Malpractice Attorney U.: Affidavit of Merit

In Malpractice Cases, the Victim’s Malpractice Attorney Must Obtain an “Affidavit of Merit.” It must come from an Expert in the Same Profession As the Professional Being Sued. An Affidavit from Someone Who Practices in a Similar Profession Is Not Good Enough.

A malpractice attorney helps victims injured by a licensed professional obtain compensation. The professional could be a doctor, accountant, dentist, architect, or engineer. (This list is not exclusive).

However, professional malpractice victims have a unique hurdle to clear. In order to maintain a malpractice lawsuit, the victim must obtain an “affidavit of merit.” This affidavit is a statement from another licensed professional. It must certify that the professional being sued has violated professional standards.

An interesting issue arose in a New Jersey case. The professional being sued was an architect. However, the victim obtained an affidavit of merit from an engineer. The malpractice attorney representing the victim argued that the expertise of engineers and architects overlapped. Therefore, on topics where there was such overlapping, an engineer should be allowed to provide the affidavit.

The trial judge agreed with the victim’s malpractice attorney. However, the architect appealed.

Appeals Court Rules Against Malpractice Attorney

The appeals court reversed the trial judge. It ruled that the affidavit had to come from someone in the very same profession as the party being sued. Normally, this would mean that the victim’s case would be dismissed. However, this was the first time a New Jersey court had decided this precise issue. Therefore, the judges allowed the victim more time to hire an architect.

Finally, I disagree with the part of the appellate court’s decision about who can provide an affidavit of merit.  People in the same profession are often reluctant to testify against each other. Therefore, The ruling does not further justice.

For example, say a doctor is accused of improperly taking a patient’s blood pressure. There is no good reason why a licensed nurse should not be allowed to provide an affidavit of merit. A nurse knows how to take a patient’s blood pressure as well as a doctor.

However, say a surgeon is accused of botching an operation. Then I would grant that only another surgeon would have the necessary expertise.

You can read the appeals court decision here.

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