Maryland's Health Care Malpractice Claims Act ("the Act"), Md. Code Ann. Cts. & Jud. Proc. Art. § 3-2A-01, et seq. (2010), provides the statutory scheme requiring that all cases of medical malpractice first be filed with a state agency and further requires that all such claims be supported by a certificate of qualified expert. A certifying expert must attest in a certificate and accompanying reportthat the standards of care for the treatment at issue were breached and that the breach proximately caused the victim injury. The expert's report must explain the "hows and whys" of his or her opinions.
The provisions of the Act have been amended from time to time, most recently through emergency legislation at the end of 2004 (at the urging of the malpractice insurance industry) during which, among other things, the certification requirement was tightened. Specifically, the statute was amended to require that a medical provider may certify a case only if he or she "has clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action." The amended statute further states that if the defendant is board certified in a specialty, the certifying expert shall be board certified in the same or a related specialty as the defendant. Prior to the amendment, there was no such restriction on the qualifications of a certifying expert.
The issue of what a "related specialty" is under the Act has not been addressed by Maryland's appellate courts. Judge Alexander Williams of the United States District Court of Maryland (Southern Division) has afforded practitioners some guidance in his November 15th Memorandum Opinion in Jones, et vir v. Bagalkotakar, et al. The opinion offers a straightforward and well reasoned analysis derived from a plain reading of the statute, the legislative intent of requiring only a preliminary opinion from the certifying expert, and after consideration of opinions from surrounding state and federal jurisdictions that have addressed the issue.
Although the specific allegations of malpractice are not discussed in the opinion, the case involved alleged mistreatment of a child by an emergency room physician at Holy Cross Hospital. The plaintiffs used a pediatrician to certify the case against the ER physician and the physician's atttorneys filed a motion to dismiss, alleging that the plaintiffs' certifying pediatrician was not qualified under the Act to certify the case as to the ER physician. Judge Williams, however, disagreed.
In holding that the pediatrician was board certified in a "related specialty" and thus competent to certify the case, he concluded that the pediatrician was knowledgeable in the proper evaluation of children, which was the issue giving rise to the claim. In reaching his opinion, Judge Williams formulated the following test which, hopefully, will be embraced by other trial and appellate courts in the future:
"(1) What is the procedure or procedures at the source of the claim?; (2) Is the procedure common to the two specialties?; (3) What experience does the purported expert doctor have with this specific procedure?; and, (4) is the standard of care applicable to the procedure common to both?
If the procedure is one which both healthcare providers have experience with and the standard of care is purported to be similar, then the expert's qualifications satisfy the requirements of the Act. If a procedure is common to two specialties, an inference of relation is created between the two specialties. However, if the procedure is one which the purported expert does not have experience or performs with a meaningfully different standard of care, then the expert does not qualify under the Act."
Expert certification infirmities have become a cottage industry for the defense bar, who challenges certifications on a regular basis, but who rarely practice what they preach and oftentimes file inadequate certifications and accompanying reports which typically say nothing more than "it ain't so." The experience of this writer is that plaintiffs' certificates are far more frequently deemed infirm then are defendants' certificates. Some courts take the position that since the plaintiff bears the burden of proof, it is more important that his certificate be complete then it is for the defendants'. Although courts sometimes remark that the certification process is "preliminary" and does not require the detail that an expert's trial testimony must contain, the scrutiny of plaintiffs' certificates and the costs involved in making sure the experts' opinions are fully detailed, represent more than simply a preliminary assessment and cost a plaintiff, out of the box, between $2,000 and $7,000, depending on how many experts are required to certify a given case. That is another issue of contention that will be addressed in a future blog. For now, however, we are pleased with the District Court's opinion in Jones.
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