March 26, 2003
MALPRACTICE CLAIMS AGAINST DESIGN PROFESSIONALS
By: George Coppolo, Chief Attorney
You asked which states require a certificate of merit in malpractice lawsuits against design professionals. You also asked how Raised Bill 1048 compares with these laws.
A certificate of merit statute generally requires the plaintiff to attach to the complaint that initiates the lawsuit a certificate from his lawyer declaring that the lawyer has consulted with an expert and the expert or lawyer has concluded that the lawsuit has merit. We identified eight states that have such a requirement for malpractice lawsuits against design professionals (architects, engineers, and land surveyers). The eight states are: Arizona, California, Colorado, Georgia, Hawaii, Maryland, Minnesota, and New Jersey.
California's law is typical. It applies to every claim, whether a direct claim or cross-claim, alleging “professional negligence” against an architect, professional engineer, or land surveyer. It requires the plaintiff's lawyer to include an affidavit with the complaint. The affidavit must state that the lawyer has consulted with at least one licensed person “in the same discipline as the defendant” and, based on this consultation, the lawyer reasonably believes that the claim has merit. But, if necessary to avoid application of the statute of limitations, the affidavit may be added within sixty days of the filing of the complaint. The certificate requirement is excused if the lawyer certifies that he made three good faith efforts to obtain such a consultation and no one agreed to do so. In addition, no certificate is required if the lawyer intends to rely solely on the legal theory that the defendant failed to inform the plaintiff “of the consequences of a procedure. Failure to comply with the statute may constitute grounds for discipline against the lawyer and dismissal of the complaint.
While the other laws are similar to California's, they are not identical. For example, the timing for filing the certificate, the expert's qualifications, and the circumstances under which the requirement either does not apply, or can be waived or excused varies.
Raised bill 1048 is similar to the law in California and the other seven states, but it differs in several respects. The bill requires the expert to be licensed in this state; the other laws do not contain such a strict requirement. The Connecticut bill does not contain exceptions other than the statute of limitation issue. The other laws usually have additional exceptions. The Connecticut bill does not allow the plaintiff to correct a defect, while some of the other laws do.
RAISED BILL 1048, “AN ACT CONCERNING AFFIDAVITS FOR MALPRACTICE CLAIMS AGAINST DESIGN PROFESSIONALS”
The bill requires the plaintiff in a law suit to recover damages resulting from an architect's, professional engineer's, or land surveyor's malpractice, to file, together with the complaint, an affidavit of an expert that contains: (1) a description of the acts or omissions the lawsuit is based on; (2) a statement of the facts he relied upon in making the claim; and (3) a statement by the expert that the acts or omissions, in conjunction with the facts, constitute a breach of the prevailing professional standard of care by the design professional. Under the bill, an expert is someone who is competent to testify in the lawsuit and who is licensed in Connecticut in the same profession as the defendant.
The plaintiff does not have to file an affidavit with the complaint if the statute of limitation will expire within ten days after the date the complaint is filed and the plaintiff or his attorney states under oath that an affidavit could not be prepared before it expires. Under such circumstances, the bill requires the plaintiff to file an affidavit within forty-five days after the date the complaint is filed. But it allows the court, on its own motion and after a hearing, to extend the time for filing an affidavit for good cause shown. And the defendant does not have to file any pleading in response to the claim or affidavit until thirty days after the date the affidavit is filed.
If the plaintiff fails to file an affidavit, the court must dismiss the lawsuit and not permit the plaintiff to cure the failure by amending the pleadings or otherwise. The bill does not permit the plaintiff to file a new lawsuit for the same malpractice claim unless the court determines that the plaintiff had an affidavit satisfying the bill's requirements by the date he filed the lawsuit and failed to file it due to excusable neglect or mistake.
The bill specifies that it does not extend any malpractice statute of limitations.
ARIZONA LAW (ARIZ. REV. STAT. § 12-2602)
If a claim against any licensed professional is asserted in a lawsuit, the claimant or his attorney must certify in a written statement filed and served with the complaint, whether or not expert opinion testimony is necessary to prove the licensed professional's standard of care or liability for the claim. If the claimant, or his attorney, certifies that expert opinion testimony is necessary, he must serve a preliminary expert opinion affidavit with the initial disclosures that are required by court rules. He may provide affidavits from as many experts as he deems necessary.
