Understanding How the Affidavit of Merit Requirement Applies to Medical Negligence Claims

When you go in for a medical procedure or see a doctor about symptoms affecting your quality of life, you expect accurate and thorough medical care. However, for thousands of patients in Delaware and the rest of the United States, this doesn’t happen. It’s true that healthcare providers are only human, and they can and will make mistakes or miss things. However, they have the ethical duty to follow the recognized standard of care. If a medical error results from failing to provide this standard of care, the patient may have a medical malpractice claim, known as medical negligence in Delaware.

These lawsuits can be complex, and Delaware has specific requirements for what must be included in a medical malpractice claim. One such requirement is an affidavit of merit. Working with an attorney can ensure you understand this requirement, how it applies to your case, and what information you must provide to file your claim.

What Is the Affidavit of Merit?

An affidavit or merit is a document from an appropriate expert that states that there exist “reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant.” In simpler terms, it’s a sworn statement from a medical professional that they believe your situation may involve medical malpractice. The Delaware courts require that an affidavit of merit accompany most medical malpractice claims, and that the affidavit remain sealed and confidential. 

An affidavit of merit may not be necessary if the case includes a rebuttable inference of medical negligence. This can generally only be established by three scenarios:

  • The plaintiff claims that a surgical procedure was performed on the wrong person or the wrong body part
  • The plaintiff claims there was an explosion or fire that started due to a substance used during a treatment
  • The plaintiff claims that a foreign object was mistakenly left in the patient’s body during surgery

The first step in determining if you need an affidavit of merit for your claim is to talk to a medical negligence attorney. If an affidavit is required, they can help you find someone who qualifies as an expert witness to evaluate your case and sign the document. 

What Is the Purpose of an Affidavit of Merit?

In Delaware, medical malpractice cases did not always require an affidavit of merit. The requirement was added in 2003 to reduce the number of so-called “frivolous lawsuits” against medical practitioners. The rationale behind this decision was that patients and their families don’t always understand what the recognized standard of care is in healthcare. They may believe that a healthcare provider has been negligent when, in fact, the provider did everything according to medical standards. 

Requiring the affidavit of merit adds an extra layer of legitimacy to the plaintiff’s claim because it has been reviewed by a medical professional who is knowledgeable about the recognized standard of care. It’s important to understand, however, that obtaining an affidavit of merit doesn’t mean that you’re more likely to win your case, and it’s not admissible in court. You will still need to prove negligence by the defendant through other evidence to win your case.

Who Can Provide an Affidavit of Merit?

An affidavit of merit must be signed by an appropriate expert, and Delaware Code sets forth specific qualifications for this. The expert must:

  • Have an active medical license as of the date they signed the affidavit
  • Have actively treated patients or served in a teaching or academic role in the three years before the alleged negligence occurred — these roles must also be in the same field as the defendant or a similar one

In cases where the listed defendant is Board Certified in their field, the expert witness signing the affidavit of merit must also be Board Certified in a same or similar field, unless they began practicing before the certification existed for that field. 

How Long Do You Have to Get an Affidavit of Merit?

In most cases, plaintiffs have two years to file a lawsuit for medical negligence in Delaware. However, there may be some exceptions if the injury was not able to be discovered during that time. An example of this might be a foreign object left behind during surgery. If the object isn’t found until an X-ray or other test after two years have passed, the plaintiff may have more time to file. 

Because the affidavit of merit needs to accompany the filing, plaintiffs would, in theory, have two years to obtain the affidavit. In some cases, it’s possible to get an extension for the affidavit — generally for 60 days — but this extension doesn’t apply to the case filing itself. Extensions are for very limited circumstances, however, such as not being able to obtain relevant medical records for the expert to review.

While two years may seem like a long time, it’s imperative that you talk to an attorney as soon as possible once you’re aware you’ve been a victim of medical negligence. It can take time to find an expert in the same field, and they will also need adequate time to review your records and make a determination.

If you suffered damages as a result of a medical error, you need to understand your rights and options for holding care providers accountable. Contact Schwartz & Schwartz, Attorneys at Law, P.A., by calling 855-847-8437 to schedule a case review.