Affidavits or Certificates of Merit in Birth Injury Lawsuits
Like other medical malpractice cases, birth injury lawsuits involve distinctive rules that do not apply to ordinary personal injury cases. One of these rules is the requirement to file an affidavit or certificate of merit. Many states have imposed this requirement to prevent frivolous medical malpractice cases. Advocates for the requirement note that frivolous cases raise the costs of malpractice insurance, affecting health care costs for everyone. Affidavits of merit may encourage settlements by providing an early indication of the strength and value of a claim. However, the requirement increases the cost of filing a birth injury lawsuit. It also adds a layer of complexity to these cases, providing another reason to hire an attorney.
An affidavit of merit essentially provides an opinion by a doctor who is familiar with the defendant’s field and has reviewed the medical records supporting the litigation. The doctor will state that they believe that medical malpractice likely occurred.
Sometimes a certificate from an attorney also can meet the affidavit requirement. The attorney would need to verify that they discussed the case with a doctor knowledgeable in the field, who believed that medical malpractice occurred.
Completing an Affidavit of Merit
A doctor who provides an affidavit of merit may need to state certain opinions that generally track the elements of a medical malpractice claim. Among other things, a doctor may need to describe the professional standard of care that governed the defendant’s conduct under the circumstances. This consists of the practices that a competent physician in the defendant’s field would have followed when treating a similar patient. The doctor also may need to state that the defendant violated this standard of care and caused harm to the child as a result. They must provide support for their opinions and identify the specific medical records that form the basis for them. Requirements for affidavits of merit vary by state, though.
In some states, a doctor who submits an affidavit of merit may need to be actively practicing medicine or have recent teaching experience in the defendant’s field. They may need to be board-certified in the field. Some states require that the doctor hold an active medical license issued by the state where the plaintiff filed the claim. They may not be allowed to provide an affidavit if they spend more than a certain percentage of their time assisting medical malpractice plaintiffs.
Submitting an Affidavit of Merit
Often, a plaintiff bringing a birth injury lawsuit must submit the affidavit of merit with the complaint. This is the document that outlines the plaintiff’s claims and formally starts the litigation. Even if the plaintiff does not need to submit these documents together, procedural rules usually require them to submit the affidavit of merit soon after the complaint has been filed. The defendant may challenge an affidavit of merit, and some states provide for an automatic hearing on whether it meets the requirements.
If the affidavit of merit does not meet the requirements under state law, the court may dismiss the case. However, the plaintiff may be allowed to revive the case by submitting an amended affidavit of merit. They also may be able to appeal the decision rejecting the affidavit of merit. Some states allow a plaintiff to keep the case alive after the affidavit is rejected if they post a bond for the court costs of the defendant. Furthermore, a case may proceed in some states if the plaintiff or their attorney made certain good-faith attempts to find a doctor to provide an affidavit of merit, but no doctor agreed to consult with them.
Statutes of Limitations
Getting an affidavit of merit may take time, so a plaintiff or their attorney should get started on this process well before the statute of limitations expires. If a claim is not filed within the statute of limitations, a family likely will lose their right to compensation.