The preliminary expert opinion affidavit must contain at least the following information:
1. the expert's qualification to express an opinion on the licensed professional's care or liability;
2. the factual basis for each claim;
3. the licensed professional's acts, errors, or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability; and
4. the manner in which the licensed professional's acts, errors, or omissions caused or contributed to the damages or other relief the claimant seeks.
The court may extend the time for compliance with this requirement on application and good cause shown, or by stipulation of the parties.
If the claimant, or his attorney, certifies that expert testimony is not required and the licensed professional who is defending the claim disputes that certification in good faith, the licensed professional may apply to the court for an order requiring the claimant to obtain and serve a preliminary expert opinion affidavit as required by law. In such a motion, the licensed professional must identify the following:
1. the claim for which he believes expert testimony is needed;
2. the prima facie elements of the claim; and
3. the legal or factual basis for his contention that expert opinion testimony is required to establish the standards of care or liability for the claim.
If the court deems that compliance is necessary, it must set a date and terms for compliance.
The court on its own motion or the motion of the licensed professional, must dismiss the claim without prejudice if the claimant fails to file and serve a preliminary expert opinion affidavit after the claimant or his attorney has certified that an affidavit is necessary or the court has ordered the claimant to file and serve such an affidavit.
A claimant may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence, or expert opinions that are disclosed in a timely fashion under court rules or pursuant to court order.
Arizona's initial statute was declared unconstitutional by state courts (Hunter Contracting Co. v. Supreme Court, 947 P2d 892 (App. 1997)); AA Mechanical v. Supreme Court, 948 P2d 492 (App 1997)). Apparently, the Arizona courts found this version of Arizona's law unconstitutional for several reasons.
1. it required plaintiffs to hire experts in cases where none might otherwise be required;
2. it significantly narrowed the range of expert witnesses they may choose from, restricting them to people of the same discipline of the defendant;
3. it required them to develop a case without the benefit of discovery; and
4. it imposed the requirements as a prior condition for filing the lawsuit.
But, Arizona's current statute has been upheld against a constitutional challenge. (Bertlesan v. Sacks Terneg, P.A., 60 P. 3d. 703 (December 26, 2002)).
CALIFORNIA LAW (CAL. CIV. PROC. CODES § 411.35)
California requires the attorney representing the person bringing the lawsuit alleging malpractice on the part of an engineer, architect, or land surveyor, to file on, or before, the date the lawsuit is filed, a certificate of merit that complies with the law. The attorney must execute the certificate. The certificate must declare one of the following three things.
1. The attorney has reviewed the facts of the case, has consulted with, and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice, and practices in California, or in any other state, or who teaches at an accredited college or university and is licensed to practice in California or some other state in the same discipline as the defendant. It must also state that the attorney reasonably believes that this expert is knowledgeable in the relevant issues involving the particular case and that the attorney has concluded on the basis of the review and consultation, that there is reasonable and meritorious cause for filing the lawsuit. The person consulted may not be a party to the lawsuit.
2. Instead of the above specified information, a certificate may declare that the attorney was unable to obtain the required consultation before the statute of limitations expired. But he must subsequently file a certificate that reflects a consultation with an expert within 60 days after he files the lawsuit.
3. The third alternative is a declaration that the attorney was unable to obtain the consultation required by the law because he had made three separate good faith attempts with three separate professionals to obtain the consultation and none of those contacted would agree to the consultation.
Exception to the Certificate Requirement
The certificate requirement does not apply if the attorney representing the plaintiff intends to rely exclusively on the doctrine of res ipsa loquitur, on a failure by the professional to inform of the consequences of a procedure, or both. (Res ipsa loquitur is a Latin term that means that a thing speaks for itself or a situation speaks for itself. It refers to a legal doctrine that a plaintiff in a negligence lawsuit does not have to show exactly how the defendant caused the accident if the accident was of a type that normally could not have occurred except for the defendants negligence). The attorney must certify, when he files a lawsuit, that he is solely relying on either or both of these doctrines.
Identity of the Expert
The attorney who submits a certificate may refuse to disclose the expert's identity. This also applies to the professional or professionals he consulted. But, if the attorney claims that he was unable to obtain the consultations, the court may require him to divulge the names of the professionals who refused the consultation.
Consequence of Not Filing the Certificate
The court may dismiss the lawsuit if the plaintiff's attorney failed to comply with the certificate law. A violation may also constitute unprofessional conduct on the part of the attorney and be grounds for discipline against him.
