Unlike ordinary personal injury claims, medical malpractice lawsuits have built-in gatekeeping requirements to weed out unsupported cases before they reach the courtroom. One such requirement, critical in many states, is known as the “certificate of merit.”

As medical malpractice lawyers, Craig Swapp & Associates is often asked what exactly a certificate of merit is in a medical malpractice case, and why it matters for victims seeking compensation. 

If you’re entangled with a medical malpractice case, here’s what you need to know about this important legal document, how it functions, and why it can shape the very outcome of a malpractice lawsuit.

What Is a “Certificate of Merit?”

A certificate of merit is a legal document, usually a sworn statement, filed by the plaintiff early in a medical malpractice case. It demonstrates, from the outset, that the lawsuit isn’t based on speculation or frustration alone, but is anchored in real medical opinion.

To prepare a certificate of merit, the plaintiff’s attorney consults with a qualified medical professional. This expert, typically a physician practicing in the same specialty as the defendant, reviews the patient’s records and facts of the case. 

If, after this review, the expert concludes that the care provided deviated from accepted medical standards and likely caused the patient’s injury, the expert affirms this in writing.

The medical professional’s written statement must clearly outline their belief that:

  • The defendant’s care fell below the standard expected of a reasonably competent provider in the same field, and
  • This failure was a substantial factor in causing the patient’s harm.

After securing this expert review, the medical malpractice attorney files the certificate of merit with the court, usually at the time of filing the initial complaint or within a specified deadline.

What’s the Purpose of a Certificate of Merit?

Why does the law require a certificate of merit in a medical malpractice case? The answer lies in public policy, judicial efficiency, and the realities of medical litigation.

Medical malpractice claims can be highly technical and emotionally charged. 

Lawmakers, responding to concerns about frivolous lawsuits and rising insurance costs, implemented the certificate of merit requirement to accomplish several goals:

  • Filter out baseless claims: By forcing the plaintiff to obtain a supporting opinion from a medical professional before litigation begins, the law screens out lawsuits that lack real merit.
  • Promote judicial efficiency: Courts are spared the burden of managing cases that never should have been filed, freeing resources for those with legitimate claims.
  • Protect health care professionals: Medical providers are shielded from the stress, costs, and reputational harm associated with defending against claims that no reasonable peer would support.
  • Encourage early expert review: Plaintiffs and their attorneys must consult with a medical professional from the outset, allowing for a more informed assessment of the case’s strengths and weaknesses.

For individuals harmed by medical malpractice or negligence, the certificate of merit requirement ensures that only cases supported by genuine medical opinion move forward. For lawyers, it’s a step that demands careful investigation and collaboration with trusted medical experts before litigation begins.

What’s the Content of a Certificate of Merit?

A certificate of merit in a medical malpractice case must be thorough, specific, and signed under oath. 

While state requirements vary, certain elements are almost always present:

  • Qualified Expert Opinion: The document must state that a qualified medical provider, usually someone practicing in the same specialty as the defendant, has reviewed the facts and medical records. The provider should have active credentials and substantial experience.
  • Finding of Negligence: The expert must attest that, in their professional opinion, the defendant’s actions deviated from the accepted standard of care applicable to that specialty. This means the care provided fell short of what a reasonably careful provider would have done under similar circumstances.
  • Causation: It is not enough to show substandard care; the expert must link that care directly to the injury. The certificate of merit should explain how the defendant’s actions were a substantial factor in causing the harm.
  • Basis for the Opinion: Many states require the expert to provide a brief explanation or factual basis for their opinion. This might include references to the specific medical records reviewed, the timeline of care, and the medical literature or guidelines that inform the opinion.
  • Attorney/Party Declaration: The document usually includes a statement by the plaintiff’s attorney (or the plaintiff if self-represented) affirming that the case has been reviewed by a qualified health care provider and that, based on this review, the lawsuit is being filed in good faith.

A well-drafted certificate of merit is a foundational document in medical malpractice litigation. It sets the tone for the case, and any deficiencies in content or qualification can expose the claim to early dismissal.

