After discussing the required Notice of Intent and Affidavit of Merit that the plaintiff must file, the defendant must know how to fight for his rights. This is why the law in the State of Michigan strictly requires that an Affidavit of Meritorious Defense be filed by the defendant in the case.
In this article, let us talk about what should be included in the Affidavit of Meritorious Defense.
Let us begin.
Legal Provision
Section 600.2912e provides the specific provision to be followed in Michigan in terms of actions alleging medical malpractice; filing an answer to the complaint; filing the affidavit of meritorious defense; failure to allow access to medical records:
(1) In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with section 2912d, the defendant shall file an answer to the complaint. Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant’s attorney shall file, not later than 91 days after the plaintiff or the plaintiff’s attorney serves the affidavit required under section 2912d, an affidavit of meritorious defense signed by a health professional who the defendant’s attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of meritorious defense shall certify that the health professional has reviewed the complaint and all medical records supplied to him or her by the defendant’s attorney concerning the allegations contained in the complaint and shall contain a statement of each of the following:
(a) The factual basis for each defense to the claims made against the defendant in the complaint.
(b) The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to apply to the action and that the health professional or health facility complied with that standard.
(c) How it is claimed by the health professional or health facility named as a defendant in the complaint that there was compliance with the applicable standard of practice or care.
(d) How the health professional or health facility named as a defendant in the complaint contends that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered.
(2) If the plaintiff in an action alleging medical malpractice fails to allow access to medical records as required under section 2912b(5), the affidavit required under subsection (1) may be filed within 91 days after filing an answer to the complaint.
MCL 600.2912e
Let us break down this provision.
An affidavit of meritorious defense is submitted by the defendant’s attorney. At this point, it is important to take note of the fact that even if you were able to properly file the case on your own and submit the Notice of Intent as well as the Affidavit of Merit on your own, the other party will probably hire a lawyer once they received the Notice and they will have the legal background to fight your case.
This is why you need a good lawyer by your side. We can help you with this fact.
What shall be included in the Affidavit of Meritorious Defense?
According to the law, the Affidavit of Meritorious Defense must be signed by a health professional. The health professional must be someone who meets the requirements of an expert witness.
Remember the discussion on the Affidavit of Merit? In an Affidavit of Merit, the expert witness must have the following qualifications:
- licensed and qualified to practice in the same specialty as the defending medical professional;
- licensed and qualified to teach in the same specialty as the defending medical professional;
- Must have the same board certifications of the defendant; and
- Must have the same professional expertise as the defendant.
The medical expert must be in the same league as the defendant in the case. A nurse cannot be in the same league as a doctor just like a dermatologist cannot be in the same league as an oncologist in terms of being an expert witness in court in medical malpractice cases.
The affidavit of meritorious defense that has been certified by the health professional must show that the expert has reviewed the complaint as well as all of the medical records that have been supplied by the lawyer concerning the allegations.
The affidavit must contain a statement of each of the following:
The factual basis for each defense to the claims made against the defendant in the complaint.
This is now about the defense of the healthcare professional who is the defendant in the case. The factual basis for each defense to the claims made against the defendant in the complaint must be specifically provided in the affidavit.
The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to apply to the action and that the health professional or health facility complied with that standard.
The standard of practice or the standard of care that the health facility applies in the situation that is the same as the case in point must be stated in the affidavit of defense. This is to show that the defendant did not do anything that is beyond what is legally allowed in law.
How it is claimed by the health professional or health facility named as a defendant in the complaint that there was compliance with the applicable standard of practice or care.
There should be a showing that the applicable standard of practice or care has been provided for by the parties involved as well as the health facility.
The health professional or health facility named as a defendant in the complaint contends that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered.
The affidavit may also include a claim that the allegations in the complaint are not related to the care and the treatment rendered by the health professional or the health facility.
Let Haque Legal Help You With Medical Malpractice Claims
Now that you know some facts about dealing with medical malpractice, it is time to get down to it. If you require a lawyer who can assist you with ensuring that you protect your rights to your property, it is important to know that you also have a team that can help you out with your specific needs.
Our law firm is dedicated to making sure that those who are innocent will be protected by the law and the full extent of justice will be used.
Disclaimer
The article that you have read is based on general applications of the law. It is not legal advice and it is not to be construed as any legal consultation with the firm. No client-attorney relationship is created when you read the articles we have provided.
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