Sample Medical Malpractice Expert Certificate of Merit

Below, you will find a sample Certificate of Merit. We provide this sample to assist malpractice lawyers in understanding the essential components and detailed analysis required for such certificates.

Thoughts on Filing a Certificate of Merit

Malpractice claims are treated differently than other personal injury cases in Maryland. To bring a health care negligence lawsuit, the plaintiff must follow specific procedures before a claim can be filed in court. The procedure to file medical malpractice in Maryland is someone complicated.

First, a plaintiff must obtain a certificate of merit from a medical doctor to accompany the claim (see a sample malpractice claim here) that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. In other words, this rule requires the filing of a certificate of merit in every medical malpractice lawsuit showing the case has solid facts supporting a legal judgment.

This requirement is to prevent frivolous medical claims from being filed in Maryland. Other states have similar rules. The rule is probably unnecessary.

Why? It is economic suicide to bring medical provider error cases that lack merit. (There may be, however, a value in requiring a certificate of merit to weed out cases that have not been vetted by a medical malpractice attorney; in 1987, the year after the certificate of merit requirement was adopted in Maryland, medical malpractice filing rates dropped in the state by 36%.)

The necessary qualifications of the expert medical doctor vary with the subject matter of the particular claim. Under our law, the preliminary requirement for medical doctor who executes a certificate of merit is that: 1) they have clinical experience, 2) provided consultation relating to clinical practice, 3) taught medicine in the defendant’s specialty or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, the doctor must also be board-certified in the relevant area of medicine.

Three Certificate of Merit Requirements

The certificate of merit must contain three elements:

1. Where the doctor is licensed to practice;

2. An opinion within reasonable degree of medical probability that the treating doctor departed from the applicable standard of care in treating the plaintiff and that there was damage from the breach of the appropriate standard of care;

3. That the doctor does not devote annually more than twenty percent (20%) of his professional activities to activities that directly involve testimony in personal injury claims.

Unless, within 90 days after the filing of a health care medical malpractice claim, the plaintiff files with the Health Claims Arbitration Office (before filing a lawsuit the usual court system) a certificate of a qualified expert attesting that a defendant’s conduct constituted a departure from the standard of care and that the departure was the proximate cause of the alleged injury, the malpractice claim must be dismissed with prejudice.

You must also identify on the certificate of merit the doctors or other negligent health care provider who allegedly deviated from the standard of care. The message is, as always, bring your malpractice case long before you are on the heels of the statute of limitations so you do not have a problem doing the necessary discovery to find all of the potentially negligent parties. If you look at filed malpractice cases in Maryland, you will find that most lawyers wait until the statute of limitations is just about to pass.  It is a terrible time to file a lawsuit.

Another key is proximate cause.  Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a physician, nurse, clinic or hospital using ordinary care would have foreseen that the event or some similar event might reasonably result therefrom.  But it is important to keep in mind that a there may be more than one proximate cause of an event. The threshold in Maryland is whether the conduct was a substantial contributing cause of the injury.

Certificate of Merit Advice

A few additional thoughts:

Sample Certificate of Merit in a Malpractice Lawsuit

HESTER PRYNNE
Claimant

v.

UNITED STATES RADIOLOGY SERVICES
and
ROGER CHILLINGWORTH, M.D.
Health Care Providers

Certificate of Qualified Expert

Arthur Dimmesdale, M.D. hereby certifies as follows:

I, Arthur Dimmesdale, M.D., am a licensed physician, board-certified in Radiology, the same specialty in which Health Care Provider Roger Chillingworth, M.D. is certified. I have a particular interest in ultrasonography and am a Professor of Radiology at Boston University Medical Center. My clinical experience, consultation work, and teaching within the past five years cover radiology in general and, specifically, ultrasonography. My experience includes working with and supervising non-physician sonographers. Radiology and ultrasonography are the medical fields practiced by the Health Care Providers involved in this matter, specifically United States Radiology Services and Roger Chillingworth, M.D., through their agents, servants, and employees.

I have reviewed the obstetrical ultrasound performed by the Defendants on Hester Prynne on December 10, 2022, and the report of that study. Additionally, I have reviewed the obstetrical ultrasound and its interpretation from February 18, 2023, conducted at 19.8 weeks gestation, along with the report of that study, including the fetal anatomy survey. On February 18, 2023, the fetal anatomy survey and the report listed M. Hibbins as the “sonographer” and Roger Chillingworth, M.D. as the “physician” of United States Radiology Services stationery.

Further, I have examined the following records from Sinai Hospital of Baltimore:

• Report of head CT from December 24, 2023
• Neurologic consultation by Beverly Crusher, M.D., from July 1, 2024
• Report of MRI of the head/brain from December 18, 2023

Additionally, I reviewed Hester Prynne’s prenatal records, including blood tests, amniocentesis results, and genetic counseling notes, to understand the context of her prenatal care. I also reviewed the communication logs between United States Radiology Services and the referring obstetrician, highlighting potential gaps in the communication of critical findings.

