Does Washington Require a Certificate of Merit in Medical Malpractice Cases?

According to the Washington State Office of the Insurance Commissioner, insurers and self-insurers closed 3,043 medical malpractice claims in Washington between 2019 and 2023, including 1,437 claims with indemnity payments totaling about $1 billion. Across the nation, medical malpractice claims are on the rise, but confusion lingers around the filing and litigation processes—particularly because requirements tend to vary from state to state.

While many states require plaintiffs in medical malpractice suits to provide certificates of merit as a prerequisite for filing a claim, Washington does not. Here’s a brief overview of Washington’s certificate of merit policy and an explanation of how victims of medical malpractice can leverage other evidence and resources to build comprehensive claims for compensation.

What is a certificate of merit?

In simplest terms, a certificate of merit is a legal document that supports a victim’s claims of medical malpractice. Most of the time, a certificate of merit is a sworn statement from a qualified medical professional indicating that the harm or lack of care suffered by the victim likely meets the standard of medical malpractice.

Many states require the certificates because they see them as helping to “weed out” claims that lack sufficient basis for further legal action. It’s true that these certificates can add veracity to a plaintiff’s claims, but this filing requirement has raised concerns about accessibility and equity within the broader legal system.

What information is in a certificate of merit?

Whether required or voluntarily filed, a certificate of merit usually contains a few key components in order to maximize its legal value and meet state-mandated requirements. Because these certificates are specifically intended to provide legal “back-up,” so to speak, it’s important that they contain objective information that will support a victim’s claim. In most cases, a certificate of merit completed by a medical provider will include:

• Information about the provider’s professional credentials
• A list of all the medical records and documentation reviewed by the provider
• The provider’s opinion of what medical standards were violated in the victim’s case and how, specifically, they were violated
• The provider’s opinion of how those violations directly caused the victim harm
• The provider’s underlying reasoning or basis for their opinions

The practice of medicine can be somewhat subjective, which is why getting additional professional opinions in the mix can be so vital to the integrity of a malpractice claim. If another professional with no direct link to the case can review the facts and conclusively state that they could and would have done things differently than the provider in question, it may be easier for the victim to make a compelling case for compensation.

Do I have to file a certificate of merit in Washington state?

As in other states, Washington state law once required plaintiffs in medical malpractice cases to file certificates of merit as a prerequisite for filing a claim. Under this law, anyone who failed to provide one of these certificates was at risk of having their case thrown out before it even began. While this requirement is not unusual (about 30 states maintain some form of certificate-of-merit or pre-suit affidavit requirement), some Washington plaintiffs and their legal teams voiced concerns that this prerequisite was unduly burdensome for claimants.

That’s because it can be very expensive to hire a medical professional to review and issue an opinion about a case. Subsequently, some would-be plaintiffs reported that this filing requirement essentially barred them from receiving equitable access to the judicial system. Notably, the courts agreed with this assessment, and in 2009, the Washington Supreme Court ruled the state’s certificate of merit requirement unconstitutional.

As a result of this ruling, plaintiffs in medical malpractice cases are no longer required to file certificates of merit prior to taking legal action against a negligent medical provider. Instead, plaintiffs and their representatives must rely on a wealth of evidence to build strong cases for accountability and compensation.

Other key components of medical malpractice cases

In lieu of a certificate of merit from a qualified medical professional, plaintiffs in medical malpractice cases must leverage other vital evidence components to demonstrate that their medical provider fell short of their legal duty of care and subsequently caused them significant harm. In order to compile this supporting evidence, most victims of medical malpractice choose to enlist the services of experienced legal counsel who understand the unique challenges associated with these cases.

Your attorney will likely spend a significant amount of time reviewing records and gathering supporting documentation to paint a clear and decisive picture of the harm you suffered and its causes. Some of the evidence commonly leveraged in medical malpractice claims includes:

• Medical records: Detailed documentation of all the care you received before, during, and after your malpractice incident can help support causation and stave off claims that pre-existing conditions or insufficient aftercare caused your injuries.
• Photo/video evidence: Pictures of physical injuries, medical imaging such as X-rays or MRIs, and even security footage from healthcare facilities can clarify timelines and demonstrate the extent of the harm you suffered.
• Expert testimony: Just as certificates of merit provide an objective professional opinion, expert testimony from medical professionals and specialists can back up your claims and help to explain complex medical issues to the judge and/or jury.
• Eyewitness testimony: Other medical professionals, hospital administrators, friends/family members, and even the plaintiff can testify to how certain events unfolded or how the victim has been impacted by their provider’s lack of care.

The more documentation you can pull together, the more likely it is that you and your team can build a clear and comprehensive case. As we discussed earlier, medical malpractice claims can be challenging due to the subjective nature of some medical decisions. Some types of evidence, however, are more objective in nature, and compiling irrefutable supporting documentation is one of the best ways to push back against common defense tactics.

Final thoughts

By overturning the state’s certificate of merit requirement, the Supreme Court of Washington removed one significant barrier many victims of medical malpractice historically encountered in the pursuit of justice. While a certificate of merit can be a helpful piece of supporting documentation in a medical malpractice case, there are many other resources plaintiffs and their attorneys can leverage into strong and compelling cases.

At Smith McBroom Injury and Accident Lawyers, we understand the important role that supporting evidence, testimony, and documentation can all play in a successful medical malpractice claim. We aren’t afraid to stand up to the major players in the healthcare space to ensure no member of our local community is taken advantage of or otherwise harmed by the medical professionals they trust in their time of need.

If you or a loved one has been the victim of medical malpractice, there is compassionate legal support available to help you pursue accountability. Give us a call today or fill out our online contact form to schedule a free case evaluation, and let’s discuss how our team can help you build the strongest possible case in your fight for compensation.