Understanding the Certificate of Merit and How it Can Make or Break Your Medical Malpractice Case

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Welcome to a special mailbag episode of I StrenuouslyObject. I'm  Mike the podcast producer,and today we're gonna answer questions sent to us by our listeners. Of course,as always, our podcast host is attorney Bill Rogel of the firm Flaherty, Fardo,Rogel & Amick, and we'll be joined by a friend of the podcast and recurringguest, Ron Myers. We call Ron the godfather sometimes, but mostly we call himEveryday Ron because he represents the layman's view of these.

thorny legal issues that we talk about here on I StrenuouslyObject. And watching Bill's back, as he always does in life and on the podcast,partner and well -known curmudgeon Noah Fardo will be joining in with hisusually ornery take on the topic at hand. But a quick disclaimer before webegin. The information contained on this podcast is intended only forentertainment, educational, or informational purposes and is not a substitutefor legal advice.

So now that we're done with the covering our asses part ofthe introduction, let's get to it. Today we'll be talking about medicalmalpractice cases, what you need to know if you are contemplating a lawsuit,and why you might not want to go back to the same doctor after you've decidedto sue them. Noah, how are you? Ron, how are you? Morning, William. Morning,Ron. Morning. Thanks for having me. Thanks for joining us. And, uh...

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Right, the easiest way to create content is to offload thatto our listeners. So with that in mind, producer  , what do we got? You've got mail. Well,we've got two questions. The first one is from anonymous, someone who does notwant to be revealed. And the question is, I've been told that it is harder toget a lawyer to take a med mal case than other kinds of injury cases. Why isthat? So quick, quick first dash at an answer here.

There are really two reasons, right? One of which is theamount and timing of the costs involved in medical malpractice cases. And a lotof that will circulate around what's called a certificate of merit. And thenthe second, of course, is just generally the complexity of medical malpracticecases and the favorability that people view towards doctors, right? Generally,when you're hit by a car in an accident, the person who hit you wasn't tryingto help you. In basically every med mal case, the doctor in question was tryingto help you and you have to overcome that.

So the first thought that comes to mind is, I'm wonderingwhat is a certificate of merit? Because I've never heard of that. So our rulesof civil procedure basically require, in professional malpractice or medicalmalpractice cases, require us to have a doctor confirm in writing that a caseis meritorious before filing suit. So in a car accident, you don't need to hirean expert at the beginning to find that the driver was negligent or that theinjuries sustained were caused by the accident.

You don't need to hire experts until right before trial,basically. And often, depositions or the police report and so on mean that wedon't need to hire an expert to reconstruct an accident at all. But in medicalmalpractice, it's totally different. At the time we file the complaint, ortechnically within 60 days thereafter, we have to file what's called acertificate of merit. The rule requires that a plaintiff or his or her attorneysign and file a document with the court.

Now, the document the attorney signs and files with thecourt itself is kind of swearing or referring that, and the language from therule says, quote, an appropriate licensed professional has supplied a writtenstatement that there exists a reasonable probability that the care, skill, orknowledge exercised or exhibited in the treatment, practice, or work that isthe subject of the complaint fell outside acceptable professional standards andthat such conduct was a cause in bringing about the harm. So look, what thatmeans is,

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We have to send the medical records and often a draft of thecomplaint to a doctor right at the beginning of the case in the same field andspecialty and have that person send us a letter that says, hey, there is atleast a reasonable probability that the defendant doctor here deviated from thestandard of care. Now, reasonable probability is a more relaxed standard thanwhat you need to actually win your case. But this isn't a distinction thatmatters really to doctors, right? To lawyers, that difference means something.To the doctor, we're asking to give us

written certification, that doctor basically needs to, atthe very beginning of the case, before we do any discovery, look at the medicalrecords and have the opinion and be willing to sign off in writing on theopinion that this doctor deviated from the standard of care. That's a processthat takes months between getting the records, having a doctor review them,getting their feedback, and it's expensive. It typically costs thousands ofdollars to have a doctor review the records and give you even a three sentenceletter confirming that there is a case here.

