Malpractice Consult: Affidavits of merit and why they matter

Amanda Wager, Esq

To reduce the number of medical malpractice lawsuits, more than half of US states have enacted laws that require a plaintiff to file an affidavit of merit, sometimes called a certificate of merit, showing a claim’s validity before the case can move forward. The underlying goal of implementing such laws was to reduce the financial burden that medical malpractice claims impose on the health care industry.

What are affidavits of merit?

An affidavit of merit is a sworn statement by a qualified expert affirming that the plaintiff has a legitimate claim. Each state has its own requirements as to what must be included in the affidavit. Generally speaking, the affiant must be familiar with the standard of care for the defendant, have reviewed the relevant facts of the case, and be able to opine that the defendant’s conduct fell short of the appropriate medical standard of care. In other words, a qualified expert must be able to attest to the merits of the claim for each medical provider named as a defendant.

Additionally, the expert must have an adequate foundation to testify to the standard of care applied to each defendant. For example, in most cases a nurse practitioner cannot file an affidavit opining that a doctor’s breach caused the plaintiff’s injury. Similarly, a chiropractor cannot opine against an emergency department surgeon, unless the chiropractor can show they have a background, education, training, and practice similar to those of an emergency department surgeon. Some courts have held that the affidavit must specifically identify which defendant or defendants breached the standard of care.

How does this affect medical providers?

Outside of the context of a lawsuit, requiring affidavits of merit may not appear to have an impact on the day-to-day lives of medical professionals. However, when states enacted this requirement, legislators specifically had day-to-day effects in mind.

Affidavits of merit are a product of tort reform efforts; in other words, efforts to reduce the amount of litigation in the United States. The underlying policy was to force prospective plaintiffs to substantiate any potential medical claims by showing that there was a true issue of liability before filing. The primary goal was to weed out frivolous medical malpractice claims. Further, states wanted to:

• reduce the amount of settlement money paid toward questionable claims
• limit decisions based upon fear of a potential lawsuit instead of professional judgment
• limit the types, amount, and cost of liability insurance

Therefore, the idea was that this requirement would cause medical malpractice insurance premiums to decrease because insurance companies would not have to waste money defending meritless claims. Additionally, it was hoped the requirement would enable health care providers to provide medical care and treatment based solely on their professional judgment, which would in turn improve health care quality.

Have affidavits of merit shown their merit?

Since gaining popularity, the affidavit of merit has stirred debate. Practically speaking, opponents argue that the requirement has not produced the desired goals. Specifically, they argue that when some courts apply their state’s law, frivolous claims are still allowed to proceed, resulting in more litigation expenses. Additionally, opponents argue that there is little evidence that medical malpractice claims have much effect on insurance premiums.

In many cases the affidavit is composed of conclusory statements that do not identify the specific acts of malpractice or provide an explanation of the basis of the opinion. Often the courts in many states are lenient in demanding that the requirement be fully honored; furthermore, the requirement adds an extra step in the litigation process. This inevitably means that there are more issues to dispute, which can potentially draw out the process and therefore make the litigation more expensive. Many cases have had to go through the appeals process solely to determine when an expert is needed and who qualifies as an expert.

Still, the amount of medical malpractice cases has decreased since states began enacting this reform measure. As state courts continue to interpret their own state’s requirements, legislators will have to continue to analyze whether they need to enact updates to meet their goals in improving the health care system more effectively.