When the Legislature took up tort reform in the 1980s, one of the requirements they imposed on medical malpractice actions was that a certificate of merit be filed along with the complaint. It essentially requires an attorney bringing a malpractice action to certify, based upon a consultation with a physician, that the claim has merit. Although it is a fairly simple procedure, it has occasionally necessitated litigation over the impact of a failure to so certify, as well as the nature of the certification required in certain types of cases. Thirty-seven years after the passage of this requirement, the courts continue to grapple with these questions. In this column, we review the evolution of those decisions. First, however, it is appropriate to describe the pertinent statutory provisions.
The certificate of merit is required by CPLR 3012-a, which applies to medical, dental and podiatric malpractice actions. For the sake of brevity, our discussion of the statutory provisions is limited to the context of medical malpractice actions. Subdivision (a)(1) requires that a complaint asserting a medical malpractice cause of action be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that “the attorney has reviewed the facts of the case and has consulted with at least one physician … who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action …”
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