In New York, a Certificate of Merit is a legal requirement for plaintiffs filing a medical malpractice lawsuit. The purpose of this certificate is to ensure that the lawsuit has merit and is not frivolous, thereby reducing the number of baseless claims that could potentially burden the courts and the medical community. The Certificate of Merit is a written statement from the plaintiff's attorney confirming that they have consulted with a licensed medical expert who has reviewed the case and must meet the following requirements:

1. They must be knowledgeable in the relevant medical field and have experience treating patients with the same medical issues as the plaintiff.
2. They must be currently licensed to practice medicine or must have been licensed at the time of the alleged malpractice.
3. They must have reviewed the facts of the case and determined that there is a reasonable basis to believe that the defendant(s) deviated from the accepted standard of care, resulting in harm to the plaintiff.

The Certificate of Merit must be filed with the court at the time of, or within 90 days after, the filing of the initial complaint. Failure to file a Certificate of Merit may result in the dismissal of the case. It's important to note that the Certificate of Merit is not a guarantee of the plaintiff's success in the lawsuit but serves as an initial screening mechanism to ensure that the case has some basis in fact and is not a frivolous claim.

The recent case of Hicks v Sinclair, which was decided by New York Supreme Court Justice John J. Kelley, provides an example of the danger in failing to file a Certificate Merit as required by New York Courts.

In Hicks, the plaintiff brought an action to recover damages for medical malpractice on January 5, 2022. Following a series of procedural motions, including the plaintiff seeking permission from the country of Australia to serve one of the named defendants, Catherine Sinclair, MD, because since the incident she had moved to Australia and become a full time-resident, Hicks moved to enter a default judgment against Sinclair for her failure to Answer the complaint. Justice Kelley denied Hick's motion because her attorney had failed to include an affidavit or affirmation from a medical expert in support of the default motion.

In Hicks, the failure to attach a Certificate of Merit, resulted in plaintiff's motion for default being denied. But more important, a plaintiff's failure to file a Certificate of Merit may result in the medical malpractice case being dismissed altogether.