Do I need a certificate of merit to bring a medical malpractice claim in California?
In a number of states, there are laws that require a medical malpractice plaintiff (the person filing the lawsuit) to file a certificate of merit (sometimes called an affidavit of merit) with the court, along with the initial complaint. The certificate is a document that usually contains a medical expert's opinion, finding that sub-standard medical care was a factor in causing the plaintiff's injury. The certificate of merit requirement is meant to weed out medical malpractice cases that may not have merit.
California does not have a certificate of merit requirement. All that is needed to start a medical malpractice lawsuit in California is the filing of the complaint in civil court, along with the payment of any filing fees. You also need to give the defendant health care provider notice of your intent to file the lawsuit at least 90 days before you actually file, in accordance with California Code of Civil Procedure section 364. Besides that, there are no additional procedural hoops to jump through in order to get the case started.
But that doesn't mean that you won't face other challenges if you bring a medical malpractice lawsuit in California. You'll still need to prove that your injury or health problem was caused or made worse by the provision of medical care that was sub-standard or negligent. And proving this almost always requires the assistance of a medical expert -- someone who is trained and experienced in the relevant medical field, and can show exactly how the doctor in the instant case failed to provide the level of care that a similarly-trained and prudent health care provider would have provided under the circumstances. Learn more about Challenges in Suing for Medical Malpractice.
And one final note on medical malpractice laws in California. If you are successful and a jury finds your doctor liable for negligence, you won't be able to receive more than $250,000 in the way of "pain and suffering" damages. California has capped these kinds of non-economic damages in medical malpractice cases. Learn more about Award Limits in Medical Malpractice Lawsuits.
by: David Goguen, J.D.