What determines a medical malpractice case?

by John D. Holschuh Jr., Lawyer Referral Service Panelist

In determining if a case involves medical malpractice, it does not matter what the potential client or I as a lawyer might think about the case. In Ohio, whether a case is medical malpractice or not depends upon the expert opinion of a licensed physician, who after reviewing the medical records of the potential case, makes a determination as to its merits. In Ohio, Civil Rule 10 requires that before a medical malpractice complaint may be filed against a physician, there needs to be a sworn affidavit from a physician stating that he or she has reviewed the pertinent medical records and that in his or her opinion there was medical negligence resulting in harm to the client (Kentucky does not have this requirement). There is a provision where you can file a motion to request additional time to file the affidavit.

Additionally, not only does there have to be an affidavit, but the physician signing the affidavit has to be a licensed physician who spends a majority of his or her professional time in the active clinical practice of medicine and/or its teaching at an accredited institution. Further, the physician has to be in the same field of practice or specialty as the area of the potential claim.

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