Amanda Wager, Esq

To reduce the number of medical malpractice lawsuits, more than half of US states have enacted laws that require a plaintiff to file an affidavit of merit, sometimes called a certificate of merit, showing a claim’s validity before the case can move forward. The underlying goal of implementing such laws was to reduce the financial burden that medical malpractice claims impose on the health care industry.

An affidavit of merit is a sworn statement by a qualified expert affirming that the plaintiff has a legitimate claim. Each state has its own requirements as to what must be included in the affidavit. Generally speaking, the affiant must be familiar with the standard of care for the defendant, have reviewed the relevant facts of the case, and be able to opine that the defendant’s conduct fell short of the appropriate medical standard of care. In other words, a qualified expert must be able to attest to the merits of the claim for each medical provider named as a defendant.

Additionally, the expert must have an adequate foundation to testify to the standard of care applied to each defendant. For example, in most cases a nurse practitioner cannot file an affidavit opining that a doctor’s breach caused the plaintiff’s injury. Similarly, a chiropractor cannot opine against an emergency department surgeon, unless the chiropractor can show they have a background, education, training, and practice similar to those of an emergency department surgeon. Some courts have held that the affidavit must specifically identify which defendant or defendants breached the standard of care.

Outside of the context of a lawsuit, requiring affidavits of merit may not appear to have an impact on the day-to-day lives of medical professionals. However, when states enacted this requirement, legislators specifically had day-to-day effects in mind.

Affidavits of merit are a product of tort reform efforts; in other words, efforts to reduce the amount of litigation in the United States. The underlying policy was to force prospective plaintiffs to substantiate any potential medical claims by showing that there was a true issue of liability before filing. The primary goal was to weed out frivolous medical malpractice claims. Further, states wanted to:

reduce the amount of settlement money paid toward questionable claims

limit decisions based upon fear of a potential lawsuit instead of professional judgment

limit the types, amount, and cost of liability insurance

Therefore, the idea was that this requirement would cause medical malpractice insurance premiums to decrease because insurance companies would not have to waste money defending meritless claims. Additionally, it was hoped the requirement would enable health care providers to provide medical care and treatment based solely on their professional judgment, which would in turn improve health care quality.

Have affidavits of merit shown their merit?

Since gaining popularity, the affidavit of merit has stirred debate. Practically speaking, opponents argue that the requirement has not produced the desired goals. Specifically, they argue that when some courts apply their state’s law, frivolous claims are still allowed to proceed, resulting in more litigation expenses. Additionally, opponents argue that there is little evidence that medical malpractice claims have much effect on insurance premiums.

In many cases the affidavit is composed of conclusory statements that do not identify the specific acts of malpractice or provide an explanation of the basis of the opinion. Often the courts in many states are lenient in demanding that the requirement be fully honored; furthermore, the requirement adds an extra step in the litigation process. This inevitably means that there are more issues to dispute, which can potentially draw out the process and therefore make the litigation more expensive. Many cases have had to go through the appeals process solely to determine when an expert is needed and who qualifies as an expert.

Still, the amount of medical malpractice cases has decreased since states began enacting this reform measure. As state courts continue to interpret their own state’s requirements, legislators will have to continue to analyze whether they need to enact updates to meet their goals in improving the health care system more effectively.

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Most states require affidavits for malpractice cases to proceed.

Malpractice Consult: Affidavits of merit and why they matter

“If it was not charted, it did not happen” may be a cliché, but it sums up the importance of properly and thoroughly charting medical records. Records are vital for providing care; however, once attorneys are involved, medical records also become the basis—and one of the most critical aspects—of medical malpractice defense.

Why are medical records important in civil litigation?

Medical malpractice litigation is built around the patient’s medical records, which provide the only objective documentation of both the plaintiff’s condition and the care provided at a time when there was no conflict or other motivation to conceal or exaggerate the care provided. They also are critical in helping the provider recall events that occurred months or even years ago. Because it is the health care provider’s responsibility to document, medical records become extremely important in providing a defense.

As a result, judges and juries often consider medical records to be one of the most trustworthy and probative pieces of evidence in the case. Therefore, well-documented medical records provide the best defense for providers. The inverse is also true; poorly documented medical records may become strong evidence of an incompetent provider. Although poor records do not automatically show negligence, the patient’s attorney will use it to argue subpar care.

What if there is missing or incomplete information?

