Medical malpractice claims are not like other kinds of personal injury lawsuits. One key difference is that Ohio law requires a malpractice plaintiff to submit an Affidavit of Merit to the court as part of their complaint. This affidavit requirement applies in any case that “contains a medical claim, dental claim, optometric claim, or chiropractic claim,” and is intended to discourage the filing of frivolous malpractice lawsuits.

The plaintiff does not actually sign the affidavit. Rather, the plaintiff must find an “expert witness” who can certify three things:

  1. The witness has “reviewed all medical records reasonably available to the plaintiff” with respect to the malpractice allegations.
  2. The witness is “familiar with the applicable standard of care.”
  3. The witness is of the opinion that this standard of care “was breached by one or more of the defendants” named in the lawsuit, and that said breach “caused injury to the plaintiff.”

Magistrate Advises Dismissing Air Force Veteran’s Lawsuit Due to Lack of Affidavit

The Affidavit of Merit is not an optional requirement. To illustrate what happens when a plaintiff fails to comply, here is a recent case, Murphy v. United States of America, where a federal magistrate recommended dismissing a malpractice complaint where the plaintiff never filed an affidavit. This case is also notable for two reasons: the plaintiff represented himself without the assistance of a qualified medical malpractice attorney, and the defendant is the federal government.

In brief, the plaintiff is a U.S. Air Force veteran who received knee replacement surgery at a Department of Veterans Affairs hospital in Cincinnati. In his lawsuit, the plaintiff alleged he developed a post-op infection that was never properly diagnosed or treated by VA doctors. Instead, the plaintiff had to seek further treatment from a private specialist to address the infection. But even now, the plaintiff said he continues to suffer “pain and an almost complete loss of the functionality of his right knee and leg,” which effectively ended his military career.

The plaintiff sued the federal government for medical malpractice. Such lawsuits are permitted under the Federal Tort Claims Act (FTCA). This law requires federal courts to try medical malpractice and other personal injury claims under the law of the relevant state, which in this case is Ohio. This also means that the plaintiff was required to comply with the affidavit requirement as a condition of proceeding with his lawsuit.

Unfortunately, the plaintiff never filed an affidavit, despite receiving two extensions of time from the court. In fact, the magistrate overseeing the case noted the plaintiff was given “well over a year since the filing of the complaint to submit one.” (Normally, extensions are for 90 days after the filing of the original complaint.) For that reason, the magistrate advised the district court to dismiss the plaintiff’s complaint.

Get Help from a Cleveland Medical Malpractice Lawyer Today

One reason the plaintiff in the above case may have been unable to meet the affidavit deadline is that he lacked legal counsel. Do not put yourself in this position. If you are even contemplating a lawsuit, you need to speak with a qualified Cleveland medical malpractice lawyer. Contact Tittle & Perlmuter at (216) 308-1522 if you need help today. We serve clients in Cleveland, Lakewood, Elyria, Chardon, Sandusky and surrounding areas.

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