Many states have passed a tort “reform” measure that requires injured patients to file a certificate of merit along with a medical malpractice lawsuit. The Washington State Supreme Court has held that law to be unconstitutional:
On Sept. 17, justices found unconstitutional a state law requiring patients, at the initial filing of a lawsuit, to submit a statement from a medical expert certifying that there was a reasonable basis for the allegations. The court unanimously said the certificate-of-merit statute encroached on the court's ability to set its own procedural rules, violating the separation of powers between the Legislature and the judiciary. In particular, the court found that the law conflicted with an existing rule barring additional verification of a case.
Source: AMNews: Oct. 12, 2009. Certificate-of-merit law struck down by Washington Supreme Court ... American Medical News
My biggest objection to certificate-of-merit laws is that many of them require you to file this certificate of merit before or simultaneously with the lawsuit. This has the effect of shortening the statute of limitations because a plaintiff has to:
- Order his or her medical records
- Find an expert witness
- Hire the expert witness, and pay him or her to review the records
- Wait for the expert to submit the certificate
This can easily shave 2 or more months off already-short statutes of limitation.