How often do you actually get a certificate of merit? Howoften does that work out? So it's interesting, right? Obviously, there aretimes where we think a case sounds meritorious based on our expertise andexperience and understanding of the case. And we send it to doctors and thedoctors are just a little bit too reluctant to sign off and say there's a casethere. That happens sometimes. But usually what happens is there's kind of achilling effect that that boils down, right? If I've got a case where I'm notsure if it's going to be meritorious or not, I'm not sure what the doctors aregoing to say when they look at the records.

I end up just passing on the case at the outset. This is oneof the reasons why getting a lawyer to take your MedMal case is harder thangetting them to take your other case, right? You tell me someone ran a redlight, I can take your case, right? I know that argument. You tell me someonemessed up a surgery, I need to have a doctor tell me the right things aboutthat. And I need to be really sure before I start investing the time it takesand the money it takes to review a record, send that record to an expert, waiton that expert to tell us whether or not there's a case or not.

It's easier to just say, look, from a business perspective,I don't want to spend thousands of dollars on things that may or may not be acase. It means that there's a bunch of cases that probably you could get acertificate of merit for. They're probably some case there, but it's a closeenough call that from a business perspective, I just, you know, we pass on itand we send it down the road to have them ask someone else. And there's a lotof people who are in that specific spot. And that's a result of this rule amongother things. Well, that is illuminating because I never knew that.

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That's news to me. And it's not just the rule, right? It isalso true that for us just to assess the case, right, my own common sense isenough to tell me when you describe a car accident or a slip and fall atsomebody's house, my common sense is enough to tell me, does this sound like acase or not? Case or no case, right? I'm answering that on the phone withsomeone who's talking to me about their prospective case all the time. Formedical malpractice, it's basically always, I need to see your records and Ineed to talk to a doctor. My opinion,

You know, I've been doing med mal long enough that myopinion means more than someone who has no experience in these fields, but I'mnot a doctor. Ultimately based on, on certificate of merit rules and how thesecases work. My opinion doesn't matter. Right? When you talk to me, whether Ithink you have a case or not is really just scratching the ice, the tip of theiceberg there. It's what the doctors are going to tell me that's going tomatter down the road. And I'm kind of predicting that. So I heard you say thatin the certificate of merit that the doctor has to.

agree that the doctor in question deviated from a standardof care? Were there other criteria? Like what if he just the doctor slipped andfall fell during surgery and stuck a scalpel in your thigh? Ouch. Yeah, I mean,there's two answers to that. The first first of which and I actually have onecase that kind of it was a slip and fall but at a doctor's office. And so itstarted getting the question of like, do I need a certificate of merit or not?Is this a professional liability case or is this a premises liability case?

Ultimately, because we wanted to be able to do both, we gota certificate of merit and proceeded under both theories, but with acertificate of merit as to both. But there are some interesting legal questionsabout if what you've got is not a professional liability case, but rather justa liability case against someone who happens to be a professional, you don'tneed a certificate of merit. If a doctor hits me with his car, I don't need toget another doctor to say he deviated from the standard of care. He wasn'tproviding medical treatment. So the way these certificates of merit work are.

The attorney has a form and there's basically it's a prewritten form that the state distributes and you have to check one of threeboxes on the form when you file your complaint or within 60 days thereafter. Soone of them is the language I was reading earlier. I had a licensedprofessional tell me in writing there's reasonable probability that the careprovided deviated from the professional standards. There's a second box thatyou can check this vicarious liability. It's like, look, I'm suing the corporation,but I have a

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letter from a doctor saying the person who was an employeeof the corporation in question deviated from the professional standard. But thethird box you can check is, I don't think I need a professional witness, Ithink, to tell me that there was a deviation from the standard of care. Now, ifyou check that box, you basically don't get to call an expert later. You havenow said basically, I think that the mistake here is so obvious that I don'tneed to have a doctor come in and explain it.

I think any old layperson on the jury will understand thatthis case is clear and obvious negligence. I've never actually tried to do thaton a case because if I don't think I can convince a doctor that there was adeviation from the standard of care, I am not going to go check box three andgo in there and try to convince a jury without a doctor that this was adeviation from the standard of care. You can imagine a factual scenario that'ssufficiently clear. Like, you know, theoretically they, you know, you'resupposed to amputate the right leg and they amputate the left leg.

