Personal Injury Cases: Moving on to Better Things

Two Reasons A Medical Expert May Decline To Write Your Affidavit Of Merit

You have the right to sue a healthcare professional for medical malpractice if something the person did resulted in you being injured. Unfortunately, some states make you jump through hoops to get your case before a judge, one of which is requiring you to submit an affidavit of merit signed by an expert stating your injury claim is valid. Although it may seem like this would be the easiest part of your case, there are times when a medical expert may decline your request. Here are two reasons why this may occur and what you can do about it.

The Expert Is Not Convinced

Possibly the most common reason a medical expert may refuse to fill out an affidavit of merit is he or she is not convinced the healthcare provider did anything wrong or, at least, feels the evidence doesn't support your malpractice claim.

An affidavit of merit requires a medical expert to:

  • Indicate what the standard of care is for that particular situation
  • State the defendant didn't adhere to the standard of care
  • Show how the healthcare provider failed to administer proper care
  • Show how the breach was the approximate cause of your injury

If the expert is unable to do one or more of these things after reviewing your medical file and supporting evidence, then he or she will likely decline to complete the affidavit.

For instance, the defendant may have performed an uncommon procedure, but the procedure may still be considered in the realm of the standard of care, depending on the situation. While the medical expert may disagree with the tactic the defendant took, he or she couldn't truthfully say the person did something wrong.

Talk to the medical expert about his or her reasoning. You may need to scrounge up additional evidence, find a different medical expert, or rethink whether you want to continue to sue for malpractice or seek compensation using a different cause of action.

The Expert Has A Relationship With The Treating Doctor

Another reason why a medical expert may decline to fill out the affidavit is he or she may be uncomfortable testifying against another person in the same profession.

Healthcare providers, particularly those in the same specialties and geographical areas, tend to travel in the same professional and social circles. It's not unusual for doctors, nurses, et al to know each other. Unfortunately, if the medical expert has a professional or personal relationship with the defendant, then he or she may not want to risk that affiliation by getting involved with the case.

There's not much you can do in this situation except to find a different medical expert. If you're having trouble locating anyone in your area who will help you, then you may need to approach someone in another city or state.

If you need help getting an affidavit of merit for your medical malpractice lawsuit, contact a personal injury attorney like those at LeBaron & Jensen, P.C.