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What is a certificate of merit in a medical malpractice action?

So you believe that you have been injured by an act of medical malpractice. You and your attorney both further believe that you have a strong case, and your lawsuit is not barred by the applicable New York statute of limitations governing medical malpractice actions. Everything looks good to file your lawsuit, or so you think. But there is one more requirement that you will need to satisfy before you can take your complaint to court: you will need to obtain, or at least make a good faith effort to obtain, a certificate of merit.

A certificate of merit serves the purpose of pre-qualifying your lawsuit as being valid in the opinion of at least one medical practitioner. Your belief in your case, and that of your attorney, are generally insufficient to meet the state law requirement that you in fact have a good claim for medical malpractice. What is more, the medical practitioner that you work with when making your certificate needs to be one who is knowledgeable in the issues relevant to your claim (that is, you cannot have a dentist certify your medical malpractice claim against a doctor, or vice-versa).

Your attorney will usually file the certificate of merit at the same time as the filing of the medical malpractice complaint. There are some exceptions to this procedure: if your attorney cannot obtain a certificate before the expiration of the statute of limitations, or if your attorney has made three good-faith attempts to consult with three physicians to obtain a certificate and none of them would agree to such a consultation. The first of these situations can lead to a 90-day extension of time to file the certificate, and the latter may avoid the requirement.

There are other ways in which the certificate of merit may not be applicable as well, such as when the attorney relies on the legal doctrine of res ipsa loquitur to establish the occurrence of medical malpractice or in the even that you are serving as your own attorney.

A New York personal injury firm that practices in the area of medical malpractice law can assist you in meeting the certificate of merit requirement, or in qualifying for one of its exceptions.

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