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Certificate of Merit in a New York Medical Malpractice Case

October 30, 2019 in

In the state of New York, individuals pursuing a medical malpractice claim are required by law to have their attorneys file a certificate of merit with the original complaint. The purpose of the Statute, New York Civil Practice Law and Rules Section 3012-a, is to deter and quickly end non-meritorious claims against health care providers. If a plaintiff fails to file a Certificate of Merit within the time frame required and has also failed to meet the criteria to be entitled to an extension of time for doing so, the case may be dismissed. 

What is a Certificate of Merit?

A certificate of merit is a document certifying that the plaintiff’s attorney consulted with a medical expert who has arrived at the conclusion that the plaintiff’s action has merit. The medical expert, who is a physician, must confirm that there is a reasonable basis for the lawsuit and that the plaintiff’s health care provider deviated from acceptable medical practices, resulting in an injury to the plaintiff. The certificate of merit requirement exists for all types of New York medical malpractice cases, including but not limited to: 

  • Failing to make a correct diagnosis
  • Misreading or ignoring laboratory results
  • Performing an unnecessary surgery
  • Committing a surgical error
  • Dispensing or administering the wrong medication or dosage
  • Providing insufficient or poor follow-up or aftercare
  • Disregarding or not taking an appropriate patient history
  • Failing to order indicated tests

When there are multiple defendants named, only one certificate of merit is required. 

What Happens If I’m Unable to Obtain a Certificate of Merit?

A medical malpractice case cannot be filed in Court by a lawyer who fails to obtain a certificate of merit. If it is close to the expiration of the statute of limitations, which is 30 months in New York, and the attorney is unable to file the document with their initial complaint, the law can grant an extension of up to 90 days after the defendant is served. Additionally, an extension may be permitted if the claimant is still waiting on a complete copy of all medical records from their provider. 

If the required expert’s consultation cannot be obtained after three “good faith” attempts with three separate physicians, the attorney must include that information alongside the complaint. However, a lawyer will typically not accept a medical malpractice claim unless a doctor has already agreed to a consultation. 

Exceptions to the Certificate of Merit Requirement

Like any statute, there are exceptions. A certificate of merit is not required in cases where expert testimony would not be required, such as in claims of res ipsa loquitur.  This means the evidence blatantly proves negligence and speaks for itself. This might apply in a case of medical malpractice in which a medical instrument was left inside a patient after surgery. An additional exception to the requirement of a certificate of merit, is if the claimant represents themselves and will not be advocated for by an attorney. 

A Certificate of Merit is Not an Automatic Win

Submitting a certificate of merit with a medical malpractice complaint does not automatically mean a case will be successful. It is simply a prerequisite to filing the claim.  The process from there will only increase in complexity. The filing of a lawsuit begins the “discovery” phase of the litigation which involves gathering of documentary evidence and testimony to successfully prove that a healthcare provider was negligent and caused injury.  For these reasons, it is essential to have an experienced medical malpractice lawyer fighting for you. 

Get the Help You Need

Filing a certificate of merit is crucial in proceeding with a medical malpractice case in New York. The highly knowledgeable attorneys at Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. can help you with your claim. Contact us today by calling (212) 732-9000 and have your case reviewed for free.