In its unpublished opinion filed on January 15, 2019, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) held: “To the extent that Ms. Toussaint’s CQE [Certificate of Qualified Expert] failed to specifically identify DCH’s unnamed agents who allegedly breached the standard of care, any claim against DCH through those unnamed agents is barred under Dunham. Accordingly, the trial court did not err in granting DCH’s partial motion to dismiss as it pertained to any unnamed agents in the CQE.”
The Maryland Healthcare Malpractice Claims Act (“Act”), codified at Md. Code (2013 Repl. Vol.) §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article (“CJP”), “in general, “governs procedures for all ‘claims, suits, and actions . . . by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought.’” To initiate a claim under the Act, “a person with a medical malpractice claim [must] first file that claim with the Director of the [HCADRO].” Within 90 days after filing a claim with the HCADRO, the plaintiff “must file a [CQE] . . . attesting to a defendant’s departure from the relevant standards of care which proximately cause the plaintiff’s injury.” Dunham v. Univ. of Md. Med. Ctr., 237 Md. App. 628, 645-46 (2018).
The plaintiff/appellant asked in her appellate brief “whether, in a [CQE], a plaintiff must name not only a hospital, but all health care providers employed by or working for the hospital who were allegedly negligent, or whether it is sufficient to identify, at the outset of the lawsuit, the care that is in question, name identifiable health care providers, and to then learn through the discovery process if individuals should be added to, or dropped from, the case.”
The Maryland Appellate Court responded that “Maryland law clearly requires the plaintiff to specifically name all allegedly negligent healthcare providers in the CQE,” citing the Durham case that held “Here, the [CQE] filed with the statement of claim . . . stated that [the medical centers], acting through their agents, servants, or employees, breached the standard of care, but it did not specifically identify any individuals who breached the standard of care. Without more detail regarding the licensed professionals who allegedly breached the standard of care, thereby making [the medical centers] liable, the [CQE] did not contain the ‘information necessary for evaluating whether the defendant breached the standard of care.’”
In the Maryland medical malpractice case the Maryland Appellate Court was deciding, the plaintiff/appellant did not challenge on appeal the trial court’s finding that she possessed sufficient medical record documents which “contained information identifying non-named physicians that could have been used to further investigate their actual involvement in Mr. Toussaint’s care.” Importantly, in Retina Grp. of Wash., P.C. v. Crosetto, 237 Md. App. 150, 170-71 n.12 (2018), the Maryland Appellate Court had stated, in part: “There may be situations in which, until discovery is undertaken, the plaintiff cannot determine the name of a health care provider agent whose conduct is implicated in causing the injury or death at issue. Until clarified in discovery, the health care provider agent can be identified by position or role. Similarly, there may be situations in which only through discovery does it become known that a particular health care provider agent was involved in the care at issue at all. Under the holding in Debbas v. Nelson, 389 Md. 364, 885 A.2d 802 (2005), the plaintiff’s certifying expert’s supplemental certificate, filed after the close of discovery, can attest to a breach of the standard of care by such an agent and, of course, should fully identify all health care provider agents alleged to have breached the standard of care.”
Source Toussaint v. Doctors Community Hospital, No. 1471 September Term, 2017.
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