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Proving your claim is meritorious: an important aspect of medical malpractice litigation

In our last post, we looked briefly at the requirements state law places upon expert witnesses in medical malpractice litigation. We looked at those requirements in the context of discussing the credibility of physicians who serve as expert witnesses and who sign off on affidavits of merit. These are, of course, separate issues, though they are certainly related.

In New Jersey, an affidavit of merit is required in every medical malpractice case in which damages are sought, which is essentially every case. The affidavit, which must be filed within 60 days of the plaintiff's receipt of the defendant's answer to the complaint, is aimed at assuring the court that the plaintiff is able to articulate a valid medical malpractice claim. The aim isn't to argue the case to the court, but to simply show the court that it is worth its time to allow the case to proceed so that fact-finding and legal argumentation can take place. 

An affidavit of merit must demonstrate that there is a "reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." In other words, the plaintiff must show it is more likely than not that the physician failed to meet the accepted standard of care, whatever that might be in the case.

The standard of care is precisely the issue that expert witnesses are often called to weigh in on, so it is no surprise that the qualification requirements are essentially the same for affidavits of merit and expert testimony. Selecting an appropriate expert witness, as well as selecting an appropriate physician to get behind an affidavit of merit, should be done with care and attention to the central issues in each case, and an experienced attorney will know exactly how to do this in each case to ensure a patient has the best possible chance to prove liability at establish damages in court. 

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