe it shows malpractice occurred. It is important to note that the expert who signs the certificate of merit is not required to be the same expert who may testify at the trial.
The states that require a certificate of merit include:
- Arizona;
- Colorado;
- Connecticut;
- Delaware
- Florida;
- Georgia;
- Hawaii;
- Illinois;
- Iowa;
- Kentucky;
- Maryland;
- Michigan;
- Minnesota;
- Mississippi;
- Missouri;
- Nevada;
- New Jersey;
- New York;
- North Dakota;
- Ohio;
- Pennsylvania;
- South Carolina;
- Tennessee;
- Texas;
- Vermont;
- Virginia;
- West Virginia;
- Wyoming.
Who Files the Certificate of Merit?
The individual who is executing the certificate of merit is typically the plaintiff’s medical malpractice lawyer. If a plaintiff filed a complaint without a lawyer, the plaintiff would have to complete and file the certificate of merit.
What Must the Certificate of Merit Cover?
What exactly a certificate of merit has to cover, and the actions required of the plaintiff’s lawyer will differ by state. Generally, a certification of merit must include the following:
- Signatures of both the attorney and the expert;
- The expert has to qualify as an expert in the same medical field in which the defendant health care provider practices;
- For example, if a plaintiff claims malpractice on the part of their treating cardiologist, their expert must also be a cardiologist; and
- The expert’s opinion must be based on their review of the case.
In the State of Connecticut, for example, the lawyer who is filing the medical malpractice lawsuit is required to complete a certificate in which they swear that they made a reasonable inquiry to determine that there are grounds for a good faith belief that there was negligence involved in the treatment of the plaintiff. The lawyer must also swear that their inquiry led them to a good faith belief that there are grounds for a medical malpractice claim against each of the defendants named in the lawsuit.
In support of this claim of good faith, the lawyer is also required to obtain the written opinion of a healthcare provider who is similar to the one named in the lawsuit. This opinion has to be signed by the expert.
There are certain requirements for how the expert healthcare provider can be chosen. The expert’s opinion has to state that there appears to be evidence of medical malpractice.
In addition, their opinion must outline the factual basis for that opinion. The lawyer must attach a copy of the opinion, minus the name and signature of their expert, to their certificate of merit.
In the State of Michigan, a plaintiff’s lawyer has to file an affidavit of merit along with a complaint that alleges medical malpractice that must be signed by a healthcare professional. This professional has to be an individual whom the plaintiff’s lawyer reasonably believes meets the requirements for an expert witness under Michigan law.
The affidavit of merit has to certify that the health care professional reviewed all of the medical records of the victim that were supplied by the plaintiff’s lawyer, as well as state the following:
- The standard of care that applied to the care treatment that was provided to the plaintiff;
- The health care professional’s opinion that the applicable standard care was breached by the treating health care professional or facility;
- The actions that should have been taken or that were omitted by the health care professional or health facility in order not to have breached the applicable standard of practice; and
- The exact way in which the breach of the standard of care was the direct cause of the plaintiff’s injuries alleged in the lawsuit
The plaintiff’s lawyer may request an additional 28 days to file the affidavit. If the defendant fails to allow access to the plaintiff’s medical records within the time period required by law, the affidavit may be filed up to 91 days after the complaint is filed.
Every state that requires a certificate or affidavit of merit has its own set of requirements and timeline within which it must be filed, so it is important to consult with a medical malpractice lawyer regarding the requirements in an individual’s state.
What if a Certificate of Merit Is Not Filed as Required?
Pursuant to medical malpractice laws, a plaintiff and their lawyer are typically required to file the certificate of merit at the same time as the complaint or within a specified time period after filing the complaint.
This time period may be as long as 45 days following the filing of the complaint. In the majority of cases, the plaintiff’s lawyer will file the certificate along with the complaint.
It is important to note that a separate certificate of merit is required for each defendant that is named in the lawsuit. If a certificate of merit is not filed before the deadline, the plaintiff’s attorney may be able to seek an extension.
On the other hand, the court may dismiss the complaint for “failure to file a certificate of merit.” This means the case would be dismissed, and no trial would occur.
Because of this, the certificate of merit is one of the most important documents in a medical malpractice lawsuit in those states in which they are required. If a malpractice case is dismissed based on failure to file a certificate of merit, the fact that a lawsuit was filed would not typically be held against the physician or healthcare provider.
Should I Contact a Lawyer?
If you have suffered an injury based on medical malpractice, it is essential to consult with a personal injury lawyer as soon as you can. Your lawyer will need adequate time to prepare to file your lawsuit, including the certificate or affidavit of merit.
Depending on the state, your lawyer may be required to locate similar experts and obtain their opinions before being able to file your claim. This will likely require access to all of your medical records.
Your lawyer will advise you regarding the possibility of obtaining compensation for your injuries and represent you throughout the process. Your lawyer will also represent you during any negotiations with the defendant or defendants.
