Jeff Segal, MD, JD, FACS
Affidavits of merit, are they worthless?
Probably.
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.
This is an example of the ‘closed shop’ effect at work. Most judges are former lawyers (not doctors). This opinion illustrates that. They can always hide behind the implication they are trying to protect the plantiff who may have been injured but is not sophisticated enough to provide the evidence.
Well, in my home state of NJ, an AOM has existed since 2002. Some people assert that this reform has curbed frivoulos filings but, in my opinion, there is still a glaring weakness in the statute. The expert hired by plaintiff’s counsel must attest (along with the requisite “no-interest in the outcome” clause, must be boarded and in the same specialty as the defendant doc etc) that, “in his/her opinion the defendant deviated from the SOC “- without any obligation whatsoever of citing one single reference to support the opinion. I say, save your money and just ask the man on the street from the many Jay Leno episodes when he would ask strangers on Sunset Boulevard in LA, “Who’s buried in Grant’s Tomb”? Occasionally, the correct answer would emerge.
As is noted in Dr. Segal’s article, this has had the “intended” (my observation) consequence of dragging along peripheral defendants until they are ultimately dismissed years later but only after several thousands of dollars have been spent on defense costs. I know, this happened to me. Such a system also makes it difficult to claim such experts as nothing more than self-serving distorters of the truth for hire. As such, filing grievances with the specialty societies as well as the State Board of Medical Examiners becomes difficult because of ambuguity. Finally, of course, are the facilitators, the judges, who point their middle finger at the law.
A judge allowed a malpractice suit against me to continue, despite the fact that no certificate of merit had been filed by the statute of limitations date, reasoning the “the plaintiff shall not be penalized by the fact that her attorney has been unable to secure a certificate of merit within the time limits.” It took 3 years, untold money and aggravation till I was dismissed.
The first case filed against me in 1997 where the colleague who signed the affadavit certified the negligence based upon my failure to order a test where in his opinion such test was required. The text books and current literature did not recommend any such action. On that basis case got filed. There is no requirement for these people who sign affadavit to quote some valid refrences to justify their basis of “standard of care” ! Most of the times individual whims and the benefit of hindsight make them sign these pieces of papers. There is zero scrutiny of such behavior and absolutely no feed back to these people to be careful and at least be cosistent with the current recommendations. I had a resolution to that regards in state medical society delegates meeting ,going no where. The practice continues. That was my first case ever and I was scared and I settled despite a very good defense. I blame myself no one else but aftet 6th degrading deposition where the plaintiff lawyer made me read text book chapters after chapters! I saw my attorney sitting helplessly telling me to abide by whatever the guy asked for and I broke down. It was a perfect example of “legal shake down by a loan shark”. I still am dismayed that I had no defense against that demoralization and degradation used to shake me down. Subsequently I lost my insurance coverage. I had to buy from secondary market at very high rate insurance from very shaky and unknown companies to just keep doors open. The previous insurer forced me to buy the tail too. a finacial route for a pediatrician.
The second case was filed on the tail of the first case and again the person who signed the affidavit did not ask or look at the microscopic slides from autopsy, and the medical records where troublesome fetal heart tracings were telling the story that the things went seriously wrong days before baby was born. The experts on both sides ( yes, my side too) unanimously declared I had no case and I better settle. The insurer refused to seek experts who could have understood the complex`case. Luckily the hospital was involved and had a very astute nurse attorney. She took leads from my notes and looked around the country to see if some one would agree with me that there was`some thing seriously wrong with the baby in utero and was incampatiblle with life. She did succeed in finding a world authority on infants liver, infants brain and fetal heart tracings and all three came to the same conclusion that this baby was doomed in utero and would not have survived no matter where the baby was taken care of. Six years and tremendous stress and afinacial burden.
I have a third case and I can not talk about it now since it is going on. I promise that I will write whatever right or wrong, good or bad after that is over with. I am not sure if physically I will survive the case. I am old man and was looking for some peacful years of working but that is a mirage in this litigenous society.
Can testify that this is so true. Once had a case filed with COM signed by a family doctor regarding standard of care in surgery! what a joke! But once filed, an insurance company is not your friend because all they want is to get out with the lowest cost which usually involves settling for some nominal amount. But then they turn around and either drop you or raise your rate for getting the misfortune of having a suit.
Of course certificates of merit are worthless. That’s the only reason the act was permitted by the trial attorneys to pass the legislature. If they had any real teeth, the TA would kill their own mother to make sure it didn’t pass.
This is an industry contolled by the courts and attorneys. There are billions of dollars in revenue to them to be thoroughly protected. The majority of trial and personal injury attorneys detest each other and can barely be civil if they encounter another on the street.
But when it comes to protecting their turf, they will stand together like a “band of brothers.”
We are seeing this same industry make a mockery of our economy due to a political system which is heavily weighted in the legal and lawyer industry. I am discouraged about the future of our Country and am deeply relieved that I am retired and getting older. There’s a lot that I will not live to see. I am not sorry for that.
Sanjose Mike