It is often tricky to determine if a person has been harmed by medical malpractice. The law requires that to prove a doctor, a nursing home or a hospital (Health Care Malpractice) committed malpractice it must be shown that the health care provider acted negligently and that this caused a harm. In the law one acts negligently when he/she doesn’t apply the skill and care ordinarily applied by reasonably prudent practitioners in the same or similar circumstances. This is called a breach of the applicable standard of care.
It is important to understand that a health care provider can be negligent and this conduct may not cause a harm. This is analogous to a car going through a red light but not hitting anything. The car violated the rules (standard) by going through a red light and of course could be ticketed. But no one is allowed to sue the driver for that because no one was harmed or hit. The same can happen in medical practice where a doctor or a Nursing Home or Hospital can violate a protocol but no one is hurt. Maybe, for example the Hospital filled a prescription wrong but then spilled it before giving the medicine to the patient as ordered. Then they replaced it with the correct medicine and gave that never realizing what they did wrong. Here the hospital actually did something wrong by improperly filling the prescription but the patient was never harmed. In this case the hospital could have a complaint for negligence against its license to operate, as it did in fact do something wrong and needs to clean that up so that others don’t actually get hurt, but the patient cannot sue because the patient suffered no harm.
It takes a physician to be able to make the determination as to whether a medical procedure was done correctly or not and whether a harm was suffered by that act. It is for this reason that one may not file a medical malpractice lawsuit unless a physician has determined in a written report that after reviewing the records and facts of a case the physician believes there was negligence which led to a harm.
The idea of interposing this roadblock of sorts to this single class of lawsuits, and no other, is to prevent doctors from being sued frivolously by plaintiffs who are unable to determine what really happened and why because of a lack of medical training. This is an expensive hurdle to cross but do not kid yourself by thinking it’s not important. This medical review and report must be done or your case will be immediately thrown out of court.
It is also important to realize that even where this is done if it is done by an inexperienced physician in law or as a one off favor or in a cavalier manner that it can mis-posture the suit forever leading to a defense victory. Don’t ever let anyone tell you that the Certificate of Merit is a minor thing or less meaningful then expert testimony later to come. There’s an old saying that if a case is almost right then it’s wrong.
The Certificate of Merit is designed to do two things and they are; protect the medical profession from patently frivolous litigation and force the victim to get an early handle on the merits or deficiencies of the case. Because everyone is supposed to be entitled to use the Court system and is entitled to their day in court the bar for the Certificate of Merit is very low. All that is required is to show that the case is not frivolous. It is not required that the Report establishes all the evidence or even proof of ultimate victory. The defense establishment will not infrequently try to knock out the Report for one reason or another but the fact is and the Judges know that this is usually improper and should be denied. The legal balance struck is to simply require a sliver of evidence against the doctor so the case may proceed. The basis for the law is not to try the case based on a single Report but to balance the needs of society in having some order in the practice of medicine while at the same time allowing injured patients to seek redress in the courts.
