Evidence-Based. Clearly Delivered.
Evidence-Based. Clearly Delivered.
In some states, an affidavit of merit is a requirement for medical malpractice lawsuits. Its purpose is to have an expert, a physician in this instance, state that the lawsuit has merit. The expert is required to review the case or the nature of the injuries. Then, the expert must opine that the harms the injured person suffered arose because that person received care that did not meet the relevant medical standards. It is a measure enacted to deter frivolous lawsuits.
Courts have been both lax and rigid in demanding these affidavits of merit. For example, in 2016, New Jersey appellate judges upheld the dismissal of a case with prejudice, meaning that the lawsuit could not be filed again. The plaintiff’s expert’s qualifications did not “match up” with the specialties of the defendant-physicians. The plaintiff’s attorneys had obtained an affidavit from a general surgeon to opine as to the standard of care that a pediatric critical care doctor and pediatric surgeon must adhere to. In addition, the expert was not an actively practicing clinician at the time.
For defendant practitioners, if your state requires such an affidavit, review it carefully with your defense counsel as to the expert’s qualifications during the pretrial period. It might be wise to challenge any expert who could be lacking the expertise for the standard of care involved in your case.
The procedural weight of an affidavit of merit cannot be overstated, as it often serves as the first major hurdle in the litigation process. While its primary function is to weed out unsubstantiated claims, it also provides a roadmap for the defense’s early strategy. Because the expert must explicitly link the injury to a breach in the standard of care, any ambiguity in their statement can be leveraged by your legal team. A well-vetted affidavit forces the plaintiff to commit to a specific theory of negligence early on, preventing “moving target” allegations as the discovery phase progresses.
Beyond the initial filing, the continued scrutiny of the plaintiff’s expert is essential for a robust defense. As evidenced by the New Jersey ruling, courts may dismiss cases permanently if the expert’s clinical background does not mirror that of the defendant. If you are a specialist, ensure your counsel verifies that the opposing expert is not only board-certified in the same field but also maintains an active clinical practice. Challenging an expert who lacks the specific nuances of your sub-specialty can effectively dismantle the plaintiff’s case before it ever reaches a jury.
Affidavits of Merit in Medical Malpractice Lawsuits | Medical Malpractice Legal Center | Justia
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