Affidavit of merit

What is an affidavit of merit?

An affidavit of merit is a sworn statement by a licensed professional confirming there is a reasonable probability that the defendant's conduct fell outside acceptable professional standards.

It is a gatekeeping requirement rather than proof of the claim. Its purpose is to screen out professional negligence suits lacking expert support before the defendant incurs the cost of defending them.

The requirement comes from N.J.S.A. 2A:53A-27 and applies to a range of licensed professions, not only medicine.

For claimants it is often the first hard deadline encountered after filing, and it arrives faster than most people expect.

What does the requirement involve?

Several conditions must all be satisfied.

• A licensed professional in the relevant field must provide the affidavit
• In medical cases specialty matching requirements generally apply
• It must be served within the statutory period after the defendant's answer
• An extension may be available for good cause within limits
• The affiant must have no financial interest in the outcome

What happens if it is not filed?

Dismissal, and often with prejudice, meaning the claim cannot be refiled. Courts have treated the requirement seriously and the consequence is severe.

Limited relief exists through recognized doctrines where a defendant's own conduct contributed to the failure, or in narrow circumstances where the common knowledge exception applies.

Those exceptions are not something to rely on. The requirement is a deadline to be met rather than a hurdle to be argued around.

Why does this shape malpractice cases?

It front loads the expense. An expert must be retained and records reviewed before the case has developed, which is one reason malpractice claims are costly to bring.

It also means these cases cannot be filed protectively while an expert is sought. The clock runs from the answer regardless of whether a suitable expert has been located.

The practical consequence is that professional negligence claims should be brought to an attorney well before the statute of limitations approaches.

It is also a reason to be cautious about general online guidance on malpractice claims, since states differ considerably on whether such a requirement exists.

Common questions

Does every malpractice case need one?

Most do. A narrow common knowledge exception applies where the negligence is obvious to a layperson without expert explanation, but it is applied sparingly.

Who can sign the affidavit?

A licensed professional in the appropriate field, with specialty matching requirements in medical cases. The affiant must have no financial interest in the case.

Does it apply outside medicine?

Yes. The requirement covers a range of licensed professionals, including attorneys, accountants, engineers and architects.

Can I file the case while looking for an expert?

The complaint can be filed, but the affidavit deadline runs from the defendant's answer regardless of whether a suitable expert has been located. This is why professional negligence claims should reach an attorney well before the limitations period approaches.