Medical Malpractice

What is the "Affidavit of Merit" in a Michigan Medical Malpractice Lawsuit?

By David Goguen, J.D., University of San Francisco School of Law
When you file a medical malpractice lawsuit in Michigan, you (or your attorney) also need to file an "affidavit of merit" stating that the case has been reviewed and endorsed by a qualified health care professional.

If you're thinking about filing a medical malpractice lawsuit in Michigan, you need to be prepared to comply with a number of procedural rules that are unique to these kinds of cases. One of the most daunting of these requirements is the filing of the "affidavit of merit." Read on for the details on what the affidavit of merit is, and what it needs to cover. (For a summary of another procedural rule unique to Michigan medical malpractice cases, check out our companion article What is the "Notice of Intent to File" a Michigan Medical Malpractice Lawsuit?)

Filing the Affidavit of Merit

Michigan Compiled Laws section 600.2912d says that the plaintiff in any medical malpractice case (or the plaintiff's attorney) must file, alongside the complaint (that's the document that lays out the plaintiff's allegations and gets the lawsuit started), an "affidavit of merit" signed by a properly qualified health care professional who has reviewed the plaintiff's case and all medical records supplied to him or her, and can state under oath:

  • what "standard of care" should apply to the case (this is a key element, because it sets the baseline for assessing the defendant health care provider's actions in treating the plaintiff)
  • that the health care provider breached that standard of care in treating the plaintiff
  • what the health care provider should have done in order to comply with the standard of care, and
  • how the health care provider's deviation from the applicable standard of care caused the plaintiff's harm.

Getting an Extension to File the Affidavit

Even though section 600.2912d says that the affidavit of merit must be filed along with the complaint, the plaintiff (or his or her attorney) may ask the court for an additional 28 days to get the affidavit filed, and the court will usually grant the request as long as "good cause" for the extension is shown.

And if the defendant health care provider isn't allowing the plaintiff timely access to medical records as required by other Michigan procedural rules for medical malpractice cases, the plaintiff may be granted another 91 days to file the affidavit.

This potential 91-day extension relates back to another procedural requirement for plaintiffs wishing to file a medical malpractice lawsuit in Michigan: the mailing of the "notice of intent to file." Basically, the mailing of this notice sets in motion a number of obligations on the part of the plaintiff and the care providers who receive it, regarding the exchange of medical records and authorization for access to medical records. To learn more about the procedure related to this notice, check out our companion article: What is the "Notice of Intent to File" a Michigan Medical Malpractice Lawsuit? And for details on the statutory filing deadline for medical malpractice lawsuits in Michigan, read What is the Michigan Statute of Limitations for Medical Malpractice Lawsuits?

A Michigan medical malpractice attorney will no doubt have the experience to comply with all the different steps that are necessary for filing a Michigan medical malpractice lawsuit (including the "notice of intent to file," the "affidavit of merit," and the statute of limitations). If you have questions about complying with these requirements or any other Michigan law concerning medical malpractice lawsuits, an experienced attorney will have the answers.

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