Medical malpractice lawsuits are subject to more complex procedural requirements than most personal injury cases. One example of these requirements is the affidavit of merit, which is required in many (but not all) states as part of the process of filing a lawsuit. Depending on the state, either an attorney or an expert witness will complete the affidavit. Generally, it will state that an expert in the same medical specialty as the defendant has reviewed your case and believes that the defendant breached the applicable medical standard of care under the circumstances. Sometimes an attorney may complete the affidavit rather than the expert, in which case the attorney will state that they have consulted with an expert and gotten confirmation that the plaintiff’s case has merit.
You do not need to retain the expert who provides your affidavit of merit as your expert at trial. Asserting that your case has merit is not the same thing as providing detailed testimony in a courtroom against a fellow doctor, which some doctors do not want to do. Your lawyer may also feel that they can retain a more persuasive expert later in the process.
If you neglect to file the affidavit of merit with your complaint, you may be able to file it within a certain time afterward without jeopardizing your case. You may need to provide a convincing explanation for why you could not submit it on time. In some states, however, you absolutely must file the affidavit with your complaint to avoid dismissal. Thus, you should try to file them together if at all possible.
The mounting costs of liability insurance and litigation have led the medical profession to lobby for additional procedural hurdles. The purpose of an affidavit of merit is to prevent plaintiffs from filing frivolous lawsuits and reduce the exposure of doctors. Advocates for doctors often assert that medical care will improve if doctors are not acting out of fear of being sued. There have been alleged instances of doctors ordering unnecessary tests or courses of treatment to avoid liability, although it is unclear how often this happens.
Opponents of the affidavit requirement believe that it unfairly restricts access to the courts. In their view, this procedural burden violates the due process and equal protection rights provided by the U.S. Constitution. Specifically limiting the requirement to medical malpractice cases makes an affidavit more controversial because it affects only a certain type of claimant. Some states have responded by expanding the requirement to other types of professional negligence, such as legal malpractice, so that medical malpractice is not singled out. However, challenges to its constitutionality in any civil case continue to be pursued.
