Certificates of Merit: Should They Be Required?

The Pop Tort rages about the certificate of merit requirement that many states have in medical malpractice cases, citing a particularly onerous Connecticut merit requirement. The Pop Tort cites a news article of an awful injustice done to a woman who had her medical malpractice lawsuit dismissed.

After a long ride to the end of the article, we find out what the grave injustice was. The plaintiff sued her doctors for alleged breach of contract and infliction of emotional distress — not malpractice – and the court decided she need a certificate of merit.

Personally, I’m fine with this. I think certificates of merit are actually a good thing. There is a knee jerk reaction: the certificate of merit makes it hard for plaintiffs and their lawyers to bring lawsuits. But not all things that are made harder are bad thing. I know that there are some meritorious cases that don’t make the cut because discovery is needed to get the information for the cerftificate of merit in the first place. But good lawyering can find a way around that problem, at least in Maryland.

The upside for medical malpractice victims is that there are less cases filed by a pro se plaintiff who is just mad at their doctor and does not have real evidence that could ever support a verdict. In states where there is no certificate of merit, the local paper with nothing else to write about always fires out a story about the poor doctor who got hit with a frivolous lawsuit. The absence of these stories provides an indirect but meaningful benefit to malpractice plaintiffs: less polluted juries and less stupid, irrelevant anecdotes to march in front of the Maryland General Assembly.

Please note: I could be completely wrong about this. Maybe certificate of merits keep out too many good cases than the PR upshot we get. But I think I’m right and I think the knee jerk “if it is hard for plaintiffs, it must be bad” colors the opinion of plaintiffs’ lawyers more often than it should.