Virginia law requries that the plaintiff (patient) obtain a "certificate of merit" before serving a medical malpractice lawsuit. A number of questions have been raised about what is (and is not) required under the statute. Here are some answers.

What is the statute?
Va. Code 8.01-20.1 (general medical malpractice) and 8.01-50.1 (same statute but specifically for wrongful death cases.)

Which cases are affected by the rule?
The rule requires that you have a signed “certificate of merit” in your file at the time you request service of your lawsuit.

What if you arrange for the defendant to accept service?
At least one Virginia Circuit Court has held that if the defendant agrees to accept service that you are not required to have a certificate of merit in your file. Based on that case it is doubtful that defendants will continue to agree to accept service without you agreeing to certify, in any event, that you do have a certificate of merit.

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What does the certificate of merit have to include?
The statute says you must have “a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.” Note that it does not say that you must have a detailed opinion. A sample used by our office is at the end of this article.

Who is qualified to write the certification of merit?
The statute says that the certification must be signed by “an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.”

What are the requirements to be a standard of care expert in Virginia?
Familiarity with the standard of care in Virginia and an active clinical practice. A Virginia licensed physician is presumed to know the standard of care in the specialty or field of medicine in which he is qualified and certified. This presumption also applies to a physician licensed elsewhere who meets the educational and examination requirements to be licensed in Virginia. A physician testifying on the standard of care must have active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.

Who do you have to show the certification to?
No one! What the statute says is that when you request service of process you are making a representation to the court and to the defendant that you have the proper certification in your file. After service, a defendant may request that you “certify” that you have the “certification.” However, you are not required to show the certification to the defendant.

How do you “certify” that you have the “certification?”
The statute is not specific on this point. The practice at the present time in Virginia is that if defense counsel requests you to “certify” that you have the certification that you simply send a one line letter to the defense counsel that says “I certify that at the time I requested service of process against your client that I had in my file a certification as required by Va. Code 8.01-20.1.

May the defendant seek discovery about your “certifying expert.”
No. First, your certifying expert need not be your expert at trial. Even if that expert turns out to be an expert at trial, his or her status as a certifying expert is not discoverable. Recently, a defendant tried to obtain discovery regarding the qualifications of plaintiff’s certifying expert. The defendant argued that he wanted to “test” whether the certifying expert would meet the qualifications to be a Virginia expert. The court denied the discovery. The rules of discovery about “consulting experts” have not changed! Needless to say, the defendant is not entitled to the signed opinion, either. The only thing the defendant can ask for and get is your “certification” that you had the “certificate of merit” in your file before requesting service of process.

What if you didn’t have the proper certification in your file?
The statute says that if the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 (Virginia’s version of Federal Rule 11) and may dismiss the case with prejudice.

How will a court know that you didn’t have the certification?
There are no cases yet on this issue but I imagine that if you file a case and non-suit or dismiss a defendant before naming an expert, that defendant may file a motion asking that you show to the judge the certificate of merit for that defendant. If you don’t have one you could be subject to sanctions.

What about cases where no expert is required?
These cases are obviously few and far between but the statute does provide that if you reasonably believe that no expert is required that you need not have a certificate of merit in your file. When asked by the defense, you would simply reply that you do not believe that a certificate of merit is necessary. The defense could probably contest that belief in a motion.

What if I don’t know all of the facts before I request service?
It is usually the case that we do not know all of the facts before we file a lawsuit. The statute imposes a requirement that the certificate of merit be based on a “reasonable understanding of the facts.” A reasonable understanding, I would argue, can be based on many things, including the client’s version of the facts.

Is there any particular format for the “certification of merit” that is required?
No, our office uses the following format. Others are not using the bracketed language. The bracketed language is not required by the statute but sometimes makes experts feel more comfortable signing the form.

Example Certification of Merit By Expert Witness Pursuant to VA Code § 8.01-20.1
I, [name of expert], M.D., have reviewed medical records regarding the care of [client name] and discussed this case with attorneys at the law office of Benjamin W. Glass, III & Associates, PC.

[I understand in Virginia negligence is the failure to use the degree of skill and diligence in the care and treatment of a patient that a reasonably prudent doctor in the same field of practice or specialty in this state would have used under the circumstances of this case.

I understand that in Virginia a “proximate cause” means that cause which, in natural and continuous sequence produces a result, without which the result would not have occurred. I understand that there may be more than one cause of an event or damage.]

Based upon a reasonable understanding of the facts, it is my opinion that [defendant] deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.

Ben Glass
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Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney