The Maryland General Assembly, which is currently in session, is considering repealing the so-called “20 Percent Rule” in Maryland medical malpractice cases, which requires that medical experts not devote more than 20% of their professional activities to activities directly involving testimony in personal injury claims.
MD Code, Courts and Judicial Proceedings, § 3-2A-04
MD Code, Courts and Judicial Proceedings, § 3-2A-04 provides, in relevant part: “(b) Unless the sole issue in the claim is lack of informed consent:
(1)(i) 1. Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint; …
(4) A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.”
When calculating whether an expert annually devotes more than 20% of his or her professional activities to activities directly involving testimony in personal injury cases, the time properly included is time the expert spends (1) in, or traveling to or from, court or deposition for the purpose of testifying; (2) assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery; (3) 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 the expert will likely be called on to sign an affidavit or otherwise testify; and (4) doing any similar activity that has a clear and direct relationship to testimony to be given by the expert or the expert’s preparation to give testimony.
For activities to qualify as professional activities, the activities must (1) contribute to or advance the profession to which the individual belongs or (2) involve the individual’s active participation in that profession. Activities that do not constitute professional activities for purposes of the 20% Rule include reading journals, observing procedures conducted by other physicians, and discussing with former colleagues matters for one’s own personal knowledge.
Maryland Senate Bill 30 would repeal paragraph (b)(4) of § 3-2A-04.
Senate Bill 30 passed the Maryland Senate on March 9, 2018, on a vote of 29 “Yea” and 16 “Nay”. The Maryland House of Delegates Judiciary Committee is scheduled to consider the matter during a hearing on March 28, 2018.
If you or a loved one suffered serious harm as a result of medical negligence in Maryland or in another U.S. state, you should promptly find a Maryland medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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