Maryland Senate Bill 323, introduced on January 30, 2019, if enacted into law, would provide Maryland medical providers who are sued for medical negligence with an advantage over their injured victims.
Senate Bill 323, with changes to existing law in capital letters, states:
Article – Courts and Judicial Proceedings 3–2A–04.
(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; and
2. The claimant or plaintiff shall serve a copy of the certificate on all other parties to the claim or action or their attorneys of record in accordance with the Maryland Rules; and
(ii) In lieu of dismissing the claim or action, the panel chairman or the court shall grant an extension of no more than 90 days for filing the certificate required 6 by this paragraph, if:
1. The limitations period applicable to the claim or action has expired; and
2. The failure to file the certificate was neither willful nor the result of gross negligence.
(2) (i) A claim or action filed after July 1, 1986, may be adjudicated in favor of the claimant or plaintiff on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within 120 days from the date the claimant or plaintiff served the certificate of a qualified expert set forth in paragraph (1) of this subsection on the defendant.
(ii) If the defendant does not dispute liability, a certificate of a qualified expert is not required under this subsection.
(iii) The defendant shall serve a copy of the certificate on all other parties to the claim or action or their attorneys of record in accordance with the Maryland Rules.
(3) (i) The attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached.
(ii) Discovery is available as to the basis of the certificate, INCLUDING A DEPOSITION OF THE ATTESTING EXPERT.
(III) THE DEFENDANT MAY SEEK DISCOVERY AS TO THE BASIS OF THE CERTIFICATE FILED BY THE CLAIMANT OR PLAINTIFF WITHOUT PREJUDICE TO LATER DISCOVERY IF THE ATTESTING EXPERT IS DESIGNATED AS A TRIAL EXPERT.
(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.
(5) An extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for good cause shown.
(6) In the case of a claim or action against a physician, the Director shall forward copies of the certificates filed under paragraphs (1) and (2) of this subsection to the State Board of Physicians.
(7) For purposes of the certification requirements of this subsection for any claim or action filed on or after July 1, 1989:
(i) A party may not serve as a party’s expert; and
(ii) The certificate may not be signed by:
1. A party;
2. An employee or partner of a party; or
3. An employee or stockholder of any professional corporation of which the party is a stockholder.
(b) (1) The provisions of §§ 3–212 through 3–217 of this title are applicable to proceedings under this subtitle.
(2) (I) Except for the provisions of the Maryland Rules relating to time for the completion of discovery, the provisions of the Maryland Rules relating to discovery are applicable to proceedings under this subtitle.
(II) A DEPOSITION OF A DEFENDANT HEALTH CARE PROVIDER MAY NOT BE REQUIRED UNTIL THE CLAIMANT HAS FILED THE CERTIFICATE OF A QUALIFIED EXPERT REQUIRED UNDER § 3–2A–04(B) OF THIS SUBTITLE AND SERVED THE CERTIFICATE ON ALL OTHER PARTIES TO THE CLAIM OR ACTION OR ON THE ATTORNEYS OF RECORD IN ACCORDANCE WITH THE MARYLAND RULES.
(III) All discovery in any action under this subtitle shall be completed within 270 days from the date on which all defendants have been served, unless extended by the panel chairman for good cause shown.
(3) Properly authenticated hospital records and the records of treating health care providers are admissible without the necessity of calling the physician, subject to reasonable notice and the right of the opposing party to depose.
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any claim filed before the effective date of this Act.
SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2019.
Why would the changes in the existing Maryland medical malpractice law be an advantage to Maryland medical providers sued for malpractice, and a disadvantage to Maryland victims of medical malpractice?
Often medical malpractice victims are aware of the unexpected harm they suffered as a result of medical treatment, but they do not know who caused their injuries and how, or whether medical negligence caused or contributed to their injuries. It does not help that negligent medical providers are the ones who write the medical records, without input from their patients. It is not often that negligent medical providers document in the medical records their medical mistakes.
Would you expect that a police officer who pulled you over for speeding would hand you the ticket citation book and tell you to write your own citation? Would you write that you were doing 70 mph in a 30 mph speed zone?
Many times, if not most times, the only method of finding out additional or contradictory facts not stated in the medical records is to depose those suspected to be responsible for the patient’s harm, and those who may have knowledge of such medical negligence. Often the only method of discovering additional medical providers who may have caused or contributed to the plaintiff’s harm is to depose the defendant medical providers originally named in the Maryland medical malpractice claim (in Retina Grp. of Wash., PIn Retina Grp. of Wash., P.C. v. Crosetto, 237 Md. App. 150, 170-71 n.12 (2018), the Maryland Appellate Court 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 … 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.”).
Hence, the proposed change to Maryland’s medical malpractice law would unfairly and irrationally hamper Maryland medical malpractice plaintiffs’ right to discover who may be responsible for the harm they suffered as a result of medical negligence and to hold them accountable: the plaintiffs’ experts would be required to identify all of the potential malpractice defendants in their certificate of qualified expert prior to the taking of the named defendants’ depositions that may lead to the discovery of other or additional medical malpractice defendants who are liable for the consequences of their medical negligence that harmed the plaintiffs.
If you or a loved one may have been injured as a result of medical negligence in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Maryland medical malpractice case, if appropriate.
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