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Affidavit of Merit

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

Also under Certificate of merit and Tort reform

Outcome:    Very unfavorable

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.

Ohio Court of Appeals brief.  

Boggs v. Camden-Clark Memorial Hospital, 609 S.E.2d 917 (W.Va. 2004)

Also under Abusive litigation against physicians, Certificate of merit, Hospitals, and Tort reform

Outcome:    Somewhat unfavorable

Issue

The issues in this case were the timeliness of pre-filing certificates of merit in a medical malpractice action filed in West Virginia and the constitutionality of a cap on non-economic damages recoverable under West Virginia’s medical malpractice statute.

AMA interest

The AMA supports tort reform, specifically the limitation of non-economic damages in medical malpractice cases.

Case summary

Plaintiff Bernard Boggs claimed that Dr. Manish Koyawala caused his wife’s death by failing to adhere to the standard of care in anesthetizing her. Mr. Boggs also made claims against United Anesthesia (Dr. Koyawala’s anesthesiology group) and Camden-Clark Memorial Hospital for malpractice and various other torts.

The West Virginia Medical Professional Liability Act (MPLA), W.Va. Code §55.7B.1, et seq. provides (among other things) that medical malpractice plaintiffs must serve pre-filing notices of claim and certificates of merit at least 30 days prior to filing suit. Moreover, a revision to the MPLA provides that claims filed on or after July 1, 2003 are subject to a limit on the amount of non-economic damages recoverable. The defendants moved to dismiss, arguing that Mr. Boggs had failed to provide them with properly executed certificates of merit a full 30 days prior to filing suit. The trial court granted the motion, dismissing all claims. Mr. Boggs then asked for leave to amend his complaint, based on a West Virginia procedural rule providing for the “relating back” of claims. Such “relating back” would allow Mr. Boggs to avoid the applicability of the cap on non-economic damages. The trial court denied this motion. Mr. Boggs then appealed to the West Virginia Supreme Court.

The West Virginia Supreme Court decided the case in the plaintiff’s favor, reasoning that the lower court had incorrectly denied plaintiff leave to amend his complaint. The Supreme Court held that the plaintiff was entitled to amend his complaint under the “relate back” rule to assert certain “non-medical practice” claims, in addition to the earlier-asserted malpractice claim (which the court held was not subject to the intervening changes to the West Virginia malpractice statute, which reduced the amount of recoverable non-economic damages).

Litigation Center Involvement

The Litigation Center, the West Virginia State Medical Association, and several public interest organizations filed an amicus curiae brief supporting defendants Camden-Clark Memorial Hospital, United Anesthesia, Inc., and Manish I. Koyawala, M.D. The brief contended that Mr. Boggs lacked standing (in view of the lack of any harm suffered) to challenge the constitutionality of the medical liability reforms.

Supreme Court of Appeals of West Virginia brief

Edwards v. The Sunrise Ophthalmology ASC, LLC (Fla. S.Ct.)

Also under Expert witnesses, Professional liability

Issue

The issue in this case is whether a specialist in infectious diseases was qualified under the Florida Malpractice Law, FL Stats. § 766.102, to testify as an expert witness in a suit brought against an ophthalmologist for medical negligence.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have education, training, and experience or board certification in the same field as a defendant specialist physician.

Case summary

Marianne Edwards underwent plastic surgery on her eyelid. She subsequently contracted a bacterial infection in her eyelid, where the surgery had been performed. This resulted in her having to undergo additional surgery and suffering disfigurement.

Ms. Edwards filed a medical malpractice suit against, inter alia, her ophthalmologist, Gil A. Epstein, MD and The Sunrise Ophthalmology ASC, LLC. She contended that Dr. Epstein had breached the standard of care, because he had failed to use proper sterilization techniques during the surgery, and this caused the infection. Ms. Edwards proffered an affidavit from an infectious disease doctor to support her contention.

