The Specificity Standard for Affidavits of Merit

By Alex Stein

The Nevada Supreme Court has recently delivered an important decision that addresses the specificity requirement for affidavits of merit. Zohar v. Zbiegien, 334 P.3d 402 (Nev. 2014). 

The plaintiffs’ child was treated by hospital doctors for a finger injury. Allegedly, the bandage the doctors put on his finger was too tight. This mistake resulted in the venous/arterial flow compromise in the finger and in the finger’s partial amputation.

The ensuing malpractice suit was supported by an affidavit of merit from a medical expert. The affidavit described the child’s treatment, summarized the relevant medical records and photos, and specified the allegedly negligent activities of several individuals, as well as the activities of “the staff of the emergency department of [the hospital], including but not limited to the responsible physician or physicians, nurse or nurses, and/or ancillary emergency department staff.”

Because the affidavit did not identify the negligent doctors by name, the defendants argued that it was defective and asked the court to strike it out together with the suit.

The Nevada Supreme Court disagreed. The Court noted that the merit-affidavit requirement was enacted to deter baseless medical malpractice suits, fast track medical malpractice cases, and provide defendants with notice of the claims – “while also respecting the injured plaintiff’s right to litigate his or her case and receive full compensation for his or her injuries.” In tune with this statutory goal, the Court held that an affidavit only needs to show that the plaintiff’s suit is “not frivolous or filed in bad faith”; and it also must give defendants “sufficient notice of the nature and basis of the [plaintiff’s] medical malpractice claims against them.” The Court also clarified that the affidavit submitted by the plaintiffs must be read together with their complaint. The Court then ruled that the affidavit satisfied the requisite dual standard without identifying the defendants by names.

The Court added in this connection that the same approach is taken by the majority of other states and that “a harsh interpretation [of the merit-affidavit requirement] would undoubtedly deny many litigants the opportunity to recover against negligent parties when the medical records available to the plaintiff do not identify a negligent actor by name—especially in res ipsa loquitur cases in which the parties are simply unable to identify the negligent actor.”

The Court’s decision is exactly right, but the “res ipsa” dictum is puzzling. Does the Court intend to bring Ybarra v. Spangard, 154 P.2d 687 (Cal.1944), back into the law!?

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.