Certificates of Merit Statutes in Medical Malpractice Litigation
By Madeleine B. Loeffler, with research by Julia Giordano and Emily Puckett
It is a common rule of the practice of law that certain cases require specific types of proof. Medical negligence cases, for instance, require that a party present a medical professional to provide evidence of the applicable standard of care at issue in a case, whether a healthcare provider breached that standard of care, and whether that breach resulted in a claimant’s injuries. Because medical knowledge is unique to the people that practice in medical fields, it is easy to see how a layman plaintiff and an attorney could file a seemingly meritorious medical negligence lawsuit that lacks merit. In all fairness, many plaintiffs and their attorneys do not have medical training, so why should they be expected to know what qualifies as a good case?
Bottom Line:
“This lack of (medical) knowledge can and has created an issue of attorneys filing frivolous medical malpractice claims against medical professionals…Knowing who can certify a COM, when it must be filed, what it must contain, whether the defendant must file a COM of his own, and the plaintiff’s potential consequences for noncompliance are only a few areas a defense attorney needs to be familiar with when approaching the beginning of a medical malpractice claim.”
Unfortunately, this lack of knowledge can and has created an issue of attorneys filing frivolous medical malpractice claims against medical professionals. For attorneys defending medical malpractice cases, there is good news: More than half of our states have taken steps to limit frivolous suits against medical professionals by enacting “certificate of merit” statutes. These statutes go by other names such as “affidavit of merit,” “certificate of good faith,” or simply “certification” statutes; however, for purposes of this article I will refer to these statutes as “COM statutes”, and I will refer to the requisite affidavit or certification as a “COM.” COM statutes require formal certification by either a medical professional or an attorney that the claims asserted against a medical professional have a supportable basis in both law and fact. However, as is often the case with good news, it comes with some bad news: Not all these statutes are well tailored to actually weed out frivolous claims.
Currently, 26 states have COM statutes in place that implement procedural safeguards against frivolous medical malpractice claims. Other states provide for medical review panels, which also attempt to stymie frivolous medical malpractice lawsuits. These medical review panels function differently than COM statutes, and for that reason this article will only briefly touch upon them and instead focus primarily on COM statutes. This article will provide a summary of those COM statues, address the efficacy of those statutes, discuss the timing requirements of such statutes, address the potential challenges these statutes pose in practice, and exceptions to the requirements of submitting such a certification.
For a brief overview, COM statutes typically require that before initiating a lawsuit against a physician, healthcare entity, or other healthcare professional, a plaintiff must consult with an independent expert, usually in the same medical specialty as the healthcare defendant, and obtain a certification that the expert believes the defendant breached the applicable standard of care, and that that breach of the standard of care proximately caused the plaintiff’s injuries. In other words, the plaintiff must obtain an opinion from a third-party expert that they have a factually and legally supportable claim. The plaintiff must then in some form or fashion (depending on your jurisdiction—more on that later) certify to the defendant that she has independent support for her claim. This serves to weed out frivolous claims because, in theory, truly baseless claims would not be able to find expert support. It is important to note at this point that these statutes function differently than expert discovery rules. These COMs are filed at the outset of litigation, or shortly thereafter, whereas expert disclosures are not made until well into the discovery phase of litigation.
Read the full article here.
This article was originally published in the September 2023 issue of For the Defense, the magazine of the Kentucky Defense Counsel.
