Medical malpractice lawsuits involve steps that are not required in 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 people.

In many states, due to the higher standards of care involved, medical malpractice lawsuits must be accompanied by the filing of a certificate of merit. This is a document in which the attorney for the plaintiff, the person 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.

Some states have instituted this requirement because they believe that in the past, many of the medical malpractice lawsuits filed in courts were frivolous. It was believed that requiring the plaintiff’s attorney to to take the steps required for completing the certificate of merit would reduce the number of frivolous lawsuits claiming medical malpractice. They may 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 that requires a certificate of merit has its own law detailing the state’s requirements for its contents. However, the main point in all certificates of merit is that the person executing the certificate reasonably believes that the defendant breached standards of care required for their field of medical practice and that the breach was a direct cause of injury to the plaintiff. This is also an essential element of proof for negligence, on which most medical malpractice claims are based.

The person executing the certificate of merit is usually the plaintiff’s medical malpractice lawyer. If a plaintiff were to file a complaint without an attorney, then the plaintiff would have to complete and file the certificate of merit.

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 and believe that they show malpractice. Note that the expert signing the certificate of merit does not need to be the same expert who might testify at a trial of the lawsuit

The states that require a certificate of merit are as follows:

  • 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.

What Must the Certificate of Merit Cover?

The exact contents of the certificate and the actions it requires of the plaintiff’s attorney differ from state to state. But among the requirements in some states, the certification of merit must include the following:

  • Both the attorney and the expert must sign the certificate;
  • The expert must qualify as an expert in the same medical field in which the defendant healthcare provider practices. So, for example, if the plaintiff claims malpractice on the part of their treating cardiologist, their expert must be a cardiologist;;
  • The expert’s opinion must be based on a review of the case.

For example, in Connecticut, the attorney filing the medical malpractice lawsuit must complete a certificate in which the attorney swears that they made a reasonable inquiry to determine that there are grounds for a good faith belief that there was negligence in the treatment of the plaintiff. The attorney must swear that their inquiry led them to a good faith belief that there are grounds for a claim of malpractice against each of the health care defendants named in the lawsuit.

Then, in support of their claim of good faith, the attorney has to obtain the opinion, in writing, of a health care provider who is similar to the provider named in the lawsuit. The opinion must be signed by the expert. There are requirements for how this expert health care provider can be chosen. The expert’s opinion must state that there appears to be evidence of medical malpractice and further, it must detail the factual basis for their opinion. The attorney must attach a copy of the opinion, minus the name and signature of their expert, to their certificate of merit.

In Michigan, the plaintiff’s attorney must file an affidavit of merit with a complaint alleging malpractice. The affidavit has to be signed by a health care professional. The health care professional must be a person who is reasonably believed by the plaintiff’s attorney to meet the requirements for an expert witness under Michigan law.

The affidavit of merit must certify that the health care professional has reviewed all medical records of the victim supplied by the plaintiff’s attorney. In addition, it must state the following:

  • The standard of care that applied to the treatment or care provided to the plaintiff in the case;
  • The health care professional’s opinion that the applicable standard care was breached by the 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;
  • The exact manner in which the breach of the standard of care was the direct cause of the injury alleged in the lawsuit

The plaintiff’s attorney can seek an additional 28 days in which to file the affidavit. If the defendant in the action fails to allow access to the necessary medical records within the time period required by law, the affidavit may be filed up to 91 days after filing of the complaint.

Each of the states that requires a certificate or affidavit of merit has its own set of requirements and timeline within which it must be filed.

What If a Certificate of Merit Is Not Filed as Required?

The plaintiff and their attorney are usually either required to file the certificate at the same time as the complaint or is given a period of time after filing the complaint in which to file the certificate. The time period for filing the certificate may be as much as 45 days after the complaint has been officially filed with the court. In most cases, the plaintiff’s attorney will simply file the certificate of merit when they file the complaint for medical malpractice. A separate certificate of merit is required for each defendant accused in the lawsuit.

If the certificate of merit is not filed before the deadline, the law may allow the plaintiff’s attorney to seek an extension of time to file. Or, the law may allow a judge to dismiss the complaint for “failure to file a certificate of merit”. That is, the court would not hear the case on its merits and hold a trial. Rather, the case would be dismissed. So, the certificate of merit is one of the most important documents in medical malpractice lawsuits in states in which it is required.

If a case is dismissed for failure to file a certificate of merit, the fact that a lawsuit was filed usually would not be held against the physician or health care provider.

Should I Contact a Lawyer?

Medical malpractice claims are subject to many requirements under the laws of some states and even under federal law in some cases. In the states identified above, In order to file a medical malpractice claim, you will also need to file a certificate or affidavit of merit. In some states, this would mean that you must hire an expert to provide an opinion on the malpractice of your health care providers. It may necessitate that all of your medical records be obtained and provided to your expert.

So, you really need to consult a personal injury lawyer to assist you with the certificate of merit, so your case may proceed. Your attorney will also provide you with valuable advice and representation during the lawsuit.