When the litigation is concluded in favor of any party for whom a certificate of merit was filed, or for whom a certificate should have been filed, the trial court may, upon the motion of any party or upon its own motion, verify compliance by requiring the attorney to execute a certificate to reveal the name, address, and telephone number of the people he consulted with and relied upon in preparation of the certificate. This information may only be disclosed to the trial judge in chambers, and not in the presence of the person who filed the motion. If the court finds that there has been a failure to comply with the certificate requirement, it may order a party or his attorney, or both, to pay any reasonable expenses, including attorneys' fees incurred by another party as a result of the failure to comply.
COLORADO LAW (COL. REV. STAT. ANN. § 13.20-601 AND 602)
In every action for damages or indemnity based upon the alleged professional negligence of a licensed professional, the plaintiff or his attorney must file with the court a certificate of review for each licensed professional named as a party within sixty days after the service of the complaint, unless the court determines that a longer period is necessary for good cause shown.
A certificate of review must also be filed with respect to every such lawsuit filed against a company or firm that employed a licensed professional at the time of the alleged negligence, even if he is not named as a party in the lawsuit.
If a certificate is not filed and if the licensed professional defending the claim believes that an expert is necessary to prove the claim of professional negligence, the defense may ask the court for an order requiring filing of such a certificate. The court must give priority to deciding such a motion, and the court may not allow the case to be set for trial without a decision on such motion.
The plaintiff's attorney must execute the certificate of review declaring that:
1. the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and
2. the professional who has been consulted has reviewed the known facts, including such records, documents, and other materials, which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim does not lack substantial justification.
The court may require the identity of the licensed professional who was consulted to be disclosed to the court and may verify the certificate's content. The identity of the professional does not have to be revealed to the opposing party or parties in the civil action.
The certificate of review must state that the person consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, he is competent to express an opinion as to the negligent conduct alleged.
GEORGIA LAW (GA CODE ANN. § 9-11-9.1)
Georgia requires that a person bringing a malpractice lawsuit against an architect, land surveyor, or professional engineer file with the lawsuit an affidavit of an expert competent to testify, which sets forth specifically at least one negligent act or omission claim and the factual basis for each such claim. This law also applies to malpractice lawsuits filed against 21 other professionals, including attorneys, certified public accountants, social workers, and various health professionals.
The duty to file a certificate at the same time the lawsuit is filed does not apply to any case in which the statute of limitations will expire, or when there is a good faith basis to believe it will expire within 10 days of the date of filing. But, the person bringing the lawsuit must allege the problem with the statute of limitations and that the required affidavit could not be prepared in time. In such case, the law gives the person bringing the lawsuit 45 days to produce the affidavit. The law also authorizes a trial court, after hearing and for good cause, to extend this time if it determines that justice requires it.
If the plaintiff files an affidavit that does not comply with this requirement, the law authorizes the court to dismiss the lawsuit. But the law allows the plaintiff to cure the alleged defect by amending his complaint within 30 days.
HAWAII LAW (HAW REV. STAT. § 672-2.5)
Hawaii prohibits the bringing of a malpractice claim against a professional engineer, architect, surveyor, or landscape architect unless it is accompanied by a certificate of merit. Just as in the case of California, Hawaii's certificate must declare one of three things.
1. The certificate may claim that the attorney has reviewed the facts of the case, consulted with at least one design professional licensed to practice in Hawaii or some other state, or who teaches at an accredited college or university and is licensed to practice in Hawaii or some other state in the same discipline as the design professional against whom the claim is made, and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action. It must also declare that the attorney has concluded on the basis of this review and consultation that there is a reasonable and meritorious cause for filing the claim. The person consulted may not be a party to the case.
2. The law allows the certificate to state that the attorney was unable to obtain consultation as required by the law because of the statute of limitations. If the attorney claims this in a certificate, the law requires that a certificate satisfying the laws' requirements be filed within 30 days after the attorney brings the claim.
3. As a third alternative, the law allows the certificate to state that the attorney was unable to obtain the consultation required by law because he had made three separate good faith attempts with three separate design professionals to obtain the consultation and none of those contacted would agree to such a consultation.
A certificate is not required where any attorney intends to rely solely on a failure to inform of the consequences of a procedure. In such case, the attorney must certify when he files the claim that he is relying solely on this legal theory and for that reason is not filing the certificate.