Dr. Epstein challenged the sufficiency of the affidavit through a motion to dismiss. He pointed out that § 766.102 requires that expert testimony offered against a specialist must be from an expert who either (a) specializes in a similar specialty as the defendant physician or (b) evaluates, diagnoses, or treats the medical condition that is the subject of the claim. Because he was an ophthalmologist, which is a distinct specialty from that of the infectious disease expert, Dr. Epstein argued that Ms. Edwards’s affidavit was insufficient.

The trial court agreed with Dr. Epstein and the complaint was dismissed as to him. Ms. Edwards appealed to the Florida District Court of Appeal. By a split decision, the District Court of Appeal affirmed. The case is now on appeal to the Florida Supreme Court.

Litigation Center involvement

The Litigation Center, along with the Florida Medical Association filed an amicus brief, which will argue against allowing the expert witness testimony of the infectious disease physician.

Florida Supreme Court brief

Meyer v. Dambro, 974 A.2d 121 (Del. 2009)

Also under Certificate of merit

Outcome:    Very favorable

Issue
The issue in this case is whether, in certain instances, the Delaware affidavit of merit law requires an extension of the statute of limitations for medical malpractice lawsuits.

AMA interest
The AMA supports the filing of a certificate of merit as a prerequisite to a medical malpractice lawsuit.

Case summary

The Delaware Supreme Court held that, with narrow exceptions, the statute of limitations for medical malpractice suits begins at the time of the negligent act or omission, rather than at the time the injury became apparent.

Litigation Center involvement
The Litigation Center and the Medical Society of Delaware filed an amicus curiae brief in the Delaware Supreme Court.

Supreme Court of Delaware brief.

Putman v. Wenatchee Valley Medical Center, 216 P.3d 375 (Wash. 2009)

Also under Certificate of Merit

Outcome:    Very unfavorable

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.

The Washington Supreme Court reversed, striking down the certificate of merit law.  It held that the law unduly burdened Ms. Putman's right of access to the courts and, because it conflicted with procedural court rules, violated the separation of powers requirement.

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

Supreme Court of the State of Washington brief.

Ryan v. Renny, 999 A.2d 427 (N.J. 2010)

Also under Certificate of merit, Expert witnesses, and Professional liability

Outcome:    Very unfavorable

Issue

The issue in this case was whether the New Jersey medical malpractice expert testimony/affidavit of merit law should be narrowly construed to allow standard of care testimony only by a physician who is board certified or experienced in the specialty of the physician being sued except in extraordinary circumstances or whether the board certification/experience requirement can be waived without a full explanation.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have comparable education, training, and experience or board certification in the same field as a defendant physician.

Case summary

Andrew Renny, MD, a board certified gastroenterologist, performed a colonoscopy on Abby Ryan. Allegedly, this was done negligently, and he perforated her bowel. She and her husband sued Dr. Renny for medical malpractice.

In New Jersey, a plaintiff in a medical malpractice suit must, within 60 days of the filing of the answer to the complaint, submit an affidavit of merit, which is to attest that the care provided by the defendant fell outside acceptable professional standards. The person who signs the affidavit must demonstrate expertise in the medical procedure at issue, as evidenced by board certification or by a specialized area of practice. If good cause is shown, the court can extend the 60 day deadline by an additional 60 days. However, a court has discretion to waive these testimonial requirements, upon motion, if the moving party (a) demonstrates an inability to obtain an otherwise suitable expert after a good faith effort to find one and (b) secures another physician to sign the affidavit or provide the testimony, even though the substitute physician is not a specialist in the area of practice, so long as the substitute expert has “sufficient training, experience and knowledge” to testify.

In their suit against Dr. Renny, the Ryans submitted an affidavit signed by a general surgeon, who was not board certified in gastroenterology and had not performed a colonoscopy in several years. The general surgeon’s affidavit asserted that he was knowledgeable in issues involving colonoscopies and perforated bowels.

