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Expert Witnesses and the Preparation of Affidavits of Merit

Experts have the task of proving that a claim has merit through an Affidavit of Merit, and this may have a direct connection to a medical malpractice suit or when the medical device used causes injury to the patient. Through this affidavit, the expert explains that the claim has sufficient strength to proceed through trial or to a hearing with a judge.

When a claimant has a civil claim where the medical liability or medical malpractice suit needs merit, an expert witness may become part of the proceedings just for this specific task both before and during the courtroom case. These claims are generally against doctors or healthcare professionals that provide care and there is an injury or death to the patient from negligent acts or an omission of activity or information. It is then that the person must establish certain elements in the case before it is of merit. This is where the expert is necessary and will increase the strength of the claim.

The Elements of the Suit

As with other malpractice suits of a medical or dental nature, the professional must owe some duty such as standards of care to the patient. For this type of standard of care, there must exist a violation that occurred against the
patient or the surviving family from the death. The injury must require compensation for a claim to have merit, or the death could take the place of this element. Additionally, the violation of the duty or standard of care is the reason for the suffering of the person. The connection frequently needs explanation, and the expert may supply these details to the courtroom.

The Expert in the Preparation and Explanation

To ensure that the case is both valid and has merit, the expert has the task of preparing the affidavits. He or she will need to document the process and copy the paperwork for all necessary authorities. This usually includes the details of the case with a legitimate claim against the physician or other medical staff member. The information about the injury as it has a connection to the situation and doctor is important and provides additional evidence that a malpractice suit or negligence case will occur in the courtroom. Any other type of claim is possible with an affidavit of merit, but the documentation gives the court confidence that there is sufficient evidence to proceed.

The paperwork will summarize any connected state laws to the affidavit along with associated medical expert details, liability and evidence. There are certain requirements in 28 states in the country to file an affidavit of merit for liability in medical and malpractice claims. However, there are 32 states including the territory of Guam that have minimum qualifications that the attached expert witness must possess when he or she will supply and present testimony in liability and malpractice suits. The lawyer attached to the case generally needs to search out the requirements versus what the expert available for the case may possess. His or her credentials must match the minimum requirements.

The Expert Witness Based on State

The affidavits of merit rules and guidelines depend significantly on the state. This may require the lawyer attached to the case to hire an expert that understands the entire situation or someone that has knowledge of the specific state. If the requirements of the state demand more focus, the expert’s background may need to include a specialization of that specific location or some form of certification. Knowing the process and what the affidavit of merit should include is essential for the case. The judge may throw out the paperwork if it is incomplete or filed improperly.

The Actions and Follow-through of the Expert

Once the lawyer determines if a state-specific expert is necessary, he or she may proceed to the next concern. The actions of the expert in filing the affidavit will affect the case. The information for medical liability or malpractice may demand further documentation of the victim, additional evidence gathered for the claim or supporting witness statements. The expert in the case could have medical expertise or work as a doctor depending on the state requirements.

If the person sought medical care or treatment from an unqualified person that is not deemed a physician or doctor, the claim could fail. The expert will need to analyze the details of the claim thoroughly to ensure the affidavit of merit reflects the valid claim against the defendant.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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