Many jurisdictions require some version of an affidavit of merit (AOM) in order to proceed with a malpractice claim. (Here’s a helpful 50-state survey of AOM requirements LINK). In New York, CPLR Section 3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney has reviewed the facts of the case, and has consulted with at least one physician, and that there is a reasonable basis for the commencement of the action. This requirement ensures that there is at least some legitimate basis for proceeding this the lawsuit, and can serve to reduce frivolous litigation.
Unlike medical malpractice claims, New York plaintiffs are not required to provide an AOM for nursing home claims, if the claim is based on negligence or violations of the New York Public Health Law. In distinguishing between malpractice and negligence claims, the critical factor is the nature of the duty owed to the plaintiff. Pacio v. Franklin Hospital, 63 AD3d 1120. A negligent act or omission by health care provider that “constitutes both medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice.” Bleiler v. Bodnar, 65 NYS2d 65. An alleged negligent act constitutes medical malpractice when it can be characterized as a “crucial element of diagnosis and treatment” and “an artful part of the process of rendering medical treatment to the plaintiff.” Id.
If it is unclear in the plaintiff’s complaint whether the action is sounding in negligence or medical malpractice, it can prove to be a useful defense tactic to move to dismiss, or alternatively ask the Court to clarify the action as one sounding in medical malpractice, requiring plaintiff’s counsel to comply with New York CPLR Section 3012-a and produce an AOM. Not only could this route result in a dismissal of the action by the Court, it could also serve to force plaintiff to seriously narrow and consider him claims through the necessary support of an expert review of the file.
With the increasing litigation of nursing home cases in New York State, dismissal for want of an AOM is an important tool for the defense of these claims.