Affidavit/Certificate of Merit

• Banfield v. Brodell
• Chadha v. Charlotte Hungerford Hospital
• Putman v. Wenatchee Valley Medical Center
• Summerville v. Thrower

Banfield v. Brodell, 862 N.E.2d 169 (Ohio App. 2006)

Issue

The issue in this case was whether an Ohio judicial rule requiring that an affidavit of merit accompany any new medical malpractice complaint should be strictly enforced.

AMA interest

The AMA supports timely filing of affidavits of merit as conditions for the prosecution of legal actions against physicians.

Case summary

Effective July 1, 2005, the Ohio Supreme Court amended Ohio Civil Rule 10(D) to require that complaints involving a "medical claim" include an affidavit of merit to establish the adequacy of the claim. In addition, the amended rule provided that a plaintiff may file a motion to extend the period of time to file the affidavit of merit, but such motion must be filed with the complaint and only for "good cause shown."

On July 26, 2005, the Plaintiff, Sandra Banfield, filed a complaint against Dr. James Brodell, an Ohio orthopedic surgeon, alleging that Dr. Brodell had provided negligent treatment during an artificial knee implant. She did not include the required affidavit of merit or a motion to extend the time to file one. Dr. Brodell moved to dismiss the complaint, based on this omission. In response, Plaintiff asserted that the Statute of Limitations had been about to bar her claim, and her attorneys had been unable to obtain an affidavit of merit prior to the expiration of the statute. Notwithstanding this excuse, however, the court granted Dr. Brodell's motion to dismiss and rejected the Plaintiff's motion.

The Plaintiff then moved to reconsider the judgment of dismissal, arguing that her failure to file an affidavit of merit had been due to the "excusable neglect" of her attorneys, which under the Ohio court rules justifies relief from a judgment. She argued that her attorneys had not been aware of the new procedural requirements. Had they known of the amended rule, an affidavit of merit could have been filed, since her attorneys had consulted an expert who had reviewed the case files and concluded that the claims against Dr. Brodell were meritorious prior to the filing of the complaint.

The court granted the Plaintiff's motion and reinstated the case, finding that her failure to file a timely affidavit of merit constituted "excusable neglect" by her attorneys. Dr. Brodell appealed this decision.

By a split decision, the Ohio Court of Appeals affirmed, holding that it was within the trial court's discretion to vacate the judgment that had been entered against the Plaintiff. The Ohio Supreme Court then declined Dr. Brodell's request to review the case.

Litigation Center involvement

The AMA, along with the Ohio State Medical Association and the American Association of Orthopaedic Surgeons, filed an amicus brief in the Ohio Court of Appeals, supporting the defendants' appeal. The amicus brief argued that the Ohio Supreme Court had implemented Rule 10(D)(2) at the request of the Ohio Legislature, to ensure continued access to medical care by requiring due diligence before a plaintiff's filing of a lawsuit. Amici explained that the legislature had found that procedural safeguards were necessary to combat the costs of meritless medical malpractice claims. The amicus brief further explained that Rule 10(D)(2) allowed for additional time to file an affidavit of merit upon a showing of good cause, which should not be found, however, where timely filing was within the plaintiff's control. In this case, the requisite "good cause" was lacking because plaintiff's failure to file timely resulted from her attorneys' failure to research the law.

After the appellate court ruling, amici also submitted a brief to the Ohio Supreme Court, requesting (unsuccessfully) that it review the case.

View the brief (PDF, 77KB).

Chadha v. Charlotte Hungerford Hospital, 829 A.2d 419 (Conn. S. Ct. 2005)

This case concerned the immunity, under Connecticut law, to be given persons (in this case three physicians and a hospital) who submitted an affidavit to the Department of Public Health, questioning a physician's ability to practice medicine safely. The issues were (a) whether the persons who submitted the affidavits were entitled to absolute immunity against a suit for defamation or were only entitled to immunity if they had acted without malice, and (b) whether the denial of a motion for summary judgment by the persons claiming immunity was immediately appealable.

The plaintiff, Mohinder P. Chadha, MD, was a licensed psychiatrist and a member of the Charlotte Hungerford Hospital medical staff. The Connecticut Department of Public Health asked the Connecticut Medical Examining Board to revoke or take other disciplinary action against Dr. Chadha’s medical license. Four physicians submitted affidavits to the Department of Public Health expressing concerns about Dr. Chadha’s ability to practice medicine safely. This was at the request of the Department of Public Health. Two of the defendant physicians were on the Charlotte Hungerford Hospital medical staff, and the other one had, pursuant to the hospital’s request, reviewed the medical records of some of Dr. Chadha’s patients.

