The Maryland Legislature convened for its 2018 Legislative Session on January 10, 2018. One of the bills pre-filed in the Maryland Senate would repeal the requirement in Maryland medical malpractice cases that 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% of the expert’s professional activities to activities that directly involve testimony in personal injury claims.
Maryland law provides that in Maryland medical malpractice cases, a claim for medical injury against a health care provider is required to be filed with the Director of the Health Care Alternative Dispute Resolution Office (HCADRO), except for a claim seeking damages within the limit of the District Court’s concurrent civil jurisdiction (i.e., $30,000 or less), although the parties may elect mutually or unilaterally to waive arbitration of the medical malpractice claim.
Unless the sole issue in a health care malpractice claim (i.e., medical malpractice claim) is lack of informed consent, a claim before HCADRO or an action filed in a court must be dismissed without prejudice if the claimant or plaintiff fails to file with the Director, within 90 days from the date of the complaint, a “certificate of a qualified expert” attesting (1) to a departure from standards of care and (2) that the departure is the proximate cause of the alleged injury. An extension of the period for filing the so-called certificate of merit may be granted under certain circumstances.
Under current Maryland law, 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% 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.
Senate Bill 30 would repeal the 20% rule.
If you or a loved one may have been injured as a result of medical malpractice 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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