Jeff Segal, MD, JD, FACS

Affidavits of merit, are they worthless?


Ohio provides but one example of how well intended legislation can be diluted by judges.

Ohio introduced tort reforms in 2005. Among the reforms, plaintiffs were now required to prove they had done some homework before filing. The plaintiffs had to assert that a qualified expert had reviewed the case and determined the claims had merit. That Rule was known as 10(D)(2). What’s not to like? It’s like Mom and Apple Pie. Hardly controversial.

The steps are basic. The plaintiffs must give the relevant records to one or more qualified physicians to review. The physician must determine negligence may have occurred. Then, that physician must memorialize that conclusion in writing – the Affidavit of Merit. That’s it.

One would think that if nine different specialists were named in a single lawsuit, records would reasonably be reviewed by different specialists – penning multiple Affidavits of Merit. Such a process, if honored, would surely have the effect of deterring frivolous litigation against potential peripheral defendants. It would also neutralize shotgun lawsuits – where anyone whose name is on the chart is sued.

Ohio doctors report that more than one Affidavit of Merit is rarely filed. But lots of different specialists are corralled into single lawsuits.

In a recent Ohio case, a plaintiff sued six defendants; four practiced different specialties. A single affidavit was presented, signed by an out-of-state physician who didn’t practice in even one of relevant specialties. Read that statement again.

The doctors asked the court to dismiss the case, arguing that the Affidavit of Merit requirement – the bare minimum needed to initiate a case – was not met.

Here’s what the court replied:

Defendants failed to cite any case law to support the proposition that expert witnesses, for purposes of an affidavit of merit, must practice in the same specialty as the defendant(s). [T]he fact that Plaintiffs did not include an affidavit of merit of an expert specializing in [medical specialty], the medical specialty of Defendants[,] does not render the Affidavit of Merit included with the Complaint insufficient.

So as not to appear ridiculous, the ruling did include the following statement as a footnote:

In making this determination upon the constricted record of a motion to dismiss, the Court makes no determination of the competence of the affiant to testify at trial or in further proceedings.

Wouldn’t it be better to quickly conclude that an expert is competent to testify about negligence rather than wait until $500,000 worth of legal fees has been spent? Particularly if the conclusion never changes.

Ohio is not alone in requiring an Affidavit of Merit. But, so many doctors have found that the courts in many states are lax in demanding the requirement be fully honored.