Commercial Litigation Update

To diminish the number of frivolous lawsuits that patients file against doctors and hospitals, 28 states require that a plaintiff submit an affidavit or certificate of merit when they file a medical malpractice case. The specific requirements vary state-to-state, but generally they require the plaintiff to attach an affidavit from one or more physicians, who must affirm that they reviewed the patient’s medical records; that they believe the defendant-providers breached the applicable standard(s) of care; and that they believe the breach harmed the patient.

In this context, a question often arises: How similar must the affiant’s expertise be to the defendant’s? These requirements also vary state-to-state, but many state statutes and rules of evidence condition an expert witness’s competency to testify – or to complete an adequate affidavit of merit – upon that expert’s credentialling or practicing in a specialty that is similar to the defendant’s. For instance, a New Jersey statute specifies, in relevant part, that if the defendant is: