If you’re thinking of filing a medical malpractice lawsuit, you may need an affidavit of merit. Half of the states in the US now have laws requiring plaintiffs file an affidavit with their lawsuit, including Virginia.
An affidavit of merit is a signed document, reviewed by a medical expert, asserting the merit of your claim. To be honest, the affidavit is a vehicle to further the “tort reform” movement (propagated by individuals who believe there is too much litigation in America and the solution is to reduce your access to a court room).
The requirements of the affidavit vary from state to state, but in general, the following must be affirmed:
- The qualifications of the signing party as an expert in the medical field
- The expert’s review of your case
- The expert’s assertion that the case has merit
In Virginia, the affidavit of merit (aka certificate of merit) is codified in Va. Code 8.01-20.1 (general medical malpractice) and 8.01-50.1 (applies to wrongful death cases.)
The statute requires you have a signed “certificate of merit” in your file at the time you request service of your medical malpractice claim against the defendant.
The certificate of merit must have “a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.” Take note: the statute does not say that you need a detailed opinion.
The statute requires that the certificate be signed by “an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.”
Not filing an affidavit of merit will likely result in the dismissal of your suit. Though, you may receive additional time to secure the affidavit.
To understand whether you need an affidavit of merit/certificate of merit, contact a qualified Virginia medical malpractice attorney. We can help walk you through your issues, and explain each step needed to get your voice heard.
About Our Firm: We have offices in Virginia Beach, Hampton, and Norfolk, VA along with an office in Elizabeth City, NC. Our team of personal injury attorneys publish and edit articles on three Legal Examiner sites as a pro bono service to the general public.
One Comment
jc
I cannot believe that half the states do not have laws requiring an affidavit of merit in all medical malpractice cases. Patients file medical malpractice cases because of a bad result. But most bad results are do to the progression of the disease process not something the doctor did wrong. A few years ago, a lawyer friend of mine asked me to sign an affidavit of merit. I looked at the case of a man who had gall bladder surgery. His surgeon felt a mass in the pelvis and the surgeon and family doc told the patient he needed a barium enema and CT scan to investigate the mass. Well the patient was in denial and refused. The patient had colon cancer and eventually died a year later. The family wanted to sue the surgeon and family doc for malpractice and the lawyer wanted me to sign an affidavit of merit. I refused to sign it! Unfortunately, there are unscrupulous doctors that, for a price, will sign any affidavit of merit. This fraudulent practice is bad for the justice system because the plaintiff and his attorney and the defendant and his attorney end up wasting a lot of time and money on a frivolous case that blows up when the fraudulent medical expert gets cross examined on the witness stand.
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