Go back to: “If it was not charted, it did not happen.” The patient’s attorney certainly will use this, or at least keep it in mind, when prosecuting the case. The patient’s attorney will attack the provider’s credibility by showing the incomplete records. During the provider’s deposition, the patient’s attorney may use skilled cross-examination to obtain the health care provider’s testimony of their recollection about the care provided. A few evidently unimportant details now become the focal point of the patient’s allegations and, therefore, the jury deliberations. The patient’s attorney will argue that if the physician or nurse had provided a specific treatment, then the patient’s injuries would not have happened. If the patient’s attorney can show that important information is missing from the records, then it is not a far leap for the jury to find that the missing information supports the patient’s claims.

This attack on credibility may occur even if the information is not necessarily 

. For example, many systems for electronic health records have prefilled data. Often, the provider entering the patient’s information will not update or change the prefilled data. It then becomes difficult to argue that certain assessments occurred because the same word-for-word language is used throughout the patient’s record. It should also be noted that when dealing with electronic health records, parties can hire an expert to conduct a metadata audit, which will provide a complete analysis of every keystroke, the timing of the entries, who made the entries, and how long the document was open for review and revision. If it is shown that the medical record was altered, it can expose the provider to punitive damages and a medical board investigation.

Neither patient nor physician wants or expects to get involved in civil litigation arising from the medical care provided. Unfortunately, it happens. When it does, the provider will be grateful that they took care to follow best practices in the record documentation by charting timely, thoroughly, and consistently.

Wager is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. She specializes in malpractice defense and insurance litigation. Please contact her at awager@reminger.com with any feedback or comments on this column.

Complete, clear documentation bolsters your credibility.

Good records can save you in a malpractice suit

Once a medical malpractice lawsuit is filed, there are often many unknown facts and issues in the case. What does the opposing party have to support their allegations or defenses? Who are they going to call as a witness? What is that witness going to say?

Parties have a right to investigate this information through a process called “discovery.” The purpose of discovery is to find out information about the other side’s claims and defenses, which allows parties to develop their own cases and analyze the strengths and weaknesses of their case. To do this, parties will use legal tools, such as interrogatories (written questions), subpoenaing relevant documents, and seeking admission on certain issues in the case. However, 1 of the other important tools used to gather information is taking a deposition.

Depositions are an essential and helpful part of our legal adversarial system. In short, a deposition is a question-and-answer process in which a witness provides an oral statement before trial, under oath.

Anyone who may have knowledge of the facts related to the lawsuit can be deposed. Therefore, it is an excellent way to determine the factual issues in the case, as well as what that witness is going to say at trial.

There are many reasons why a party may want to take a witness’ deposition. A primary purpose is to determine what the witness knows. Unlike what popular television shows portray, parties do not like or expect surprises at trial. Doing so is frowned upon and considered unfair. Taking depositions helps eliminate the opportunity for surprise by allowing the parties to hear what the witness will testify to at trial.

Another important purpose of a deposition is to preserve the witness’ testimony. Before answering any questions, the witness will get sworn in the same way they would before taking the stand at trial. Because the witness is speaking under oath, they are providing testimony. This makes it possible to use the witness’ testimony at trial if they are unavailable. For example, if there is a witness who has relevant testimony for a party’s case, but falls ill or passes away, that party would likely be able to use that witness’ deposition testimony at trial.

Like the other forms of discovery, depositions help parties analyze the strengths and weaknesses of their case. One of the main benefits of the deposition vs other discovery tools, such as answering written questions, is that parties can see the witness testifying in person. This means that they can examine mannerisms, appearance, and are able to make a better determination of the witness’ credibility.

Depositions are not generally taken in a courtroom or in front of a judge. Instead, they usually take place in law offices, hotel conference rooms, or the court reporter’s office. A court reporter will be present to transcribe the entire conversation on the record. The deposition may also be videotaped, which usually happens when a party suspects the witness will not be available at trial.

Once the witness is sworn in, the attorney taking the deposition will ask the witness about facts and events related to the lawsuit. Because 1 of the purposes of a deposition is to discover everything the witness knows about the events related to the lawsuit, questions asked during a deposition can be much broader than what is allowed at trial. Attorneys may object to certain questions asked, but the witness will most likely still be required to answer. The attorneys make objections simply to preserve them for a judge to rule on later, as the judge will not be present during the deposition to make the ruling in real time.

Depositions can range anywhere from 30 minutes to 1 week, depending on the nature of the case and the witness’ knowledge. No matter the length of the depositions, every deposition is important. The witness is testifying under oath, so providing false statements may have both civil and criminal consequences. Thus, it is critical that the witness listen to the questions carefully before answering and only provide truthful answers, even if that means answering, “I don’t know.”

Deposing witnesses allows for presentation of factual issues in a case.

Amanda Wager, Esq

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