What is an affidavit of merit and why does it matter in med mal litigation? P.2

In our last post, we began looking at what exactly an affidavit of merit is in the context of medical malpractice litigation. As we pointed out last time, an affidavit of merit is a document to be filed with the court which establishes the merits of the case. To that end, an affidavit provides the basic allegations establishing the elements of the medical malpractice case. Getting the affidavit right is one of the first steps to proceeding with a successful medical malpractice case. The aim is to assure the court that the claim is not frivolous.

An affidavit of merit, significantly, must be signed by a health professional who has reviewed all the medical records provided by the plaintiff’s attorney related to the allegations. The signature represents that health professional’s opinion that there is an adequate medical basis for the legal claims the plaintiff is making. 

Not just any health professional can qualify to sign off on an affidavit of merit, but only a health professional reasonably believed to meet the requirements for an expert witness.

For one thing, the health professional must specialize in the same specialty as the accused medical professional, whether as a board certified specialist or not. Also, the health professional, during the year preceding the actions underlying the allegations, must also have devoted a majority of his or her professional time in the same health profession and specialty as the accused physician, or to the instruction of students in the same health profession and specialty. If the accused health professional is a general practitioner, the health professional offered to sign the affidavit of merit must have the above level of experience in clinical practice or instruction of students in the same health profession.

Selecting a qualified individual to sign an affidavit of merit, or to serve as an expert witness, is an important aspect of building a strong medical malpractice case. Working with an experienced medical malpractice attorney is critical to ensuring not only that a meritorious case is filed, but also that the patient has the best possible representation in the case.  

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