Even that I would get a professional opinion on becausethat's a mistake rendered while operating care. And a doctor can say, look, youknow, maybe it's only one time out of every 200 million, but at someprobability, this just occurs even when you didn't do anything wrong. So thereis a mechanism to allow someone to come in there and say, this is so blindinglyobvious that I am not going to spend the money on experts. I'm just going towalk in there with the medical records and my own testimony.

and try to convince you that there was a deviation from aprofessional standard of care, to which I say, good luck, you will not win thatcase because the other side is going to hire experts that are going to come inthere and tell you, look, you know, this doctor did did what a doctor issupposed to do. I'm not telling you this bad result didn't happen, but itwasn't a deviation from the professional standard. And if I don't have my ownexpert. Yeah, I've I've really made a bad bed there. I'm fascinated anddisturbed that.

If you have a case that you know, you know, the checkboxnumber three, this is an obvious error that you then can't call a professionalexpert witness. Well, the problem is, if you didn't otherwise, what you'redoing is undermining the whole rest of the rule, right? So the reason that thecourts impose this certificate of merit requirement on us is to combatfrivolous lawsuits, right?

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Everyone hates frivolous lawsuits and they make your medicalpremiums higher and everything else. I haven't seen that many frivolouslawsuits in my day, but I'm sure they're out there. I'm not taking those cases.I don't want those cases. But the idea here is to make people who wouldotherwise be filing a frivolous lawsuit go get a doctor to tell them that theircase is good or isn't good. And if you could just check box three because youthink it's obvious, everyone would just do that all the time.

So you need to have some kind of teeth or sanction to itthat no, we're actually proceeding in an expert free environment here. Ifyou're going to check box three, you need to be able to convince someone downthe road that you don't need an expert. Otherwise, yeah, it'd be really easyfor every attorney to say, look, I think a juror could hear this without anexpert and find in our favor. We're not going to do that, but I think we could.And so I'm going to check box three and the certificate of merit requirementgoes away. We had another question. Is that right,  ?

Yeah, this one comes from Rob from Pittsburgh. And he wantsto know, if I think I was a victim of medical malpractice, should I go back tothe same doctor for more treatment? That's a really good question. It is a goodquestion. It's one we get a lot. The answer here is basically, it depends.Look, we never give medical advice. And if you believe that a specific doctorcan give you or a loved one the best medical care.

then you should do what's best from a health perspective,right? You should never let a legal case drive an important medical decision.However, from a legal perspective, we do not recommend continuing treatmentwith a doctor that you believe may have committed malpractice. Again, unlessabsolutely necessary from a medical standpoint or a treatment standpoint. Andthe logic here is simple, right? First, medically, why would you want to keeptreating with a doctor that you believe committed malpractice on you?

If you think that doctor was negligent, common sense wouldhave you question whether or not it's safe to continue getting care from thatsame doctor. But secondly, jurors, finders of facts down the road, they can beskeptical of a patient who in one breath is saying, hey, I think that doctorcommitted malpractice on me, but on the second breath keeps going back to thatdoctor for additional follow -up treatment. It makes it really easy for a jurorto decide they don't believe you. Now,

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This can be a little bit different if you believe it waslike the hospital and not the particular doctor. But again, any chance you haveto get out of the treatment from the person who you're alleging committedmalpractice is, from a legal perspective at least, ideal. Now, we understandthe practical realities. Changing a doctor is hard. There's insurancesituations. Sometimes you can try to change doctors and not be able to. Andagain, your medical concerns need to...

need to come first and foremost, worry about the legal casesecondarily. But the other thing I would add is some of our best witnesses inmed mal cases have been doctors who've done follow -up care. Now, usually thedoctor you go to is less apt to want to take your case if they know they'reworking on a patient who the prior doctor has messed up on. But if they'rewilling to take your case and they go in there for a corrective surgery andthey're able to talk in their testimony about how messed up the situation was,

That can be really powerful evidence. And it gives you a,you know, in addition to your kind of disinterested expert who you hire to comein and give opinions, you also get to have fact witnesses come in who aredoctors and who are able to either explicitly or implicitly tell a jury or afinder of fact here that the first doctor messed up. That can be a greatwitness. So legally, you should always try to go see a different doctor.Practically, we know that you can't always do that and you can't jeopardize yourhealth. There's a gray area too.

