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Exemplary Statutory Language for Certificate of Merit Expert Witness Legislation

MD Statute with Modifications

Certification Affidavit by Qualified Expert Witness 
This section does not apply if the defendant admits liability.

  1. In general.-  in any case in which expert testimony is required to establish the standard of care, reasonable cause for filing or defending an action alleging medical injury due to negligence must be established by filing by the attorney of an affidavit that shall be executed by an expert who is qualified to testify under the state statute or regulations as an expert medical witness.
    1. Within 15 days after the date that discovery is required to be completed, a party shall file with the court an affidavit of a qualified expert, under oath, accompanied by a current curriculum vitae of the expert.  The affidavit executed by the expert under oath must attest to:
      1. The certifying expert's basis for alleging what is the specific standard of care;
      2. The certifying expert's name, address, and qualifications to testify as to the specific standard of care;
      3. The specific standard of care which is at issue;
      4. For the plaintiff:
        1. The specific injury complained of;
        2. How the specific standard of care was breached;
        3. What specifically the defendant should have done to meet the specific standard of care; and
        4. The manner in which the breach of the standard of care proximately caused the plaintiff's injury; and
      5. For the defendant:    
          1. How the defendant complied with the specific standard of care;    
          2. What the defendant did to meet the specific standard of care; and    
          3. If applicable, the averral that the breach of the standard of care did not proximately cause the plaintiff's injury.
    2. An extension of the time allowed for filing a certificate under this section may be granted upon motion to the court, after hearing and for good cause, as the court determines justice requires.
    3. The facts required to be included in the certification affidavit of a qualified expert shall be considered necessary to show entitlement to relief sought by a plaintiff or to raise a defense by a defendant.
  2. Failure to file.- Subject to the provisions of this section:
    1. If a plaintiff fails to file a certification affidavit of a qualified expert for a defendant, on motion of the defendant the court may dismiss, with(out) prejudice, the action as to that defendant; or
    2. If the defendant fails to file a certificate of a qualified expert, on motion of the plaintiff the court may adjudicate in favor of the plaintiff on the issue of liability as to that defendant.
    3. If any action or defense of an action for medical injury is filed without reasonable cause as defined in this section, the party or attorney who filed the action or defense may, as determined by the court, be subject to payment of reasonable costs, including attorney's fees, incurred by the other party by reason of the pleading; and/or appropriate sanctions.
  3. Consequences of signing a certification affidavit
    1. The signature of the expert witness constitutes a certification that the signor has read the affidavit, and that to the best of that expert's knowledge, information and belief formed after a reasonable inquiry and examination of available evidence it is true, accurate, and made in good faith.  A certification made in violation of this provision subjects the attorney or party engaging the expert to reasonable attorney's fees, costs, and disbursements.
    2. Regardless of whether the certification affiant provides other testimony in the case, the execution of a certification affidavit will be regarded as testimony and the affiant shall be deemed to have a temporary license to practice medicine in this state for the purpose of providing such testimony and is subject to the authority of the state medical board under the state expert witness statute.
  4. Certification requirements.- For purposes of the certification requirements of this section:
    1. A party may not serve as a party's expert; and
    2. The certificate may not be signed by:
      1. A party;
      2. An employee or partner of a party; or
      3. An employee or stockholder of any professional corporation of which the party is a stockholder.
  5. Copies to Department of Health and Mental Hygiene; use by Department.-
    1. The clerk of the court shall forward to the Department of Health and Mental Hygiene copies of the certificates filed under this section.
    2. In the case of a complaint against a physician, the Department of Health and Mental Hygiene shall forward to the State Board of Physicians copies of the certification affidavit of a qualified expert filed under this section.
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