International Journal of Academic Medicine

LETTER TO EDITOR
Year
: 2017  |  Volume : 3  |  Issue : 1  |  Page : 206--208

Certificates of merit: A means to reduce frivolous lawsuits


Pamela L Valenza, Kristine Cornejo 
 Department of Family Medicine, St. Luke's University Health Network, Phillipsburg, NJ, USA

Correspondence Address:
Pamela L Valenza
St. Luke's Warren Family Medicine Residency, St. Luke's University Health Network, 755 Memorial Parkway Suite 300, Phillipsburg, NJ 08865
USA




How to cite this article:
Valenza PL, Cornejo K. Certificates of merit: A means to reduce frivolous lawsuits.Int J Acad Med 2017;3:206-208


How to cite this URL:
Valenza PL, Cornejo K. Certificates of merit: A means to reduce frivolous lawsuits. Int J Acad Med [serial online] 2017 [cited 2021 Mar 7 ];3:206-208
Available from: https://www.ijam-web.org/text.asp?2017/3/1/206/209863


Full Text

To the Editor,

The concepts in “History of physicians fighting frivolous lawsuits: An overview” are certainly still relevant, but the key is that the context may have changed. Given the timing of 2016, perhaps a different approach would be to lobby for legislation state by state, for the type of certificate of need legislation that exists in such a state like the Commonwealth of Pennsylvania. Much of the literature in the article predates 2008, and in some respects, significantly predates that year. A physician may pro se file a countersuit, but in some states, such as Pennsylvania, a plaintiff before filing a medical malpractice lawsuit must secure a preliminary opinion from an expert that there is merit to the claim. Such a “certificate of merit” should effectively preclude any possible success in a countersuit filed by a physician alleging the medical malpractice lawsuit to have been frivolous. If in fact a lawsuit is commenced by a plaintiff with an expert having certified the merit of the claim, case review demonstrates there to be little to no viability to a countersuit. While this article has been reprinted in 2016, the basis upon which the article was written in 2008 may no longer apply.

In Pennsylvania, 231 Pa. Code rule 1042.3 certificate of merit was adopted January 27, 2003, and amended in 2005, 2008, 2013, and 2016.[1] By 2015, medical malpractice case filings in Pennsylvania dropped 44% [Figure 1].[2] In addition, verdicts in favor of the defense, both jury and nonjury, increased from 73% (n = 239, 2000–2003) and 60% (n = 3, 2000–2003) to 78.4% (n = 80, 2015) and 100% (n = 4, 2015), respectively.[2] While it is unknown to this author if other states have similar statistics with regard to medical malpractice filings and verdicts, only 28 states have requirements for the filing of an affidavit or certificate of merit in order for a medical malpractice claim to move forward [Table 1].[3] Statutory requirements in other states, whether similar or different, would seemingly have a likely effect of reducing frivolous lawsuits. Thus, a more appropriate response to frivolous lawsuits may be a state-by-state institution of certificate of merit requirements. In addition, it may be worthwhile for a national policy along the lines of certificate of merit legislation to be considered for congressional action.{Figure 1}{Table 1}

Of course, if an “expert” physician chooses to render an opinion that is contrary to generally accepted standards of care that would raise a number of ethical issues. Therefore, any physician who is requested to review medical care for the purpose of determining whether there is merit to a proposed lawsuit must be responsible to uphold and honor their ethical obligation.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

References

1Legislative Reference Bureau. The Pennsylvania Code. Commonwealth of Pennsylvania; October, 2016. Avaialble from: http://www.pacode.com/secure/data/231/chapter 1000/s1042.1.html. [Last accessed 2016 Dec 06].
2The Unified Judicial System of Pennsylvania. Pennsylvania Medical Malpractice Statistics: 2000-2015; October, 2016. Avaialble from: http://www.pacourts.us/news-and-statistics/research-and-statistics/medical-malpractice-statistics. [Last accessed on 2016 Oct 12].
3Morton H. Medical Liability/Malpractice Merit Affidavits and Expert Witnesses. National Conference of State Legislators; June 24, 2014. Avaialble from: http://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-merit-affidavits-and-expert-witnesses.aspx.. [Last accessed on 2016 Dec 6].