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Affidavit Of Merit In Medical Malpractice Cases

By: Raymond P. Mooney, PA-C, DFAAPA
Tel: 517-902-1091
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An affidavit in legal terms is a sworn statement that assures the merit of your claim. In a medical malpractice case it is produced, at the request of the attorney, after the expert provider (physician, physician assistant/nurse practitioner) has reviewed the medical records and believes that the standard of care was breached and it was a cause that contributed to the patients injuries. Many states will not permit a physician assistant to testify as to causation, however several will. The attorney will tell you what your affidavit must contain. The exact wording required in the affidavit varies by jurisdiction. However, all affidavits of merit are required to contain three elements; 1) an expert witness must sign the document and generally they must be in the same field of medicine (orthopedics would not review a cardiology case). However, when it comes to physician assistants some jurisdictions will permit physicians to opine to the standard of care for physician assistants if the have worked with or been involved in the education of physician assistants. However, many times an attorney will still make the decision to retain a physician assistant expert. 2) the medical expert personally reviewed attorney’s case and 3) The expert believes your case has merit and the expert will testify that the standard of care was breached and in what manner.

Below is a general example of an affidavit of merit. Remember this is a general example and different legal jurisdictions may require a different format.

Mr. Jeffrey Harrison was a patient of Dr. E. Jon Jennings. He carried the diagnosis of heterogonous factor V Leiden deficiency, which was diagnosed after he developed a blood clot of the left saphenous vein in July of 2001. This clot did not involve the deep venous system.

On September 11, 2001, Mr. Harrison was diagnosed with active protein-C resistance, and eventually, Dr. Henry diagnosed him with heterozygous factor V Leiden with positive lupus anticoagulant. Dr. Henry explicitly reviewed the disease process with Mr. Harrison as it related to active anticoagulation and postoperative anticoagulation.

Active daily anticoagulation was not recommended. However, Dr. Henry felt that the use of postoperative Lovenox or Heparin was required, along with compression stockings, physical activity, and the avoidance of extended trips without frequent breaks for mobilization.

On or around February 7, 2003, he was evaluated by Dr. Lowe for a complaint of right-calf pain/redness. This was diagnosed as superficial phlebitis. A lower-right extremity venous ultrasound was performed and was negative for a deep venous thrombosis.

The records support the position that Mr. Harrison addressed his factor V condition seriously. He took a baby aspirin a day, wore Jobst’s bilateral thigh-high stockings, was evaluated with an ultrasound of the lower-right leg due to right-calf pain on February 7, 2003, and subsequently consulted with Dr. Henry on several occasions; the last visit, on March 3, 2003, was to review his options and obtain additional recommendations, if available.

In 2002 and 2003, Mr. Harrison was evaluated by two additional medical providers, Dr. Michael C. McHenry, DPM, and Dr. Proctor, MD, from Two Rivers Dermatology. In the past medical history, Mr. Harrison’s factor V Deficiency is not mentioned. Considering the specialties involved and the lack of any surgery being entertained, this is not surprising. 

On January 16, 2009, Mr. Harrison completed a patient inventory sheet for Dr. Jeffrey Mir, an orthopedic surgeon, in which he explicitly stated that he had factor V when completing the initial patient history screening form. This would have been consistent with the instructions of Dr. Henry concerning any surgeries he may have and indicates his awareness of the importance of postoperative anticoagulation.

On November 27, 2012, Mr. Harrison called Dr. Jennings’s office with complaints of chest heaviness and shortness of breath with minimal exertion. Mr. Harrison was instructed to go to an emergency room or a walk-in clinic. He elected to go to the local walk-in, where PA Fredericks saw him. 

Physician Assistant ("PA") Fredericks had the most crucial information that she needed to develop a differential diagnosis concerning Mr. Harrison—his documented complaint of ‘chest heaviness and shortness of breath on minimal exertion.’ 

