Personal Injury Attorney Ben Schwartz explains an Affidavit of Merit requirements and why it would be needed to file a medical malpractice lawsuit in Delaware.

Hey Folks, I am attorney Ben Schwartz,

Today I am going to answer a question from another attorney who is working on a medical malpractice case, that hopefully will be filed soon in the state of Delaware. The attorney asked me, you know in this malpractice case, it is a medical malpractice case, and it involves some egregious conduct on the part of a local physician.

The attorney asked me if Delaware has a requirement in medical malpractice cases called the affidavit of merit requirement? The attorney asked me since the medical malpractice is so clear and so obvious, do you think we could get by with filling this now without jumping through the hoops of getting an affidavit of merit?

I just wanted to do a quick video to talk about the topic of an Affidavit of Merit in a medical malpractice case.  There are some cases, not medical malpractice, but engineering malpractice, legal malpractice where you can file a lawsuit against a professional and you do not need to file anything with the lawsuit in order to establish that another professional has reviewed the case and made a determination that the defendant that you are suing acted negligently.

So, for example, if you hire a lawyer to defend you in your criminal case, you show up on the day of trial and the lawyer does not show up because the lawyer went out and got drunk, the judge puts you in jail because your lawyer did not show up. You probably got a legal malpractice case against your drunk attorney, that you paid to defend you and did not show up. You do not need to get another attorney to give you a certificate or an affidavit or any sort of report or anything to file the lawsuit. But if it was a medical malpractice case and you went in for surgery and your surgeon was drunk and screwed up the surgery. You could not just file a lawsuit in the state of Delaware on that, because Delaware has an affidavit of merit requirement.

So, the answer to this attorney’s question about can just file the lawsuit is very open and obvious. This negligence is so clear, can we just file the lawsuit without anything more? The answer is no, you can not file the lawsuit in this particular case with nothing more, even though the negligence of the physician is so clear. The reason for that is that in the state of Delaware, in order to file a medical malpractice case or any health care malpractice case, you have to have an affidavit of merit. Meaning, a certificate that is in affidavit form. It is signed by a doctor or a nurse in the same sort of specialty as the defendant that you are suing. And it states things such as they have reviewed the case and found that the defendant acted in a negligent manner.

Without that affidavit in most cases, you are not going to have a lawsuit. The court will not accept your lawsuit. There are some exceptions to the affidavit of merit requirement for example if you are in an emergency. You are in the operating room and there is an explosion or a fire that causes the patient injury. You do not need an affidavit of merit to file that lawsuit.

If you have a retained instrument case where the doctor unintentionally leaves some foreign instrument in the patient. You know leaves a scalpel in the surgery site and closes the surgery site. That is a case you do not need an affidavit of merit in order to file that lawsuit. But there is no exception in the state of Delaware for open and obvious negligence. You can have the most open and obvious negligence case in the medical malpractice realm, but you still need an affidavit of merit.

So, I hope that answers the question. I think it was a good question. I have my own opinions on the affidavit of merit requirement. Number one: I think it makes it very difficult to review cases and get them filed because in the vast majority of medical malpractice cases you have to have another doctor, or you have to have another nurse review that case and be willing to give an affidavit to be used against their brother or sister in the medical profession. It is a terrible law, but that is the law folks.

I am attorney Ben Schwartz. If you have a question for me dealing with personal injury litigation, wrongful death litigation, or anything along those lines of medical malpractice, feel free to send me an email.