By Kelly J. Wilbur, Esq.

Medical malpractice actions are unusual in that many states require patients (i.e. plaintiffs) to demonstrate that they have expert witness support for their medical malpractice allegations before suit is filed. Such requirements are grounded in either state statutes or regulations. These rules are designed to discourage frivolous malpractice lawsuits and encourage pre-suit settlements of claims. In essence, the rules won’t allow a medical malpractice case to go forward unless a doctor has signed a statement under oath offering an expert opinion that the case has merit, otherwise known as an affidavit of merit. Below is a sample affidavit of merit.

I, John Doe, M.D. having been duly sworn, state:

  1. I am licensed to practice medicine in Ohio, and I was also licensed at all times applicable to this litigation.
  2. I am board certified in orthopedic surgery, and I was so certified at all times relevant to this litigation.
  3. I am engaged in the full-time practice of orthopedic surgery and I was so engaged at all times relevant to this litigation.
  4. I am familiar with the standards of care regarding the surgical care and treatment of a pilon fracture, which was severely comminuted and was intra-articular.
  5. I have reviewed the Notice of Intent prepared by earlier counsel for Sam Jones.
  6. I have reviewed the x-rays and medical records submitted to me by counsel for Sam Jones.
  7. The standards of care require that the surgeon appreciate that this type of fracture increases the risk of a post-operative infection, due to limited soft tissue coverage, the nature of the comminution the decreased blood flow to the area and other considerations; therefore any signs or symptoms of infection must be immediately observed and aggressively treated by the surgeon in a timely manner. These same standards require that weight bearing and physical therapy involving stress in the area be delayed until there is adequate bone healing to withstand these activities.
  8. Smith breached the applicable standards in the following ways:
  9. He failed to respond to information from the patient and/or from the physical therapists, about a drainage from the surgical area, in an aggressive and timely manner.
  10. He failed to admit Mr. Jones for intravenous antibiotic therapy and debridement if necessary.
  11. He prescribed physical therapy and allowed weight bearing prematurely, unless he had adequate radiographic evidence of sufficient bone healing to permit such activities. (The x-rays I received do not completely document the progression of healing at various times.)
  12. Smith would have complied with applicable standards of care, if he had recognized the signs and symptoms of infection and if he had addressed them as detailed above, and if he delayed weight bearing and strenuous physical therapy, until he had adequate radiographic evidence of sufficient bone healing to permit such activities.
  13. As a result of the failure to timely and aggressively treat the infection, and as a result of possible premature weight bearing and physical therapy, Sam Jones’ fracture became severely infected, progressed to osteomyelitis and resulted in a non union.


About the Author

Kelly J. Wilbur, Esq., is a Trainer and Consultant for SEAK, Inc – The Expert Witness Training Company. She was an insurance defense and commercial litigator for five years prior to joining SEAK. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law in 2015 and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. While at St. Mary’s, Kelly was a member of the nationally ranked varsity sailing team and was a two-time All American. Kelly has experience preparing experts for deposition and trial testimony. Phone:  617-791-6802 Email: