Medical malpractice claims involve a very different level of proof than other types of personal injury lawsuits. This is because medical malpractice often involves the expert knowledge of physicians, who are generally held to higher standards of care than ordinary persons
Due to the higher standards of care involved, medical malpractice claims must be accompanied by the filing of a Certificate of Merit. This is a document certifying that the plaintiff’s attorney has:
- Reviewed the facts surrounding the case
- Consulted with a medical expert (besides the one being sued)
- Concluded that the plaintiff’s claim has merits
Thus, certificates of merit help to reduce the number of frivolous lawsuits filed in connection with medical malpractice. They also help to verify that the plaintiff has not falsified any claims regarding the physician who treated them.
What Is Contained in a Certificate of Merit?
Each state will have different requirements for the contents of a Certificate of Merit. However, the essential point in all certificates of merit is: that the person executing the certificate believes with reasonable certainty that the defendant disregarded the acceptable standards of care required for their field of medical practice.
In other words, the certificate of merit alleges that the physician breached their duty of care to the injured plaintiff. This is also an essential element of proof for negligence, which most medical malpractice claims are based on.
The person executing the certificate of merit is usually the plaintiff’s medical malpractice lawyer. In some cases the state may require the attorney to include a statement that both they and a qualified medical expert have reviewed the plaintiff’s medical records for accuracy.
Note that the expert signing the certificate of merit does not need to be the testifying expert.
What Must the Certificate of Merit Cover?
The certification of merit must include the following:
- The expert must sign the certificate
- The expert must qualify as an expert in the same medical field in which the defendant health provider practices
- The expert must review the case before giving the opinion
- The expert’s opinion must be in regards of the opinion similar experts within that field would provide in similar circumstances
What If a Certificate of Merit Is Not Filed as Required?
The plaintiff and their attorney usually have a certain time to file the certificate of merit. This is usually up to 45 days after the legal claim has been officially filed with the court. In most cases, the plaintiff’s attorney will simply file the certificate of merit along with the other court documents. A certificate of merit is required for each defendant accused in the lawsuit (for example, if more than one physician is being sued).
If the certificate of merit is not filed before the deadline, the case can be dismissed for “failure to file a certificate of merit”. That is, the court won’t even hear the arguments of the plaintiff, but will instead dismiss the case from the very beginning. Thus, the certificate of merit is one of the most important documents in medical malpractice claims.
If a case is dismissed for failure to file a certificate of merit, the fact that a lawsuit was filed usually won’t be held against the physician or health care provider.
Should I Contact a Lawyer?
Medical malpractice claims are subject to many requirements under state and federal laws. In order to file a medical malpractice claim, you will also need to file a certificate of merit. So, you will want to contact a personal injury lawyer to assist you with the certificate of merit, so your case won’t be dismissed. Your attorney will also provide you with valuable advice and representation during the lawsuit.