Dr. Renny moved to dismiss the complaint, because the affidavit failed the specialization requirements of the New Jersey statutes. In response, the Ryans’ attorney advised the court that he had contacted three gastroenterologists, all of whom “declined to provide an opinion relating to the actions of the defendant Andrew Renny, M.D.” Following these efforts, the attorney secured the general surgeon’s affidavit. After hearing oral argument, the trial judge waived the specialty requirement and denied the motion to dismiss the complaint. Dr. Renny appealed the denial of the motion to dismiss to the Appellate Division of the New Jersey Superior Court.

The Appellate Division found that the affidavit of merit law had been passed to weed out unmeritorious medical malpractice lawsuits at an early stage of the proceedings. For that reason, the law required an affiant to possess the higher qualifications of a specialist or sub-specialist, rather than those of a generalist. That purpose could be defeated if a plaintiff could obtain a waiver merely by showing that specialists in the area were unwilling to sign an affidavit of merit, without an explanation for their unwillingness. Examples of possibly satisfactory explanations might be a conflict of interest, a practice of refusing to become involved in litigation as an expert witness, or a refusal to travel outside a limited geographic area. With such an explanation, the trial court might then consider whether the affidavit or testimony of the generalist would suffice.

Here, no explanation had been given for the gastroenterologists’ refusal to sign the Ryans’ affidavit of merit. Accordingly, the Appellate Division held that the trial judge should have granted the motion to dismiss. The Appellate Division reversed the order granting the waiver and directed that the complaint be dismissed.

The Ryans appealed to the New Jersey Supreme Court. The Supreme Court, in a split decision, reversed. It found that the Ryans' attorney had made a good faith effort to find a gastroenterologist willing to testify, and that was sufficient to satisfy the first part of the waiver requirement, regardless of the reasons why the gastroenterologists refused to testify. Further, the general surgeon was sufficiently familiar with colonoscopies to satisfy the second part of the waiver requirement. The case was remanded to the trial court for further proceedings.

Litigation Center involvement

The Litigation Center and the Medical Society of New Jersey filed an amicus brief in the New Jersey Supreme Court to support Dr. Renny and urge a narrow interpretation of the statutory waiver provision.

Supreme Court of New Jersey brief.

Sullivan v. DeJong (Ill. App. Ct. 2003)

Also under Abusive litigation against physicians, Certificate of meritExpert witnesses, Professional liability, and Tort reform

Outcome:    Somewhat unfavorable

Issue
The issue in this case was whether a physician who has been sued for medical malpractice pursuant to the certification of another physician can learn the identity of the physician who certified that he committed the alleged malpractice.

AMA interest
The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary
William Sullivan, D.O. was an emergency room physician. When Mary Weiland was seriously injured in an automobile accident, she was brought to the hospital emergency room and was immediately attended by the hospital’s trauma team, which did not include Dr. Sullivan. Due to various medical complications, the trauma team was unable to insert an intravenous needle in Mrs. Weiland. Because Dr. Sullivan was experienced in obtaining the necessary central venous access, the trauma team asked him to insert an emergency central venous catheter in her. He did this successfully. That was the only procedure he had been asked to perform for Mrs. Weiland. Subsequently, Mrs. Weiland died.

Mrs. Weiland’s estate then brought a wrongful death action against ten osteopathic physicians (including Dr. Sullivan), one allopathic physician (i.e., an M.D.), two nurses, and the hospital. The estate alleged that Dr. Sullivan and the other physicians had failed to (i) diagnose that she had been suffering from internal bleeding, (ii) interpret her CT scan properly, (iii) appreciate the signs and symptoms of shock, and (iv) perform necessary surgery and other treatments relating to her bleeding.

Pursuant to Illinois law, 735 ILCS § 5/2-622, Mrs. Weiland’s estate affixed a statement to the complaint, allegedly signed by an experienced trauma surgeon, which asserted that “a reasonable and meritorious cause exists for filing a suit against [the physicians and the hospital] for failing to appreciate the signs and symptoms of hypovolemic shock, and of internal bleeding, and for failing to surgically repair the bleeding.” Also pursuant to Illinois law, the trauma surgeon’s name was not shown on the report.

