On December 19, 2013, the Court of Special Appeals of Maryland (“Appellate Court”), Maryland’s intermediate appellate court, issued its written opinion in a Maryland medical malpractice appeal where the trial judge had found that the plaintiff’s lawyer had failed to jump through all of the necessary procedural hoops in order for the plaintiff to have her Maryland medical malpractice case heard by a jury.
Maryland medical malpractice claims are required to comply with the provisions of the Maryland Health Care Malpractice Claims Act (“HCMCA”) that is contained in the Annotated Code of Maryland, Courts & Judicial Proceedings Article (“CJP”), § 3-2A-01, et seq. The HCMCA requires that a Maryland medical malpractice claim be first filed with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”) and that the claim be submitted to an arbitration panel for an initial assessment before the matter can be submitted to the circuit court for a final determination.
Arbitration is a condition precedent under the HCMCA. The HCMCA further requires that the claimant file a certificate of a qualified expert within ninety days of the filing of the statement of claim, along with a report from the qualified expert. The parties can elect to waive the arbitration requirement after the filing of the certificate of qualified expert and the expert’s report with the HCADRO, and thereafter file a complaint in the appropriate circuit court.
In a 2006 case, the Court of Appeals of Maryland (Maryland’s highest appellate court) held that the failure to attach a proper report to the expert’s certificate would result in the case being dismissed without prejudice. In response, the Maryland General Assembly enacted CJP § 5-119, which applies only to a civil action or claim that is dismissed once for failure to file the required expert’s report.
Under CJP § 5-119, if a party’s civil action or claim is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the parties, on or before the later of the expiration of the applicable period of limitations or sixty days from the date of dismissal.
In a 2007 case, the Court of Appeals of Maryland held that the expert’s certificate was a condition precedent to litigating a medical malpractice claim and that the claim should be dismissed if the expert’s certificate did not identify with specificity the licensed professionals against whom the claims were brought and state that the defendants breached the standard of care proximately causing the plaintiff’s injuries.
In the present appeal, the trial court had dismissed the complaint against the defendant hospital without prejudice because the plaintiff’s expert’s certificate failed to specifically identify the licensed professionals at the defendant hospital whom the plaintiff alleged breached the standard of care. The plaintiff subsequently filed a second complaint against the hospital in the circuit court without first filing in the HCADRO.
The hospital filed a motion to dismiss the second complaint in the circuit court, arguing that the statute of limitations had expired and that the plaintiff failed to comply with the HCMCA when the plaintiff filed the second complaint in the circuit court instead of beginning again before the HCADRO. The trial court dismissed the plaintiff’s medical malpractice claim, and the plaintiff appealed to the Appellate Court.
The Appellate Court held that neither CJP § 5-119 nor any other provision of law permitted the plaintiff to re-file her claim in the circuit court without in the first place filing a proper expert’s certificate in the proceeding before the HCADRO. The Appellate Court stated that if a proper certificate has not been filed, then the case should not have been in court in the first place and should be dismissed with prejudice in accordance with the HCMCA.
Source Celeste A. Puppolo, Personal Representative of the Estate of Nancy Puppolo v. Adventist Healthcare, Inc., et al. No. 1463, September Term, 2012.
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