Based on my review of these medical records and radiologic films and drawing on my education, training, experience, expertise, and knowledge of the facts of this case, it is my opinion, with a reasonable degree of medical probability, that the care provided to Hester Prynne by United States Radiology Services and Roger Chillingworth, M.D., through their agents, servants, and employees, deviated from the applicable standard of care.

More specifically, they negligently performed, interpreted, communicated, and/or documented the December 18, 2023, obstetrical ultrasound and fetal anatomy survey. Had the lateral ventricles of the fetal brain been properly imaged and interpreted, and the findings communicated and/or documented, semi-lobar holoprosencephaly, a severe congenital brain disorder, would have been promptly diagnosed. The ordering obstetrician and the patient would have been informed of the congenital brain abnormality, enabling informed consent, counseling, and the option to terminate the pregnancy.

Moreover, there was a failure to follow up on abnormal findings noted in the initial ultrasound, and the absence of a second opinion or further imaging studies compounded the oversight. With a reasonable degree of medical probability, the lapses in standard care by the United States Radiology Services and Roger Chillingworth, M.D., directly and through their agents, servants, and employees, proximately caused Pearl Prynne to be born with semi-lobar holoprosencephaly. This has led to extraordinary expenses for medical care, specialized therapies, and adaptive equipment, as well as significant emotional and mental suffering for her parents.

Attached is a detailed report of my opinion, which is incorporated herein. My opinions are expressed with a reasonable degree of medical probability. Less than 20% of my annual professional activities involve testimony in personal injury claims.

Tips for Filing a Certificate of Merit in Maryland

Understand the Legal Requirements

• Maryland law requires a Certificate of Merit to be filed in any medical malpractice case to show that the claim has merit.
• The certificate must be signed by a qualified medical expert who attests that the defendant healthcare provider failed to meet the applicable standard of care and that this failure caused harm to the patient.

Choose a Qualified Expert:

• Ensure that the medical expert is qualified in the same field as the defendant healthcare provider. So, for example, if the defendant is a cardiologist, your expert should also be a board-certified cardiologist. There is a lot of law out there about when you can offer expert testimony in related specialties.  Why play with fire if you can avoid it? You are better off finding someone board-certified in the same thing as the defendant.  If the defendant was practicing outside of their practice area, you should get experts in both.
• The credibility of the expert witness is paramount. Choose someone with substantial experience, a strong professional reputation, and a history of providing clear and persuasive testimony. Remember you have an audience of two: the hospital or insurance company and a jury.

Detailed Expert Review:

• The expert should conduct a comprehensive review of the medical records and provide a detailed analysis of how the standard of care was breached.  The number one way an expert gets burned?  Not doing what the should have done before offering their opinion.
• Do not forget causation. The expert’s opinion should clearly link the breach to the harm suffered by the patient.

Timely Filing:

• The Certificate of Merit must be filed within 90 days of filing the initial complaint.  Just file it with the complaint, there is no reason to wait.

Format and Content:

• The certificate must include a written report from the expert detailing their findings and conclusions.
• Ensure that the report is clear, concise, and addresses all relevant aspects of the standard of care and causation.

Affidavit of Qualified Expert:

• Alongside the Certificate of Merit, file an Affidavit of Qualified Expert.
• This affidavit should state the expert’s qualifications and their opinion that the standard of care was breached.

More Samples and Information

• Another Sample Expert Report (report for a certificate of merit in Maryland)
  • Who Can Offer a Certificate of Merit? (discussion of the 20% rule in Maryland malpractice cases)
  • Requirements for Certificate of Merit in Maryland Malpractice Cases
• Waiving Health Claims Arbitration (how to do it – sample pleading)
• Sample Attorney Deposition of Medical Malpractice Doctor (defendant’s deposition)
• Sample Attorney Deposition of Defendant Doctor’s Medical Expert (defendant’s expert)
• Sample Medical Malpractice Complaint (sample Maryland med mal complaint)
• Sample Medical Malpractice Pre-Trial Statement (defendant’s pretrial statement)

More Information on Malpractice

• Medical Malpractice in Maryland (explanation of medical malpractice process in Maryland)
• Maryland Medical Malpractice Lawyer Blog (blog discussing medical malpractice issues)
• Medical Malpractice Frequently Asked Questions (FAQ’s for medical malpractice victims)
• Providing Help to Other Lawyers (most of our medical malpractice cases come from referrals from other lawyers. Learn how you can still collect a fee while transferring primary responsibility for your case to us)