Are you going back to the same doctor for a surgery? ThatI'd be very hesitant to do. But there are times where you can go back to thesame doctor to find out what happened. I mean, if you're worried about yourhealth, the more information you have, the better. And if you're worried aboutgoing back to the same hospital, get a second opinion within the hospital. Butdon't be afraid to ask, did something go wrong? Why is this necessary? Becausethat information can be crucial to your case.

I would only add on top of that, you should at leastconsider the possibility. And if you're in this position, if you're asking methis question, you obviously are considering the possibility of, hey, should Iswitch to another doctor? And if you make some inquiries, talk about schedulingan appointment or get a second appointment, at least then if you get cross-examined on it later, why'd you go to the same doctor? You have answers. Well,look, I tried and my insurance company wouldn't let me or I would have had tochange systems or, you know, I tried to make three appointments and none of thedoctors would see me because they didn't want to be involved.

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kind of cleaning up someone else's mess, then at least youhave an answer if that question is put to you explicitly. The other thing is,and we struggle with this all the time in med mal cases anyway, even gooddoctors commit malpractice, right? The fact that someone made a mistake oncedoes not necessarily mean they're gonna make that mistake or more mistakesgoing forward. You know, we analogize it to driving, right? There are somepeople who are just unsafe drivers and get in a bunch of accidents.

Once you figure out that person, you don't get in the carwith them. But even people who are good drivers might have a lapse now andthen, or might make one mistake. When they do, legally, they should beresponsible for that, right? The fact that I'm normally a safe driver and onthis particular day got so distracted that I ran a red light and hit you withmy car, I should still be liable, right? The fact that I'm a good driver therest of the time does not mean I'm not responsible. But it doesn't mean thatyou can't get in the car with me later because one accident does not an unsafedriver make.

And similarly, one case of malpractice doesn't mean thatyou're an unsafe doctor. And a lot of jurors approach it from kind of thatperspective, where it's almost like we have to prove that this is a bad doctorwho does bad things all the time. This isn't a criminal case. It doesn't haveto be intentional. Our civil responsibility system says, look, if you werenegligent and people are negligent, you're responsible for the consequences ofthat negligent. We don't have to judge your character to say that you'reresponsible for the consequences of one single negligent act.

And so it's certainly possible medically that, you know, adoctor who's otherwise fine and is the best person to continue caring for youmade a mistake one Tuesday. And it's unfortunate that our advice has to be froma legal perspective, at least to consider switching doctors, because a juror islikely to find the fact that you went back is argument against the doctorhaving made a mistake. And that shouldn't be how it is. That's not that's notthe reality of the situation, right?

All right. And thanks. Thanks to our I should I knew asleepJack listeners for for asking us questions and giving us free content. It'smuch appreciated. And they get free legal advice, sort of. That's right. That'sright. Although you're not supposed to take this as legal advice. I've got todo a whole disclaimer now. I just because I said that. Let's insert thedisclaimer right. Sorry about nothing. We say here is legal advice and veryspecifically, if you send us a question, we answer your question on the air.That is not legal advice.

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Thanks to everyone for joining us for this episode of IStrain You as Lee of Jett. Thanks again to Everyday Ron, who we're not callingthe Godfather, and who I'm definitely not calling the Godfather behind hisback.

Thank you so much for joining us and for your input today.Thanks as always to attorney Noah Fardo Hopefully you you learn some stuff orhad some interesting thoughts and entertain yourself as we were doing thispodcast If so, please subscribe rate and review share it on social media That'sthe thing right if you have any questions for a mailing in segment or anyfeedback for the pod whatsoever Email us that's at I object at PGH firm comm

that's like Pittsburgh and law firm, right? PGH firm .com.We are on Instagram at I strenuously object podcast. And for more informationon any legal matters, specifically medical malpractice, personal injury, ifyou've been injured, if you're wondering if you should sue.

Go on our website, that's Flaherty Fardo's website, atpghfirm .com. And until next time, some parting advice. Every time somebodyrecommends a doctor, oh he's the best. Oh, is he good? Oh, he's the best. Theycan't all be the best. Someone's graduating at the bottom of these classes.Where are these doctors? Is somewhere someone saying to their friend, youshould see my doctor, he's the worst. Whatever you've got, it'll be worse afteryou see him.

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