The Medical Examining Board summarily suspended Dr. Chadha’s license, pending its final determination. Subsequently, the Medical Examining Board issued a final decision suspending Dr. Chadha’s license because he had written ten prescriptions for controlled substances while his license had been under temporary suspension.

Dr. Chadha then sued the four physicians who had submitted affidavits against him as well as Charlotte Hungerford Hospital. He alleged that the physicians had defamed Dr. Chadha by maliciously submitting false affidavits to the Department of Public Health.

The defendants moved for summary judgment, claiming that their statements had been made in "a quasi-judicial proceeding" and they therefore had absolute immunity against a suit for defamation under Connecticut common law. The trial court granted the motion in part, but it denied the motion in part. It held that the defendants did not have absolute immunity. The defendants then appealed the partial denial of their motion to the Appellate Court of Connecticut.

The Appellate Court noted that the defendants would have been entitled to absolute immunity under Connecticut common law. However, it held, the Connecticut peer review law had modified the common law doctrine, and now the defendants could obtain immunity only if they were able to show that their statements to the Department of Public Health were submitted in good faith and with the reasonable belief that they were true. Such a showing would require a trial, and therefore the Appellate Court affirmed the trial court's partial denial of the motion for summary judgment.

The case was then appealed to the Connecticut Supreme Court. The Litigation Center submitted an amicus brief supporting the defendants. The brief argued that the peer review statute had not been intended to diminish the common law immunity rights.

The Connecticut Supreme Court affirmed, holding that the Connecticut peer review statute modified the common law right of absolute immunity. Thus, the defendants were only entitled to qualified immunity.

Putman v. Wenatchee Valley Medical Center (Wash. S.Ct.)

Issue

The issue in this case is whether the Washington certificate of merit statute is constitutional.

AMA interest

The AMA supports laws requiring certificates of merit as conditions for filing medical malpractice cases.

Case summary

Kimme Putman sued Wenatchee Valley Medical Clinic and three of its physicians for medical malpractice. When she filed her suit, Ms. Putman filed certificates of merit against two of the three physician defendants. She then voluntarily dismissed the third physician defendant.

The medical clinic moved to dismiss the claims against it, contending that a certificate of merit should have been filed regarding each individual whose conduct formed the basis of the vicarious liability claims against it. The trial court specifically upheld the constitutionality of the certificate of merit statute, and it certified the immediate appealability of its order.

Ms. Putman appealed, and her case was sent directly to the Washington Supreme Court, bypassing the Court of Appeals.

Litigation Center involvement

The Litigation Center, along with the Washington State Medical Association will file an amicus curiae brief in the Washington Supreme Court supporting Wenatchee Valley Medical Center.

Summerville v. Thrower, 369 Ark.231, 2007 Ark. LEXIS 215 (Ark. S.Ct. 2007)

Issue

This case addressed the application and, perhaps, the constitutionality of the Arkansas affidavit of merit requirement, which applies to medical malpractice cases requiring expert testimony.

AMA interest

The AMA supports timely filing of affidavits/certificates of merit as conditions for the prosecution of legal actions against physicians.

Case summary

Ark. Code § 16-114-209(b) requires that, in medical malpractice cases requiring expert testimony, an affidavit attesting to a breach of the standard of care must be filed within 30 days of the filing of the complaint. Further, the statute states: "If the affidavit is not filed within thirty (30) days after the complaint is filed with the clerk, the complaint shall be dismissed."

The plaintiff, Tomosa Summerville, sued Dr. Rufus Thrower and two other defendants in the Circuit Court of Pulaski County, Arkansas (Little Rock) for negligent obstetrical and gynecological care. She did not file an affidavit of merit within 30 days of the filing of her complaint, and thus it was dismissed. The Order of Dismissal stated: "In so ruling, the Court specifically finds that Ark. Code Ann. § 16-114-209(b) is constitutional."

Summerville appealed to the Arkansas Supreme Court, which on March 15, 2007, reversed the trial court’s dismissal, finding that the affidavit of merit requirement was unconstitutional in part. The Arkansas Supreme Court reasoned that the regular court rules do not require dismissal of a case for failure to file an affidavit of merit within a specified time period, and that the Arkansas Constitution empowers the Supreme Court (but not the legislature) to establish procedural rules for the courts. Thus, the constitutional infirmity in the affidavit of merit requirement is the rigidity of the dismissal requirement. Under the Supreme Court ruling, courts can delay the dismissal of a medical malpractice lawsuit until such time as they think would be proper, even if the plaintiff is unable to proffer expert testimony to support his or her claim.

Litigation Center involvement

The Arkansas Medical Society and the Litigation Center filed an amicus curiae brief to support the statute requiring an affidavit of merit.

View the brief. (PDF, 1MB)