New York law requires plaintiffs in medical malpractice cases to file a Certificate of Merit, a procedural step that can significantly impact your case.
What Is a Certificate of Merit?
In New York, a Certificate of Merit is a mandatory procedural requirement for medical malpractice lawsuits. Under CPLR § 3012-a, when you file a medical malpractice claim against a licensed physician, dentist, podiatrist, chiropractor, or hospital, your attorney must file a Certificate of Merit along with the complaint or within 90 days of filing.
This certificate is a statement by your attorney affirming that they have consulted with at least one licensed physician who practices in a field relevant to your claim, and that this physician has provided a written opinion that there is a reasonable basis to believe that malpractice occurred. The consulting physician’s identity does not need to be disclosed at this stage.
The purpose of this requirement is to discourage frivolous medical malpractice lawsuits by ensuring that a medical professional has reviewed the case before it proceeds. However, it does not require your attorney to prove the case at the outset—only that there is a reasonable basis to pursue the claim based on expert medical review.
When and How Must the Certificate Be Filed?
The timing requirements for filing a Certificate of Merit are strict. Your attorney must file the certificate either simultaneously with the complaint or within 90 days after the lawsuit is commenced. If the certificate is not filed with the complaint, your attorney must include a notice with the complaint stating that a certificate will be filed within the 90-day period.
There are limited exceptions to this requirement. A Certificate of Merit is not required if:
- The defendant has made an admission establishing liability
- The claim involves lack of informed consent only (not negligent treatment)
- The action is brought against a municipal corporation or public authority
- Your attorney cannot obtain the required consultation despite making good faith efforts, in which case the attorney may file a statement explaining why consultation was unattainable
Failure to timely file a Certificate of Merit can result in dismissal of your case. Courts have dismissed medical malpractice actions for non-compliance with this requirement, though in some circumstances, judges may allow an opportunity to cure the deficiency if there was a reasonable excuse for the delay.
How Does This Affect Your Medical Malpractice Case?
For you as a potential plaintiff, the Certificate of Merit requirement means that an experienced personal injury attorney will need to undertake a preliminary investigation of your case before even filing the lawsuit. This typically involves obtaining and reviewing your medical records and having them evaluated by a qualified medical expert.
This requirement can actually benefit you in several ways. First, it helps ensure that your case has merit before you invest time and resources in litigation. Second, having an expert review your case early can help your attorney better understand the strengths and weaknesses of your claim and develop an effective legal strategy. Third, it demonstrates to the defendant and their insurance company that your case has been vetted by a medical professional, which can strengthen settlement negotiations.
However, this requirement also means that pursuing a medical malpractice claim requires upfront work and expertise. It underscores the importance of working with an attorney who has experience in medical malpractice cases and established relationships with qualified medical experts who can review cases and provide the necessary opinions. The certificate requirement is just one of several procedural complexities unique to medical malpractice litigation in New York, which is why these cases typically require specialized legal knowledge.
Frequently asked questions
Does filing a Certificate of Merit mean my case will definitely succeed?
Does filing a Certificate of Merit mean my case will definitely succeed?
Will I know the identity of the expert who reviewed my case for the Certificate of Merit?
Will I know the identity of the expert who reviewed my case for the Certificate of Merit?
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Attorney Advertising. This article is general information, not legal advice, and does not create an attorney-client relationship. Every case is different; prior results do not guarantee a similar outcome. For advice about your situation, contact Alan Ripka & Associates, LLP at 212-557-4777 for a free consultation.
