The Court of Special Appeals of Maryland (“Maryland Appellate Court”) issued a reported opinion on June 28, 2018 in which it held that the failure of the Maryland medical malpractice plaintiff’s certificate of qualified expert to specifically identify the health care providers who allegedly breached the standard of care that allegedly injured the plaintiff required the trial court to find that the certificate of qualified expert was defective.
Maryland’s Healthcare Malpractice Claims Act
Maryland’s Healthcare Malpractice Claims Act (the “Act”), CJP §§ 3-2A-01 et seq., 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 Maryland’s Health Claims Alternative Dispute Resolution Office (“HCADRO”). Within 90 days after filing a claim with the HCADRO, the plaintiff must file a certificate of qualified expert attesting to a defendant’s departure from the relevant standards of care which proximately cause the plaintiff’s injury. CJP § 3-2A-04(b)(1)(i)1. After filing the certificate, the plaintiff can waive arbitration and file suit in the circuit court. CJP § 3-2A-06B(b)(1).
The purpose of the health claims arbitration process and the certificate requirement is to weed out non-meritorious claims and reduce the costs of litigation. Accordingly, the plaintiff’s certificate of qualified expert must include information necessary for evaluating whether the defendant breached the standard of care and must mention explicitly the name of the licensed professional who allegedly breached the standard of care (the certificate must identify with specificity the licensed professional(s) who breached the standard of care).
Maryland case law provides that when a certificate of qualified expert does not identify, with some specificity, the person whose actions should be evaluated, it would be impossible for the opposing party, the HCADRO, and the courts to evaluate whether a physician, or a particular physician out of several, breached the standard of care; the failure to file a proper certificate is tantamount to not having filed a certificate at all.
If a plaintiff fails to file a certificate of qualified expert, as required, the Act mandates dismissal, without prejudice, unless the plaintiff obtains one of three statutory extensions of the time to file an expert’s certificate (CJP § 3-2A-04(b)(5) states that “[a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for good cause shown”).
In the case the Maryland Appellate court was deciding, the Maryland medical malpractice plaintiffs’ certificate of qualified expert attested that the defendant hospital “through their agents, servants, and/or employees, breached the applicable standard of care.” The plaintiffs’ alleged in their Maryland medical malpractice complaint that the “actions and inactions of the [appellees], through their agents, servants, and employees, breached the applicable standards of nursing care,” and, as a result, appellees, “acting through their agents, servants and employees,” harmed the plaintiff.
The Maryland Appellate Court held: “a complete and valid certificate and report must be filed to maintain a medical malpractice action in accordance with ‘the meaning and intention of the Legislature’ … to satisfy this step, a plaintiff must ‘identify, with some specificity, the person whose actions should be evaluated’ … [t]he circuit court properly determined that [the plaintiffs] failed to do so with their initial certificate.”
Source Dunham v. University of Maryland Medical Center, Nos. 260 & 1443, September Term, 2017.
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