In its opinion filed on September 28, 2016, the Court of Special Appeals of Maryland (“Appellate Court”), which is Maryland’s intermediate appellate court, affirmed the trial court’s striking of the plaintiff’s medical malpractice expert because the expert failed to satisfy the “Twenty Percent Rule” contained in the Annotated Code of Maryland, Courts & Judicial Proceedings Article, § 3-2A-04(b)(4). The Appellate Court further held that it is the burden of the party who offers the expert to show that the expert satisfies the Twenty Percent Rule.
Maryland’s Twenty Percent Rule
At the beginning of a Maryland medical malpractice case, the plaintiff must file a certificate of qualified expert in which the claimant must attest that the defendant(s) departed from standards of care and that the departure(s) proximately caused the alleged injury (§ 3-2A-04(b)(1)(i) of the Courts & Judicial Proceedings Article (“CJ”)). The term “qualified” refers to a statutory threshold that applies only to certifying and standard of care experts in medical malpractice cases. “Qualified” experts “may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims,” which limitation is known as the “Twenty Percent Rule” (CJ § 3-2A-04(b)(4)).
The Twenty Percent Rule requires the court to perform a mathematical equation: it must identify those activities that ‘directly involve testimony in personal injury claims’ (the numerator) and then divide it by those activities that comprise the body of ‘professional activities’ in general (the denominator).
The activities that “directly involve testimony” in personal injury claims that make up the numerator are: (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony.
Professional activities that comprise the denominator are activities that contribute to or advance the profession to which the individual belongs or involve the individual’s active participation in that profession. In defining the expert’s total universe of professional activities, a distinction must be drawn between the hours spent furthering one’s profession versus the hours spent on personal or leisurely pursuits (experts need not necessarily still be seeing patients, but they must be engaged professionally, and actively so).
The Appellate Court stated that the plaintiff bears the burden of proving her claims in a Maryland medical malpractice case, and generally, the proponent of expert testimony (on whatever side of a case) bears the burden of proving that her expert is qualified to testify and that the testimony will assist the trier of fact.
The Appellate Court held that because a certifying affidavit from a qualifying expert is a condition precedent to maintaining or defending against a claim that a health care provider violated a standard of care, the burden of proving the expert’s qualifications is an inextricable part of the party’s burden of proof (for a Maryland medical malpractice plaintiff, the plaintiff bears the burden of proving that her medical expert was a “qualified expert,” and therefore that the expert satisfied the Twenty Percent Rule).
Source Streaker v. Boushehri, Case No. 1391, September Term, 2015.
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