How About an Affidavit of a Meritorious Defense in Med Mal Cases?

The handling of malpractice cases would be much more efficient if defendants were required to provide an affidavit from a qualified expert early on in the case stating under oath that the treatment at issue complied with the standard of care—just as the plaintiff is required at the outset to submit an affidavit from a qualified expert establishing the defendant departed from the standard of care…law.com/How About an Affidavit of a Meritorious Defense in Med Mal Cases? Abbott Brown, 2021

This is not a novel idea. Florida requires defendants who receive a claim to submit “a verified written medical expert opinion from a medical expert … at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.” See FLA. 766.203.

Defendants in professional negligence cases should be required to serve an affidavit of merit (AOM) from a qualified expert stating: “Based upon the records which I have reviewed and/or the facts of this matter, there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment of the patient by [the defendant] complied with acceptable professional or occupational standards or treatment practices.”  This could be done by a new Rule of Court.

The savings of time and resources of the courts, counsel and parties in certain cases could be substantial.

When an insurance company or lawyer goes to four experts who advise the case cannot be defended, but finds a fifth expert who is “flexible” and willing to defend conduct that is indefensible, why not make this expert say so under oath, just as we do with plaintiffs’ experts?

Who knows, maybe this proposal will reduce some of the frivolous defenses supported by these fifth-string experts, and move some egregious cases toward a just resolution sooner rather than later.