Instead of including the taking of a detailed history followed by a physical examination, as required by the standard of care, and developing an appropriate differential diagnosis, the encounter instead consisted of an electronic medical record template that, in a cursory manner, addresses a hypothetical patient presenting with a viral respiratory infection, combined with clinically unimportant pertinent positives and negatives.

The standard of care requires that a 44-year-old obese white male who has a documented coagulopathy and is complaining of new-onset shortness of breath and chest heaviness undergo an oxygen saturation determination, a chest X-ray, and an electrocardiogram. This is supported by evidence-based medicine. The fact that these tests were not done and that the patient’s lower extremities were not examined for swelling and/or tenderness further supports the position that a differential diagnosis was not undertaken and that PA Fredericks merely followed what the reception desk entered as a reason for the visit: ‘URI.’

The standard of care requires a provider to obtain a patient’s history. It is a breach to ignore a stated complaint of chest heaviness and shortness of breath, which can result in death if not evaluated correctly. Mr. Harrison’s appropriate knowledge and due diligence concerning his factor V deficiency is documented in the medical records.

Mr. Harrison was not a medical provider and therefore not expected to possess any knowledge of medicine. His complaints were causally related to DVT and pulmonary embolism. PA Fredericks was required to know this and appreciate the correlation with pulmonary thromboembolism. The above facts demonstrate Mr. Harrison’s knowledge and compliance concerning his factor V deficiency, thus indicating that PA Fredericks performed only a cursory review of the patient’s past medical history.

The various criteria that have been developed to ‘assist’ providers with evaluating a patient for a possible pulmonary embolism—specifically the Wells Criteria, the Modified Wells Criteria, the Geneva Score, the Revised Geneva Score, and the Pulmonary Embolism Rule-Out Criteria—are not valuable in this situation because they all require evaluation of the lower limbs in some context and none address the risk factor of a patient with a coagulopathy. This patient did not have an examination of the lower extremities, making these algorithms unusable.

A patient with a deep venous thrombosis does not have to have pain or notice swelling to have a significant clot. The respiratory rate does not have to be elevated, you do not need to have cancer or hemoptysis or be tachycardic. Being over the age of 40 and obese with new-onset chest pain, tightness, heaviness, pressure, aching, etc., combined with shortness of breath, automatically places the diagnosis in the differential. Factor V Leiden deficiency puts it at the top of the list. If PA Fredericks checked Mr. Harrison’s oxygen saturation and examined his lower extremities for tenderness and/or swelling, one or both would have likely indicated concern.

Continuity of care requires access to all the patient’s medical records for a thorough evaluation. This incident occurred during office hours. Nothing prevented PA McKee from calling the patient’s primary care provider, discussing the patient with Dr. Brandenberger, and reviewing his history and the recommendations of his primary care provider since 1982.

Deviations in the Standard of Care:

  1. Failure to address the patient’s actual physical complaints of chest heaviness and shortness of breath.
  2. Failure to obtain an oxygen saturation, an electrocardiogram, and a chest X-ray in a 40-year-old obese male with new-onset chest heaviness and shortness of breath.
  3. Failure to examine the patient’s lower extremities, the standard of care of which would be required in any patient with similar complaints.
  4. Failure to refer the patient to the emergency room if any of the tests mentioned in number two were unavailable.

I hold these opinions to be true and accurate beyond a reasonable degree of medical probability. These opinions are not intended to be all-inclusive, and additional breaches may well be mentioned during this expert’s discovery deposition. I reserve the right to amend or modify these opinions as the discovery process progresses and when additional information becomes available.

Raymond P. Mooney, PA-C, DFAAPA is a Physician Assistant with 46 years of experience in Family Practice, Emergency Medicine, Urgent Care, and Correctional Medicine as well as over twenty years of experience in reviewing medico-legal cases. He has extensive experience in deposition as well as trial testimony in state as well as federal court. With a diverse background as a Physician Assistant, Mr. Mooney has been providing the legal industry with his expert opinion for over 20 years. He is available to objectively evaluate cases for alleged medical negligence or a deviation in the standard of care on physician assistant practice.

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