Under the law, the attorney may not be required to disclose the names of the design professionals he consulted with to fulfill the laws' requirements.
MINNESOTA LAW (MINN. STAT. ANN. § 544.42)
Minnesota requires the plaintiff in any lawsuit against a land surveyor, landscape architect, architect, or engineer alleging negligence or malpractice in the rendering of professional services where he will use expert testimony to establish his case, serve on the defendant, with the lawsuit, an affidavit that satisfies the law's requirements. The affidavit must be drafted by the plaintiff's attorney and state that the facts of their
case have been reviewed by the attorney with an expert whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial and that, in the expert's opinion, the defendant deviated from the applicable standard of care, and by that action caused injury to the plaintiff.
The law allows the affidavit to state that the expert review required by the law could not reasonably be obtained before the lawsuit was filed because of the applicable statute of limitations. As a third alternative, the law allows the affidavit to state that the parties have agreed to a waive the expert review, or the person bringing the lawsuit has applied for a waiver or modification by the court.
The affidavit requirement may be waived or modified if the court, upon an application served when the action begins, determines that good cause exists for not requiring the certification. Good cause includes, but is not limited to, a showing that the lawsuit requires discovery to provide a reasonable basis for the expert's opinion or the unavailability, after a good faith effort, of a qualified expert at reasonable cost. If the court waives or modifies the expert review requirement, it must establish a scheduling order for compliance or for discovery. If a court denies a request for a waiver, the plaintiff must serve on the defendant an affidavit that complies with the law within 60 days of the denial.
Identification of Experts to be Called
Minnesota also requires that the plaintiffs attorney file an affidavit stating (1) the identify of each person whom he expects to call as an expert witness at trial to testify with respect to the issues of negligence, malpractice, or causation; (2) the substance of the facts and opinions to which each expert is expected to testify; and (3) a summary for the grounds of each opinion. This affidavit must be filed within 180 days after the lawsuit is filed.
Additional Time Periods and Additional Expert Witnesses
The parties by agreement, or by the court for good cause shown, may provide extensions of time for satisfying the various requirements of the law. The law also specifies that it does not prevent any party from calling additional expert witnesses.
People Who are Not Represented by Attorneys
If a person is not represented by an attorney, the law requires him to sign the affidavits and makes him subject to the legal requirements as if he were represented by an attorney.
Penalty for Non-Compliance
The failure to comply with the affidavit required by law results in a mandatory dismissal of the lawsuit with prejudice (with prejudice means that lawsuit may not be refilled).
Consequences of Signing Affidavit
The signature of the party or his attorney, constitutes a certification that he has read the affidavit and that to the best of his knowledge, information, and belief formed after a reasonable inquiry, it is true, accurate, and made in good faith. A certificate made in violation of this requirement subjects the person who signed the affidavit to reasonable attorneys' fees, costs, disbursements, and other damages that the court may determine.
NEW JERSEY LAW (NJSA § 2A:A-26 TO 29)
The law requires the plaintiff, in any lawsuit for damages for personal injuries, wrongful death, or property damage resulting from an alleged act of malpractice or negligence by a licensed architect, engineer or land surveyor to provide each defendant with an affidavit of an appropriate licensed person that there is a reasonable probability that the care, skill, or knowledge exercised or exhibited in the practice of work fell outside acceptable professional or occupation standards. The affidavit must be filed within 60 days after the date that the defendants have to answer the complaint in the lawsuit. The court may grant one additional period, not to exceed 60 days, to file the affidavit upon a finding of good cause.
The law requires that the person executing the affidavit be licensed in New Jersey or any other state and have particular expertise in the general area or specialty involved in the lawsuit, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the lawsuit, for a period of at least five years. The expert may have no financial interest in the outcome of the case, but he may testify as an expert witness in the case.
Sworn Statement in Place of Affidavit
An affidavit is not required if the plaintiff provides a sworn statement, instead of the affidavit, setting forth that (1) the defendant failed to provide him with records or information having a substantial bearing on preparation of the affidavit; (2) a written request for such records along with, if necessary, a signed authorization for the release of the records or information, has been requested by certified mail or personal service; and (3) at least 45 days have elapsed since the defendant received a request.
Failure to Provide Affidavit or Statement
If the plaintiff fails to provide an affidavit or a statement as provided by law, the case is deemed not to state a cause of action and must be dismissed.