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

The concept of merit is an important one when pursuing medical malpractice litigation. Merit refers to the plaintiff's basis for pursuing the claim. A case which has merit has a valid basis such that a court could find that the plaintiff's legal rights have been violated based on the claims made in the complaint.

Just because a case is meritorious does not mean that the claims will be sustained, though. The plaintiff has the duty to present sufficient evidence to support the claims, and a defendant has the right to respond to the complaint, which can affect the case. Setting forth meritorious claims in a complaint is the important first step a plaintiff's takes, though, in pursuing a case

Frivolous legal claims--those without merit--are always a concern in the court system, since they waste time and resources. One of the safeguards against frivolous medical claims in Michigan is that plaintiffs are required to include an affidavit of merit along with their complaint.

An affidavit of merit, which must be signed by a health care professional, includes several elements,

  • The standard of practice or care applicable in the case
  • The health care professional's opinion that the standard of practice or care was breached by the health professional or facility receiving notice of the claims
  • The actions that should have been taken or omitted to comply with the standard of practice or care
  • The manner in which the breach of the standard of practice or care proximately caused the alleged injuries

The affidavit of merit must always be signed by a health care professional with specific credentials. We'll continue looking at this issue in our next post.

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