What Is a Certificate of Merit in a New York Medical Malpractice Action?

In most personal injury and wrongful death cases, allegations that the plaintiff makes in the Complaint do not need to be supported with evidence for months, or even years, depending on how the litigation process plays out. However, there is one significant exception to this standard. An attorney who files a medical malpractice lawsuit against a doctor, dentist or podiatrist in New York State usually must include a Certificate of Merit with their Complaint. This certificate includes the attorney’s declaration that they have consulted with at least one practitioner in the relevant field who believes there is a reasonable basis for the malpractice claim.

The Certificate of Merit requirement is outlined in CPLR § 3012-A (2012) and includes the following exceptions:

• Statute of limitations expiration — If the purported medical malpractice victim is in danger of losing their ability to file a lawsuit because the statute of limitations is about to expire, the Complaint can be filed without a Certificate of Merit. However, the certificate must be filed within 90 days after the litigation has commenced.
• Res ipsa loquitur cases — The legal doctrine of res ipsa loquitur refers to cases where the purported negligence is so obvious that expert testimony is not required to demonstrate a violation of professional standards. An example might be where a doctor operates on the wrong leg.
• Lack of records — When defendants refuse to provide records to medical malpractice plaintiffs, the Certificate of Merit does not have to be submitted until 90 days after the documents are turned over.

There are a few reasons why a Certificate of Merit is mandated in most healthcare negligence cases. Cases involving medical malpractice involve more than a brief moment of carelessness but allege that a doctor, dentist or podiatrist did not follow the best practices of their profession. Even a meritless allegation could do significant harm to a defendant’s reputation before the case is dismissed. Moreover, medical malpractice actions often turn on expert testimony regarding scientific matters and the standards observed by healthcare providers. Including the input of professionals with real-world experience puts the case issues into sharper focus.

At Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, we represent medical malpractice plaintiffs throughout Nassau and Suffolk counties. After learning about the facts of your case, our attorneys can identify a relevant expert and consult with them in order to prepare the Certificate of Merit.