Once again the Maryland courts have thrown a medical malpractice case out of court because of perceived shortcomings in the certificate that is required before the case can go to court.
There are several hoops that plaintiffs must go through in order to file a medical malpractice claim in Maryland. Plaintiffs are required to first file a claim with Health Care Alternative Dispute Resolution Office (HCADRO). In order to weed out bad claims, plaintiffs are also required to file a certificate of a qualified expert attesting to a departure from the standard of care and attesting that the departure from that is the reason for the alleged injury. A certificate of merit must also be filed.
Critics say that the certificate requirement only makes it more difficult to bring medical malpractice cases to court and increases the cost of litigation. And, not all states require certificates. The Oklahoma courts ruled in June that the certificate requirement was unconstitutional, impeded access to the courts and added to the cost of litigation.
In Stanley M. Grabill, Jr. v. Corizon, Inc., the United States District Court for the District of Maryland ruled that the certificate filed in a case alleging medical malpractice was insufficient because it failed to identify the applicable standard of care and how the standard was breached.
Grabill, a resident at the Maryland Correctional Institute at Hagerstown, was found to have a tumor in his colon in 2007. As a result, he underwent surgery requiring the resectioning of his bowel and a colostomy. Grabill said in court papers that he told the doctors and health care providers employed by the defendant in 2005 that he was experiencing a change in bowel habits and bleeding from the rectum. Grabill said the doctors told him that he was having prostrate problems and merely needed bed rest. Grabill said the medical care providers’ failure to diagnose his cancer in 2004 or 2005 stemmed from their negligence, which allowed the tumor to develop and caused the requirement for surgery and the colostomy.
As required by Maryland law, Grabill first filed a statement of claim with HCADRO in February 2010. Grabill filed a certificate of merit and an expert report by Dr. Lambert King. Grabill then filed a notice of election to waive arbitration with HCADRO. Having taken those steps, Grabill filed his complaint in the federal trial court.
But, Corizon, a Missouri company under contract to provide health care services to Maryland inmates and the defendant in this case, asked the court to dismiss the lawsuit on the ground that Grabill’s certificate of merit and report were insufficient. Among other arguments, Corizon said the certificate failed to identify the applicable standard of care and how it was breached. The federal trial court agreed.
Grabill’s expert report was insufficient, the trial court explained, because it did not explain the relevant standard of care nor did it explain how Corizon’s employees departed from it. The closest the report came to stating a standard of care was to suggest that, in response to Grabill’s complaints in 2005, Corizon’s employees should have “significantly investigated” the problem and performed “a more thorough investigation.” “These statements do not succeed in describing a standard of care, because they do not identify the minimum steps that should have been taken in response to specific complaints,” the court said.
If an expert report alleged that the doctors performed no investigation in response to a patient’s complaint, the Court might interpret such an assertion as sufficiently alleging that the doctors had a duty to investigate but failed to do so. However, the allegation that the doctors did not significantly investigate the complaint was too vague to establish what steps the doctors took, what steps they should have taken and why the steps they took were insufficient.
Grabill argued that the report was sufficient because it should be interpreted in conjunction with the statement of claim that Grabill filed with HCADRO. “In essence, Grabill argues that the Court should import the factual allegations in Grabill’s statement of claim into the expert report,” the court said, noting that Grabill had not cited an authority for the proposition that the expert report could implicitly incorporate the factual allegations made in the statement of claim.
Further, the court said, if it adopted Grabill’s argument, then the expert report would be completely superfluous. Under Grabill’s reasoning, the expert report could simply restate these same assertions and rely on the statement of claim to provide the factual basis for them. But “common sense dictates that the Legislature would not require two documents that assert the same information,” the court said.
As a result, the court dismissed Grabill’s lawsuit.
The court also declined to grant Grabill permission to file a supplemental certificate of merit and report to address the deficiencies. The court has authority to grant an extension of the deadline to file the certificate and shall do so for good cause shown. Good cause has been shown to be 1) excusable neglect or mistake; 2) serious physical or mental injury and/or location out of state; 3) the inability to retain counsel in cases involving complex litigation; 4) ignorance of a statutory requirement; 5) where representations made by government representatives are misleading. Grabill had not shown that his case fell within any of those categories, the court said.
Baltimore, Maryland-based Belsky & Horowitz has been fighting for clients who have been the victims of medical malpractice, negligence and personal injury for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.