Before you can file a lawsuit against a medical professional for negligent actions in Illinois, the law requires you to get an affidavit of merit for medical malpractice. This affidavit shows proof to the court that you have consulted with another medical professional who is qualified to serve as a medical expert in your case.
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What Is an Affidavit of Merit?
An affidavit of merit is a signed document used in medical malpractice cases to confirm that the case has merit. In Illinois, it is required in the medical malpractice claims process. The document states that a medical expert has reviewed the plaintiff’s case and agrees that the defendant fell short of the applicable standard of medical care for the patient. An affidavit of merit requires the medical expert to declare under oath that the injured patient’s lawsuit against the healthcare provider has merit. The affidavit also helps prevent frivolous claims and ensures that only valid medical malpractice lawsuits proceed to court.
A typical affidavit of merit example includes:
- A statement of the expert witness’s qualifications
- A statement that the expert witness is familiar with the acceptable standard of medical care
- A statement that the expert witness has determined that the defendant’s conduct failed to meet the acceptable standard of medical care
- A statement that the failure caused the plaintiff’s injuries or damages
Medical malpractice lawsuits are subject to more complex procedural requirements than most personal injury cases. As a result, Illinois and 27 other states require a person to have an affidavit of merit before filing a medical malpractice lawsuit in court. Additionally, many other states have provisions regarding minimum qualifications for expert witnesses who testify in medical liability and malpractice cases.
Is the Medical Expert Required to Testify in Court?
The medical expert who signs your affidavit of merit is not required to testify in court if your medical malpractice case goes to trial. In some cases, medical professionals prefer not to go to court, especially if they have to testify against one of their colleagues. In other cases, a medical malpractice lawyer may sign the affidavit and state that he or she has consulted with the expert to confirm the case has merit. In most medical malpractice cases, the signed affidavit of merit is enough to file a lawsuit without the expert witness’s testimony in court. The affidavit of merit is acceptable evidence for medical professionals to be held liable for medical malpractice.
If you need help finding an expert witness for your affidavit of merit, your lawyer can help you. Medical malpractice lawyers usually have established relationships with a network of qualified medical professionals across various specialties. Your lawyer can help you find a reputable expert with experience testifying in Illinois courts. In addition to finding and vetting expert witnesses, your lawyer can handle the logistics of scheduling expert witness depositions, coordinating with the expert regarding case details, and preparing them for their courtroom testimony.
How Do I Obtain an Affidavit of Merit?
In Illinois, the Code of Civil Procedure requires that the plaintiff in a medical malpractice case must file an affidavit of merit before filing a lawsuit. If you must file an affidavit of merit for medical malpractice, your lawyer can provide or draft one for you, or you can access printable forms online. Many courts and government institutions also provide free Illinois affidavit forms that you can pick up.
How Long do I have to file an Affidavit of Merit?
According to Illinois law, anyone who files a medical negligence complaint is required to submit an affidavit that declares one of the following:
- A health professional has reviewed the facts of the case, including medical records, and determined that there is both a reasonable and meritorious cause for the lawsuit.
- The plaintiff was unable to consult with a health professional before the expiration of the statute of limitations, but the report will be filed within 90 days of filing the lawsuit.
- The plaintiff attempted to get the necessary medical records, but has not yet received them. The plaintiff will submit a health professional’s report within 90 days of receipt of the medical records.
According to Illinois laws, you have 90 days from the date you filed your complaint to get a consultation and file the affidavit of merit with the court. Once it is filed, the defendant has 30 days after the date they were served with the affidavit to respond. If your lawsuit involves more than one plaintiff, you must include a separate affidavit of merit for each defendant in the case.
If you fail to attach the affidavit of merit to your complaint, the court may dismiss your lawsuit. Failure to strictly comply with the procedural rules governing medical malpractice lawsuits in Illinois can lead to legitimate claims being dismissed.
What Are the Most Common Misconceptions About Affidavits of Merit?
Although more than half of the states in America require an affidavit of merit for medical malpractice lawsuits, there is still much debate about the need for them and why they are important. Opponents argue that state requirements for affidavits of merit have not produced the desired goals to reduce frivolous medical malpractice claims and high litigation expenses.
An affidavit of merit is a product of tort reform efforts to reduce the amount of litigation in the United States. The underlying policy was to force prospective plaintiffs to substantiate any medical claims by showing that there was a true issue of liability before filing a lawsuit. The primary goal of the affidavit of merit for medical malpractice was intended to do the following:
- weed out frivolous medical malpractice claims
- reduce the amount of settlement money paid toward questionable claims
- limit decisions based on fear of a potential lawsuit instead of professional judgment
- limit the types, amount, and cost of liability insurance
- provide better health care to patients
Protection for Patients
In the United States, surgical errors are the third leading cause of patient deaths. According to the World Health Organization, over 3 million patients die every year due to unsafe healthcare practices. Statistics show that 50% of those deaths could have been prevented. Common types of surgical errors, like operating on the wrong patient, leaving surgical instruments inside patients, and failing to treat open wounds, happen too often in hospitals and surgical centers. An affidavit of merit for medical malpractice ensures that patients harmed by negligent surgical procedures can file a medical malpractice lawsuit to recover damages.
Protection for Doctors
When patients get medical treatments and surgical procedures, they are asked to sign waivers and consent forms. These waivers are legal documents that inform patients of the benefits as well as the inherent risks of a particular medical procedure. Informed consent waivers protect doctors if something goes wrong during the procedure. Informed consent impacts medical malpractice lawsuits because patients are informed of the risks of the procedure and are allowed to ask questions before their surgery takes place.
Affidavits of merit for medical malpractice are intended to provide protection for patients and medical professionals by preventing frivolous, unsubstantiated lawsuits that cost plaintiffs, defendants, and courts a lot of time and money.
If you suspect that your illness or injury was caused by medical malpractice, take these steps to show proof:
- Get a Second Opinion – Talk to another medical professional who specializes in the field of medicine related to your illness or injury. Getting a second opinion will also provide options for further medical care and treatments.
- Get a Copy of Your Medical Records – Patients have the legal right to access, review, and obtain copies of their medical records which show office visits, doctor’s notes, medications, and lab results. Your medical records will be important in a medical malpractice lawsuit.
- Take Photos of Your Injuries – Take photos of physical injuries like wounds, bruises, scars, or signs of infection. Keep a journal that details improvements or worsening conditions that require medical treatments. Also, document how your medical condition impacts work and activities.
- Do Not Contact the Doctor in Question – If you’re considering legal action, do not contact the doctor who is responsible for your illness or injury. It can impact your medical malpractice lawsuit and alert the doctor of your plans to take action.
- Find an Experienced Medical Malpractice Lawyer – Medical malpractice lawyers know state and federal laws. They can guide you through the legal process, ensure that all deadlines are met on time, and help negotiate settlements or court trials.
If you suspect medical malpractice, contact us for a free review of your case. Our Chicago medical malpractice lawyers can help you get the compensation you need for your injuries.
