A certificate of merit is the result of medical malpractice tort reform. Tort reforms are laws that aim to reduce the number of frivolous medical malpractice lawsuits that clog the courts and raise insurance premiums for medical professionals. The certificate of merit has to be sent to each defendant named in the case 30 days before a medical malpractice lawsuit can be filed. Plaintiffs must obtain a separate certificate of merit for each individual named in the lawsuit.
Here's what a certificate of merit must contain in West Virginia:
- The theory of liability. You must state what happened and why the medical providers named are responsible.
- Your expert's experience in this area of medicine. Explain why the person you have engaged is an expert in this field, and how their experience relates to that area of medicine.
- Your expert's qualifications. Your expert is required to have similar training and experience as the individual who treated you initially.
- Your expert's opinion. They need to explain the standard of care involved in your treatment, and why any doctor in the field would consider the care received in your case substandard.
- An explanation of your injury. Your expert needs to be able to explain exactly how the breach of care in your case directly caused an injury.
There are some cases in West Virginia that will not require such certification. Cases where the negligence is obvious, and the violation of the standard of care would be apparent to a layperson are not required to file a certificate, but you have to submit a statement to the court stating as much. Examples include if a doctor amputated the wrong limb during a surgery, or if a surgeon left a surgical instrument behind during an operation. These are cases where the medical mistake and the harm to the patient are unmistakable.
If your case is running into the statute of limitations for filing and you don't have time to get this requirement fulfilled, you are allowed to go ahead and file the lawsuit if your certificate of merit is filed within 60 days. It can be a lengthy process since getting this information requires gathering all your medical documentation, finding an expert to review it who has the same training and experience in the same field as the defendant, and then giving that expert time to review your records and put together their professional opinion in the case.
At Bouchillon, Crossan & Colburn, L.C., our attorneys have more than 35 years dedicated to giving clients the attention, advice, support and empowerment they need to effectively meet their goals. We are committed to the principle that all persons shall have equal justice under the law. If you or a loved one has been injured and is seeking a qualified personal injury attorney, contact our Huntington, West Virginia office to speak with an attorney about your case, or call 304-523-8451.