Is a Certificate of Merit Required in Every State for a Medical Malpractice Case?

The rules around certificates of merit in medical malpractice cases are not universal. While many states in the U.S. have adopted such requirements, others have taken different paths, sometimes after legal challenges.

Below is a look at how this requirement applies in some of the key states served by Craig Swapp & Associates:

Utah

For many years, Utah law required plaintiffs who received an unfavorable pre-litigation panel review to file an affidavit of merit from a qualified health care provider before moving forward with a medical malpractice lawsuit.

However, in Vega v. Jordan Valley Med. Ctr., 449 P.3d 31 (UT 2019), the Utah Supreme Court declared this requirement unconstitutional. The court found that the process improperly limited access to the courts by delegating final authority to an administrative panel – an authority that belongs to the judiciary. 

As a result, plaintiffs in Utah no longer need to file a certificate of merit to proceed with a medical malpractice claim. 

Washington

Washington State also previously required plaintiffs to file a certificate of merit in a medical malpractice case, but the state supreme court struck down this law in Putman v. Wenatchee Valley Medical Center, 216 P.3d 374 (2009). 

The court ruled that the statute unconstitutionally infringed on the court’s power to govern court procedure, making the affidavit of merit unenforceable. Today, medical malpractice claimants in Washington are not required to file a certificate of merit, but, like in all states, they will still need strong expert testimony to prevail.

Because the rules are state-specific, it’s critical to consult with medical malpractice lawyers who understand the nuances in each jurisdiction. Filing requirements, deadlines, and the very necessity of a certificate of merit can differ dramatically, even among neighboring states.

When Do You Submit a Certificate of Merit?

Timing is crucial in medical malpractice litigation, and this is especially true for certificates of merit. In states where the document is required, missing the deadline can result in immediate dismissal of the case.

  • At or Shortly After Filing: Most states that require a certificate of merit mandate that it be filed simultaneously with the complaint or within a narrow window – often 60 to 90 days – after the lawsuit is initiated.
  • Extensions: Some jurisdictions allow for a brief extension upon showing good cause, but this is the exception rather than the rule.
  • Strategic Considerations: Because the certificate of merit must be based on a thorough expert review, plaintiffs and their lawyers should begin the process of medical record collection and expert consultation as early as possible.

Missing the certificate of merit filing deadline, no matter how compelling the facts, can permanently bar a plaintiff from pursuing justice in court. That’s why working with an experienced medical malpractice lawyer is vital to avoid procedural pitfalls and preserve the right to compensation.

Common Mistakes to Avoid in Certificates of Merit

Despite the clear legal requirements, many plaintiffs encounter avoidable setbacks due to errors in preparing or filing a certificate of merit in a medical malpractice case. 

Here are some of the most common mistakes and how to steer clear of them:

  • Inadequate expert qualifications
  • Failure to establish both negligence and causation
  • Generic or boilerplate language
  • Untimely filing
  • Missing or incomplete documentation

A certificate of merit is not a mere procedural hurdle. Plaintiffs and their families should always work with a seasoned medical malpractice lawyer who understands the state’s requirements and has established relationships with credible medical experts.

Know the Merit of Your Medical Malpractice Case with Us 

Understanding the importance of a certificate of merit in a medical malpractice case is essential for anyone considering legal action after an injury caused by medical negligence. Not only does this document serve as a gatekeeper for valid claims, but it also sets the stage for the quality of expert evidence that will be required in court.

At Craig Swapp & Associates, our team stands ready to evaluate your case, identify the requirements in your state, and help you move forward with confidence and clarity. Our medical malpractice lawyers bring more to the table than knowledge of the law; we also bring the relationships, resources, and experience necessary to secure strong medical opinions and craft compelling, compliant certificates of merit. 

Call us today at 866-308-3822 to schedule your free consultation or send us a message about your case by answering our online form here.

Written By: Ryan Swapp     Legal Review By: Craig Swapp