The Court of Special Appeals just recently issued a decision in an important case involving an allegedly defective certificate of qualified expert. David A. Barnes et al. v. Greater Baltimore Medical Center, Inc. et al. is another twist in the interpretation of the certificate requirement of the Healthcare Malpractice Claims Act.
One of the threshold requirements for filing a medical malpractice lawsuit is that a “Certificate of Qualified Expert” must be filed with Maryland Health Care Alternative Dispute Resolution Office (HCADRO), an administrative agency that promotes arbitration of medical claims rather than litigation of claims. The certificate must state that the injury was caused by a departure from the standard of care and that this departure caused the alleged injury. The certificate must be filed within 90 days after the filing of the complaint. The lawsuit will be dismissed if the certificate does not satisfy the requirements of the Act.
The certificate of qualified expert, which is typically a one or two page document, must be accompanied by a comprehensive report which explains the “how’s and whys” of the expert’s opinion on breach of care and injury. The certificate and report must be filed within 180 days after the claim is filed in the HCDRO and is a necessary prerequisite or a “condition precedent” to a plaintiff’s right to proceed further in that tribunal or in a circuit court with jurisdiction over the case.
The state’s top court has ruled the certificate requirement to be a condition precedent to filing a medical malpractice claim in circuit court. The purpose of the certificate requirement is to weed out non-meritorious medical malpractice claims, according to D’Angelo v. St. Agnes Healthcare, Inc., a 2004 case decided by the Court of Special Appeals.
In Barnes, the defect was raised for the first time prior to a second trial where the first legal proceeding had ended in mistrial because of the 2010 snowstorm. The certificate and report were signed by Dr. Kenneth Larsen. Larsen was deposed and fully testified at the first trial. He testified that the nurse who either ignored a note from the plaintiff’s doctor that David A. Barnes was experiencing a mini-stroke and needed a full stroke work up and who downgraded Barnes’ condition so that he was sent to urgent care rather than the emergency room did not comply with the standard of care.
The day before the second trial, Greater Baltimore Medical Center, filed a motion to dismiss based on the Barneses’ failure to attach a legally sufficient report to their certificate of qualified expert. GBMC felt that the expert report that accompanied the certificate was not sufficient because it merely stated that GBMC violated the standard of care and that the violations were the proximate cause of Mr. Barnes’ injuries, but did not go into any further explanation. GBMC argued that the expert report did not explain the expert’s opinions as required by the Act. The Barneses argued that the motion was filed too late. In turn, GMBC responded that Maryland law permits them to challenge the certificate at any time. The Circuit Court for Baltimore County denied the motion. The Court of Special Appeals affirmed the trial court’s ruling, holding that the defect was cured by the trial testimony of the expert who signed the certificate.
By holding that subsequent events may cure a defective certificate, the appellate court has whittled away at the harshness of the D’Angelo decision. D’Angelo was a devastating case for plaintiffs and their attorneys and was a tragic display of judicial dishonesty since the expert witnesses had cured, through their deposition testimony, any defects in their certificates; but, the court would not consider subsequent events as a cure.D’Angelo was, however, undermined to some extent by the Court of Special Appeals’ ruling in Barber v. Catholic Health, which presented a nearly identical situation as D’Angelo in that several doctors were sued, but their roles in the care could not be completely determined until a Health Claims Action was filed and discovery was undertaken. In both D’Angelo and Barber, the entries handwritten by the doctor and the nurses were illegible so the experts opined that everyone involved with an emergency room patient’s treatment who fails to take action on an abnormal MRI were liable. The court did not like what it perceived as a “shoot now, question later” shotgun approach even though plaintiffs are sometimes left with no choice to cast a wide net over the medical providers and their care due to illegible or lost records.
“Finding that Dr. Laren’s testimony at the first trial, and before the beginning of the second trial, cured the alleged deficiencies in his expert report serves the purpose of the certificate requirement,” the court said in Barnes.
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