Under New York law (CPLR section 3012-a), the plaintiff must serve a certificate of merit with the original summons and complaint in medical, dental and podiatric malpractice lawsuits.  The certificate of merit is a certificate of the plaintiff’s lawyer attesting that he consulted with an appropriate expert and believes, based on that consultation, that there is a “reasonable basis” for the lawsuit. The certificate of merit does not itself demonstrate the merit of a medical malpractice claim, but merely ensures that the plaintiff’s lawyer has consulted with the appropriate expert and satisfied himself that there is a “reasonable basis” for the lawsuit.

It is not ethically permissible for a lawyer to bring a medical malpractice lawsuit without first consulting with the appropriate medical expert and satisfying himself that there is a reasonable basis for the malpractice claim. Furthermore, the plaintiff risks dismissal of his lawsuit if the certificate of merit is not filed and served with the summons and complaint. For these reasons, the plaintiff’s lawyer must always consult with a physician about the case before filing the summons, complaint and certificate of merit.

Just as importantly, it is just good practice to have a physician review the medical records and give an opinion about the merit of the case before a lawsuit is filed. Our office will often send the medical records to multiple physicians in more than one medical specialty to review the case and offer opinions as to: (1) deviations from accepted medical standards; and (2) harm caused to the injured victim as a result of the deviations from accepted medical standards (“causation”). I evaluate the medical records with the physician experts and if there is any question or doubt whether the case has merit, I will often consult with 2 or 3 experts.

The review and evaluation of potential cases by physician experts is a crucial part of a medical malpractice claim. A favorable opinion about the merit of a medical malpractice claim by a qualified physician serves as the backbone of the case and thus, it is important that the expert has evaluated the pros and cons of the case in as much detail as possible.