Certificate of Merit

A certificate of merit is a legal motion that certifies a plaintiff’s attorney has reviewed the facts of a case with a medical expert, who has concluded that the case has merit. Basically, a medical expert must sign off on a case, testifying that a medical professional deviated from normal or safe practice, injuring the patient.

Many states require a certificate of merit to move ahead; without such a certificate, a medical malpractice case can be dismissed outright and with prejudice. Some have taken certificate of merit requirements further, mandating that certificates must be filed within 90 days of filing a suit. Other states require plaintiffs give defendants 60 days notice of their intent to sue before filing.

Proponents argue that such requirements stop frivolous lawsuits before they begin, but the reality is that certificates of merit do nothing but further burden victims and prevent access to our civil justice system. Certificates of merit and other filing requirements only serve to discourage patients from seeking justice in our courts.

Firstly, even without a legal requirement, a majority of plaintiffs’ attorneys consult with medical experts before filing lawsuits. Frivolous lawsuits have little likelihood of settling, so there is little benefit in filing a lawsuit without a chance of resolution.

Much like damage caps, certificate of merit requirements have been challenged in court and rejected as a violation of the separation of powers. Whereas damage caps violate the right to a trial by jury, certificate of merit requirements limit a victim’s right to be heard. Several appellate courts have found that such requirements “conflict with the judiciary’s inherent power to set court procedures.”

Many certificate of merit requirements are impossible for plaintiffs to fulfill. Medical experts, under threat of contempt, wouldn’t sign the certificate without reviewing the details of the case; however, doctors and healthcare providers weren’t required to speak with the medical expert. Without the potential defendants speaking up, the medical expert wouldn’t testify to the details, and the case could never be filed.

Certificate of merit requirements aren’t an efficient vetting procedure; instead, they serve as another tort reform roadblock for victims seeking justice.