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An unwise 'reform' measure: many states require that plaintiffs enlist certified witnesses to authenticate their claims before filing a lawsuit. This increases costs and delays - and may infringe on constitutional rights.

Article Excerpt
To reduce the number of "frivolous" lawsuits against health care providers and other professionals, many states require plaintiffs to provide a "certificate of merit." This is the generic term applied to a variety of special certifications--usually supplied by medical experts--that verify the legitimacy of claims involving professional standards of care. At least 16 states (1) now require some form of expert certification in medical negligence cases, but an examination of these increasingly popular requirements reveals that they are of little benefit and raise serious constitutional and practical concerns.

Nevada enacted a certification requirement in the state liability "reform" law in 2002. It provides:

If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice. (2)

Certification requirements vary from state to state, differing with regard to who must sign the certificate, what it must contain, and when it must be submitted.

In some states--such as Illinois, Minnesota, Missouri, New York, and North Carolina--plaintiff attorneys need merely certify that a qualified expert has been consulted and agrees that the claim is meritorious. In Georgia, Maryland, Michigan, and New Jersey, the certification must be signed by the expert, not just the attorney.

Some states impose eligibility requirements on the certifying expert that go well beyond those imposed on a testifying expert. Federal Rule of Evidence 702--a model for many states--specifies only that anyone who is "qualified as an expert by knowledge, skill, experience, training, or education" may give expert testimony. A certifying expert in Texas, however, must be a medical practitioner when the claim arises or when he or she testifies. (3) In Illinois, the consulting expert must have practiced or taught in the relevant area within six years prior to the filing. (4) Maryland has gone so far as to disqualify for certification purposes any expert who devotes more than 20 percent of his or her professional time to "activities that directly involve testimony in personal injury cases." (5)

Some states, including Georgia and New Jersey, require that the certifying expert limit his or her opinion...