Friday, July 2, 2010

Georgia does not invalidate certificate of merit requirement; Washington does

A few days ago, I argued against rules that require a plaintiff in a malpractice action to file a "certificate of merit" with the complaint. See here. The Legal Ethics Forum is now reporting that the the Supreme Court of Georgia has joined New Jersey in recognizing the validity of this type of requirement. The case is called Walker v Cromartie and it is available here. The court rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint. Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. has the story. (Thanks to the TortProf Blog for the info and the link.)


Cris Nolan said...

I read an argument written from the point of view of the healthcare providers on this matter, so I thought I'd throw it out there and see what you think about it.

Asking plaintiffs to provide a "certificate of merit" with the complaint allows the court to determine at an earlier stage of the process whether the case has merit. In order to prove a medmal case at trial, you'd be required to present evidence of the standard of care of the profession, as well as evidence of how that professional failed to live up to the standard. They argue that this prevents lawyers from filing suits with little or no merit, many of which are filed with the intent of forcing a quick settlement, rather than making a true victim of medical malpractice whole from their injuries. This "certificate," they claim, prevents attorneys from using the legal process as a type of scare tactic against the healthcare providers in order to draw out settlements they might not otherwise be entitled to. The lawyer initially threatens suit, and if the doctor doesn't pay up they then file the complaint in court (sometimes lacking in merit, but sometimes not) in order to "raise the stakes," which then requires a doctor to defend himself with his own attorney. This type of fact pattern, they argue, makes it more likely that a doctor (who may or may not have committed medical malpractice) will pay out small or mediocre settlements in order to make cases go away, rather than dealing with the legal process, or going through the hassle of hiring an expensive attorney to defend the case. Basically, they claim the law not only cuts down on meritless claims filed against the doctors, but it also protects true victims of medical malpractice from predatory "ambulance chasers," who take and dispose of cases quickly, and convince victims to take small offers, telling them "if they actually do go to court, they could get nothing."

They say real that the real victims of medical malpractice who are represented by attorneys with legitimate claims will be "wholly unaffected" by such a law, as they would be eager to prove the merits of their claim, because it would only strengthen their hand at the bargaining table.

I see the merits of the argument, but agree that the indigent plaintiff poses a special exception to the workability of such a provision. Seeing doctors, or finding professional witnesses comes at a cost. So if an indigent plaintiff does have a case, I wonder if they'd actually face discrimination by lawyers looking for a larger payday, or more "sympathetic characters."

Professor Alberto Bernabe said...

That is the argument in favor, of course. And it makes sense "on paper." The reality, however is a little different for a number of reasons. First, you have to remember that plaintiffs' lawyers take cases on a contingency basis and for that reason they are not going to take cases unless they know there is a good change of recovery and the damages are worth spending the time and money on the case. That is the first line of defense against meritless claims. Then, to the extent that some lawyers do bring frivolous claims, the "certificate of merit" requirement is "overbroad" in the sense that, in a effort to prevent the ocassional meritless claim it likely eleminates many more claims that do have merit. This is no accident. Again, the main interest of tort reformers is to prevent all claims from reaching the courts, not just meritless claims. Finally, you have to remember that in most cases plaintiffs do not have all the information they need to fully support their claims at the time they file. The details are established through the process of discovery. To require plaintiffs, particularly poor ones, to have all the details of the claim before they even have a chance to investigate it fully is unfair. Rules of procedure and professional conduct protect against frivolous lawsuits already.

Professor Alberto Bernabe said...

One more thing.... Take a look at this story by a plaintiffs' lawyer on his interview with a doctor who wanted to file a med mal claim: A Conversation With A Doctor Who Wanted To File A Malpractice Case