Affidavits of Merit in Medical Malpractice Lawsuits
Medical malpractice lawsuits, in which a patient claims a doctor's negligence caused them harm, can be complex. Many states require a document called an affidavit of merit early in the process. This document helps ensure that lawsuits are based on real evidence of potential negligence, rather than just speculation.
What Is an Affidavit of Merit?
An affidavit of merit is a sworn statement, usually signed by a medical expert. This expert reviews the patient's medical records and states, under oath, that the doctor likely did something wrong based on accepted medical standards. For example, if an oncologist failed to order certain tests, an affidavit of merit from another oncologist could state that a competent oncologist would have ordered those tests under the circumstances. This statement is often required when the lawsuit is first filed.
Why Are Affidavits of Merit Required?
State legislatures created the affidavit of merit requirement to reduce the number of frivolous medical malpractice lawsuits. The goal is to ensure that lawsuits have a legitimate basis before they proceed through the court system. By requiring an expert to review the case early in the process, it helps filter out claims that lack sufficient evidence of negligence. This can also potentially reduce the costs associated with defending against unwarranted lawsuits.
When Must the Affidavit Be Filed?
The deadline for filing an affidavit of merit varies by state. Some states require it to be filed at the same time as the initial complaint that starts the lawsuit. Other states allow a grace period, giving the plaintiff a certain number of days or weeks after filing the complaint to submit the affidavit. Failing to meet the deadline can have serious consequences. In some states, the case can be dismissed, sometimes with prejudice (meaning it cannot be refiled). Other states may offer some flexibility, allowing for extensions under specific circumstances.
Who Can Be an Expert for the Affidavit?
The expert who signs the affidavit of merit is typically a medical professional with expertise in the same field as the doctor being sued. For example, if the lawsuit involves a cardiologist, the expert signing the affidavit would likely be another cardiologist. While the affidavit expert must be qualified to assess the case, they may not be the same expert who eventually testifies at trial. The expert who testifies at trial might be chosen for their ability to clearly explain complex medical concepts to a jury. The process of finding a qualified expert often involves sharing the patient's medical records and treatment history with potential experts to determine if there is a basis for a claim of negligence.
State-by-State Differences
The rules surrounding affidavits of merit are not uniform across all states. Some states only require them in medical malpractice cases, while others extend the requirement to other professional negligence claims, such as legal malpractice. As mentioned earlier, states also differ in their handling of missed deadlines. For example, one state might dismiss a case immediately if the affidavit is late, while another state might allow a short extension. It's important to understand the specific rules in your state.
