Personal Injury Attorney, Ben Schwartz, answers a viewer question: “What is an Affidavit of Merit?”

Hi, I’m Attorney Ben Schwartz,

Today we are going to answer a question, the question is, what is an Affidavit of Merit? An Affidavit of Merit is something that you need in a Delaware medical malpractice case before you can file a lawsuit in a Delaware medical malpractice case. You have to get an affidavit from a physician who is in the same specialty as the physician who you claim committed malpractice. This affidavit essentially has to say that the physician who you are suing acted in a negligent manager and this negligent act caused your injury. An Affidavit of Merit is required under Delaware law in order to file a lawsuit against a doctor or other health-care professional, for professional negligence.

I think the law that requires it came along before I did before I became an attorney, but I think that the general idea is that if you cannot get an Affidavit of Merit then you probably do not have a case that should be brought in the first place. In other words, I think that the law was probably designed to cut down on medical malpractice lawsuits, where it is not clear that the doctor actually did something wrong to cause injury or death.

For my purposes, I think that the Affidavit of Merit requirement is a little bit stiff because oftentimes, you know we are in Delaware, and Delaware has a two-year statute of limitations on personal injury cases and a two-year statute of limitations on medical negligence cases. Often times, if there has been a catastrophic injury or death, I think the general impression among the general public is that people go running to trial lawyers. I think the actual truth is that people do not go running to trial lawyers. They deal with the impact on their lives, they take time to get in the mindset of recovery and then they go to a trial lawyer.
People go to lawyers to get consultations for medical malpractice cases a year after their family member died or 18 months after their family member died. It is very difficult to get all the medical records and to get a physician to review them in order to give an Affidavit of Merit. So from my perspective, having to get all the medical records and having a physician to review all the records and give an Affidavit of Merit saying that the treating doctor was negligent and that negligence caused the injury or death is a very stiff requirement to put on the families of people who have died due to medical errors.

I would be interested to know what you think. If you have an opinion on this topic, I would be interested to know if you think this is a good thing requiring the families to go out and get medical records and affidavits, or do you agree with me and think it is a little bit too much and that it could cause more harm to people that are already suffering. Let me know what you think, you can send me an email below or on Facebook. I appreciate your taking the time to watch it and I hope you found it to be interesting and informative and I hope it helps you understand more about the law and your rights.