By Alex Stein
When Sir Henry Maine wrote (here, on page 389) that early substantive law was “secreted in the interstices of procedure,” he did not know that he was coining a long-lasting adage. Even less did he anticipate that this adage will aptly describe our today’s system of medical malpractice.
This system normally requires plaintiffs to accompany their suits with an affidavit or certificate of merit from an eligible medical expert. The expert must show that s/he practices medicine in the same field or specialty as the defendant doctor and is familiar with the standards, protocols and procedures followed by physicians working in that field or specialty (in some jurisdictions, the expert only needs to satisfy the familiarity condition). The expert also must identify the malpractice: the defendant’ deviation from one of those standards, protocols or procedures. Finally, the expert must certify that there is a reasonable medical possibility that the defendant’s malpractice has injured the plaintiff or aggravated her condition. When a plaintiff fails to submit an affidavit that satisfies this checklist requirement, the court must dismiss her suit. The checklist requirement thus creates a “safe harbor” for doctors who go by the rules and blocks away unmeritorious suits. For details, see here.
The Supreme Court of Idaho has recently taken the checklist requirement to its extreme. This unfortunate development took place in Hall v. Rocky Mountain Emergency Physicians,— P.3d —-, 2013 WL 4768310 (Idaho 2013). Read More