Failure to File Certificate or Affidavit of Merit

In all medical malpractice cases, a lawyer is required to hire an expert witness and to file a Certificate or an Affidavit of Merit. The Certificate or Affidavit of Merit is a statement by a medical doctor (or other physician or suitable expert) which certifies to the fact that the doctor who is being sued committed malpractice and therefore the case has “merit.”

Essentially, the lawyer is securing a preliminary opinion from an expert to assure the court that the case is not a frivolous one but rather a meritorious one. The expert is declaring (certifying or swearing in affidavit form) that he has examined the facts of the alleged malpractice, and that in his or her professional opinion, the doctor being sued has, in fact, deviated from the standard of care. Thus, the case has merit.

Lawyers continuously get into trouble in this area. For one thing, there are strict deadlines for producing the Certificate or Affidavit of Merit. They vary widely from state to state. An attorney must be very careful in knowing the deadline that applies in a particular case, and in a particular state, for producing the Certificate or Affidavit. Failure to file or serve the Certificate or Affidavit on time may result in dismissal of the medical malpractice case.

For example, Florida requires exchange of medical opinions prior to commencement of a lawsuit, at the time the lawyer serves his Notice of Intent to Initiate a Medical Malpractice Lawsuit. In Pennsylvania, by contrast, a “Certificate of Merit” must be filed within 60 days of the filing of the Complaint. In New Jersey, an “Affidavit of Merit” must be provided to each Defendant within 60 days following date of filing of the Defendant’s Answer to the Complaint.  The deadlines and details in each state’s statutes are precise, and they require precise adherence.

Moreover, it is important to retain specific experts to render to specific opinions. A general practitioner cannot provide an expert opinion as to whether an oncologist or a neurosurgeon committed malpractice. The expert’s specialty must match the specialty of the doctor being sued.

Attorneys who fail to provide timely Certificates or Affidavits of Merit, or who submit defective Certificates or Affidavits signed by inappropriate “experts,” may find that they have imperiled their clients’ cases and led to the dismissal of those cases. In such cases, the clients may be entitled to damages for legal malpractice.

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