Medical malpractice cases are based on the seemingly simple premise of holding a doctor or other healthcare provider responsible for a preventable mistake that caused severe harm to a patient or other person relying on a reasonable standard of care. However, demonstrating that negligence actually occurred often involves a complex analysis by an expert who understands what should have been done in a specific situation and how the level of care provided deviated from the established standard. In order to prevent medical malpractice cases from being filed when there has not been a comprehensive review of the facts and a determination that there was negligence in a particular situation, many states require a Certificate of Merit or other affirmation as to the legal merit of the case to be filed along with the initial complaint or shortly after the case has been commenced.
A qualified expert in a medical malpractice case often is a physician with training and experience in the area of medicine in which the malpractice occurred. The expert’s role is to review all of the medical records of the person who suffered as a result of the alleged malpractice, as well as examine him or her, if possible, and form an opinion on the likelihood of negligence based on an apparent deviation from the medical standard of care. The expert will be called as a witness if the case goes to trial, but also completes and certifies a statement about the merits of the case to be submitted with the initial filing in many jurisdictions. It does differ between the states and there are jurisdictions where a medical malpractice case may be commenced on the certification of the filing attorney that there is justification for the legal action based upon consultation with a qualified medical expert.
Completing the Offer of Proof
When there is a requirement for a Certificate of Merit or some other offer of proof, it usually will contain the following:
- A summary of the various medical records that were reviewed by the expert in forming his or her opinion;
- A statement about the medical standard of care that the expert believes is applicable to the case, which is the standard that establishes what a prudent and competent doctor (or other healthcare provider) with similar education, training, and experience would have done under the same or similar conditions;
- An opinion about how the medical professional deviated from the applicable standard of care in providing the care or treatment that resulted in the harm suffered by the plaintiff;
- An assertion that the negligence of the doctor or medical professional was the direct and proximate cause of the harm suffered by the plaintiff; and
- An explanation about how the expert reached the determinations that he did.
Depending on the state in which the case is being brought, there may be specific restrictions on the type of person who may qualify as an expert witness capable of submitting a Certificate of Merit. These requirements may include a valid medical license, actual time spent in the practice of medicine, experience as an instructor in the field of medicine, specialization in the relevant field, and limitations on the percentage of professional time spent acting as an expert witness. In other words, the doctor must have relevant experience and not act as a professional consultant in medical malpractice cases.
Moving Forward with the Case
After the Certificate of Merit has been filed, there may be a hearing to determine whether or not it satisfies the requirements of the court. This hearing may be held before a judge or a special tribunal depending on the jurisdiction. In some states, there only is a hearing if the Certificate of Merit is challenged by an attorney for the defendant(s). A determination that the Certificate of Merit is insufficient may result in a dismissal of the case or leave to re-submit an amended Certificate to address perceived problems with the offer of proof. Some jurisdictions permit the case to proceed without a modification of the Certificate, but there must be a bond filed to cover defense costs in the event that the plaintiff fails to prevail at trial.
Stern Law, PLLC Knows the Nuances of an Effective Negligence Case
There are many different obstacles that must be overcome in order to obtain the compensation that a victim of medical negligence needs to address the devastating consequences of a preventable mistake. At Stern Law, PLLC, our attorney has spent more than 30 years acquiring the skill and knowledge required to pursue a successful medical malpractice action. We see the terrible consequences that a healthcare provider’s negligence can cause and we will do everything possible to obtain justice for our clients. Moreover, we act as a resource for those who have been impacted by medical malpractice, whether directly or as the family or loved one of a person who was harmed by negligence. We have dedicated and compassionate staff available to answer questions 24 hours a day, seven days a week for anyone who has a question or concern, regardless of whether or not you are our client. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.