An affidavit of merit is a sworn statement, required by 18 Del. C. § 6853, that must accompany most Delaware medical malpractice complaints. It confirms that a qualified medical professional has reviewed the case and has concluded there are reasonable grounds to believe a healthcare provider breached the standard of care and caused the injury.
Delaware, like several other states, requires plaintiffs in medical malpractice cases to obtain qualified medical review before filing suit. The mechanism for that requirement is the affidavit of merit, and failing to comply can result in dismissal of the case.
The Detailed Answer
The affidavit of merit requirement is found in 18 Del. C. § 6853. It is intended to weed out unsupported malpractice cases at the very beginning of litigation by requiring a qualified medical opinion before the complaint is even filed.
What the Affidavit Must Include
Generally, the affidavit must:
- Be signed by the plaintiff’s attorney
- Confirm that a qualified medical professional has reviewed the relevant medical records
- State that, in the qualified professional’s opinion, there are reasonable grounds to believe the defendant breached the applicable standard of care and caused the alleged injury
- Be supported by a written, signed report from the qualified medical professional, attached or submitted as required
Who Qualifies as the Reviewing Professional
The reviewing medical professional generally must be licensed in good standing, have practiced or taught in the same or similar field as the defendant, and meet the statutory requirements for qualifications. The exact requirements depend on the type of provider being sued (physician, nurse, hospital, etc.).
Filing Procedure
The affidavit and supporting opinion must be filed with the complaint, although the substantive medical opinion is typically reviewed by the court in camera (in chambers, not part of the public record). This protects the medical professional’s identity in the early stages.
Consequences of Non-Compliance
Filing a medical malpractice complaint without the required affidavit of merit can result in dismissal. Courts apply the requirement strictly, although limited extensions may be available in defined circumstances.
What This Means for Your Case
The affidavit of merit requirement is one of the main reasons Delaware medical malpractice cases require significant time and investment up front. Before a complaint can even be filed, the law firm typically must:
- Obtain complete medical records from all relevant providers and facilities
- Identify a qualified medical professional in the appropriate specialty
- Have that professional review the records and write an opinion
- Coordinate the timing so the affidavit is ready before the statute of limitations expires
This process can take months. If you believe you have a malpractice claim, do not wait until close to the statute of limitations to contact a lawyer.
Related Questions
Q: Who pays for the medical professional’s review?
The plaintiff’s law firm typically advances these costs, which are then reimbursed from any recovery as part of the contingency fee arrangement.
Q: Can the case be filed without the affidavit if time is running out?
Limited circumstances may allow extensions, but relying on them is risky. The safer approach is to engage counsel early.
Q: Does the affidavit get shown to the defendants?
Procedural rules limit early disclosure of the underlying medical opinion, although the affidavit itself is filed with the complaint.
Why Delaware Requires the Affidavit
The affidavit of merit requirement was enacted to address concerns about meritless medical malpractice cases. The legislative goal was to require qualified medical screening before a complaint is filed, so that providers and facilities are not forced to defend cases that lack any qualified medical support. While the requirement adds cost and complexity for plaintiffs, it also tends to focus litigation on cases with real merit.
What the Reviewing Professional Examines
To form a reliable opinion, the reviewing medical professional typically reviews:
- Complete medical records from the defendant provider and facility
- Records from prior and subsequent treatment
- Imaging studies, pathology slides, and lab results
- Operative reports, anesthesia records, and discharge summaries
- The patient’s account of the events, where relevant
Based on this review, the professional forms an opinion on whether the defendant breached the standard of care and whether the breach caused the alleged harm.
Common Pitfalls With Affidavits
Pitfalls that can undermine the affidavit of merit include:
- Using a reviewing professional who does not meet the statutory qualification requirements for the specialty involved
- Submitting an affidavit without an underlying written report from the professional
- Filing too close to the statute of limitations to allow for any procedural correction
- Failing to address all defendants in the complaint with appropriate qualified opinions
Each of these can lead to dismissal of the case or of specific defendants.
When to Talk to a Delaware Medical Malpractice Lawyer
Because of the affidavit of merit requirement and tight deadlines, anyone considering a Delaware medical malpractice claim should consult counsel as early as possible. Schuster Jachetti LLP has experience handling Delaware medical negligence cases. Learn more about Delaware medical malpractice, the definition of malpractice, statute of limitations, and proving a malpractice case.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.