The trial court dismissed most of the defendant physicians on motion. The plaintiff’s law firm offered to dismiss Dr. Sullivan voluntarily, without prejudice (i.e., leaving open the possibility of plaintiff filing another suit against him), but Dr. Sullivan refused. He said that he was going to be dismissed with prejudice (i.e., foreclosing the possibility of a similar future lawsuit) or not at all.

Dr. Sullivan then filed an affidavit and a motion to be dismissed from the Weiland case. He stated that, although he had been the hospital emergency physician on duty, Mrs. Weiland was not primarily his patient. Rather, she was considered a “trauma code” patient. Trauma code patients are registered under the trauma service attending physician and are exclusively managed by the trauma team. Upon presentation of the affidavit, the trial court dismissed Dr. Sullivan with prejudice.

Dr. Sullivan, acting as his own attorney, then sued Mrs. Weiland’s lawyer for malicious prosecution. He also sued “Dr. Doe,” the unnamed trauma surgeon. His complaint charged that, had Dr. Doe properly investigated the medical records and the circumstances surrounding Mrs. Weiland’s emergency department care, he would have seen that the allegations raised against Dr. Sullivan and at least four of the other physicians were made without reasonable cause. He also alleged that Dr. Doe’s report had been made in reckless disregard for the truth, and “in bad faith.” According to Dr. Sullivan, an experienced trauma surgeon should have recognized that he was not a part of the trauma team, and that his role in Mrs. Weiland’s care was, under accepted medical practice, limited to the insertion of the intravenous catheter. Further, Dr. Sullivan alleged that had he attempted to make the diagnoses and perform the surgery that Dr. Doe claims he should have provided, it would have interfered with Ms. Weiland’s care.

After he filed his complaint, Dr. Sullivan filed a verified petition for discovery, as part of the same lawsuit. In this petition, he indicated that he had asked Mrs. Weiland’s law firm to disclose Dr. Doe’s identity but the law firm had refused to do so. Mrs. Weiland’s law firm moved to dismiss the complaint and the petition for discovery, and the trial court granted the motion.

Dr. Sullivan appealed. His appellate brief concentrated on his right to learn Dr. Doe’s identity, so that he could ascertain whether Dr. Doe was, in fact, an experienced trauma surgeon and whether Dr. Doe had some basis for his charge that Dr. Sullivan had failed to care properly for Mrs. Weiland.

Mrs. Weiland's former attorney filed an answer brief, and the Illinois Trial Lawyers Association filed an amicus curiae brief opposing Dr. Sullivan. Dr. Sullivan then filed a reply brief.

The Illinois Appellate Court, without hearing oral argument, affirmed the trial court decision against Dr. Sullivan. In an extensive and carefully worded decision, it held that his legal arguments were essentially correct, but he had not been sufficiently specific in his factual statements to the lower court. Thus, Dr. Sullivan was correct in principle, but he lost on a procedural technicality. If the opinion were to be published, it would essentially serve as a blueprint for how Illinois physicians can sue an expert witness who signed a certificate of merit in bad faith. A physician then would be able to use more effectively Dr. Sullivan’s general legal theories in the setting forth of facts.

However, the Illinois Appellate Court issued its order in an unpublished format, so the decision is neither known to the legal or medical community nor citable as precedent in other cases. Dr. Sullivan filed a motion for reconsideration, urging the Appellate Court to publish its order, but that motion was denied.

Litigation Center involvement
The Litigation Center engaged an experienced lawyer to represent Dr. Sullivan in his appeal.

Summerville v. Thrower, 253 S.W.3d 415 (Ark. 2007)

Also under Certificate of merit

Outcome:    Somewhat unfavorable

Issue

This case addressed the constitutionality of the Arkansas affidavit of merit law, which applied 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 stated: "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 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.

Arkansas Court of Appeals brief.