The Court of Appeals of Maryland on October 28, 2010 issued its opinion in Kearney v. Berger in which it affirmed the dismissal of a medical malpractice claim because the plaintiff/claimant failed to file a sufficient certificate of qualified expert as required by the Maryland Health Malpractice Claims Act. The court held the certificate deficient because it lacked an accompanying report from the attesting expert and rejected arguments by the plaintiff/petitioner that the defendant doctor had waived the right to challenge the certificate since he unilaterally waived arbitration which, as a prerequisite, requires that the claimant file a certificate required by the Act. The court further clarified that an expert’s report is insufficient if it does not include in specific detail in “how” or “why” the defendant allegedly departed from the standard of care. The court however, rejected, the defendant’s assertion that the certificate was likewise deficient because it failed to state that the expert satisfied the “twenty percent rule” or that his opinions were expressed to a reasonable degree of medical probability.
Finally, the court rejected the plaintiff/petitioner’s argument that good cause existed to extend the deadline for filing a certificate, which must be filed under Maryland law within 180 days of the filing of the claim, as there was no sufficient showing at the trial level that good cause existed. The court rejected the argument that the law regarding the filing of accompanying reports was uncertain at the time the claim was filed, and that a recent Court of Appeals decision clarifying the requirement came as a surprise to medical malpractice attorneys who, for years, were not filing reports with their certificates. The court statute clearly required an accompanying report in addition to the certificate and that its decision Walzer v. Osbourne simply clarified and did not create any additional certification requirements relative to requiring a report.
This case is another in a string of cases issued by Judge Clayton Greene, who issued Walzer v. Osbourne and Carroll v. Konits. Its recent decision in Kearney is a continuation of a very restrictive interpretation of the certification requirement and reflects the significant demands placed upon plaintiffs and their attorneys in investigating claims and obtaining expert support before filing claims or lawsuits against medical providers.
The most compelling yet rejected argument in the case was that the defendants waived the right to complain of a deficient certification since they unilaterally waived arbitration. As a prerequisite to waiver, the statute requires that the claimant/plaintiff file a certificate in compliance with Act. Should the certificate not have been in compliance with the Act, which the Court of Appeals held to be so, it appears that the defendant’s unilateral waiver itself was defective by virtue of the plaintiff’s defective certificate and that the case should have been remanded to the Health Claims Dispute Resolution Office for further proceedings rather than being dismissed. It is not clear whether the plaintiffs sought that remedy, but unfortunately, their claim was dismissed due to infirmities that otherwise could have been avoided.
Belsky, Weinberg & Horowitz, LLC a personal injury law firm with offices throughout the State of Maryland. Should you have questions regarding a possible claim, please contact our office.