Earlier this month, the Court of Appeals of Maryland granted certiorari in a case which raises important issues relative the sufficiency of a plaintiff’s expert certification. One issue of particular interest to the plaintiffs’ bar, and which has been raised frequently at the trial level, is whether a defendant who unilaterally waives out of health claims arbitration gives up the right to complain about the sufficiency of the plaintiff’s expert certification. Arguably, since a waiver cannot occur until plaintiff files a “valid” expert certification, the defendant tacitly accepts the validity of the certification by waiving out of health claims arbitration.
Kearney, Gail A., Individually, etc., et al. v. Robert S. Berger – Case No. 125, September Term 2009.
ISSUES – STATUTORY – MEDICAL MALPRACTICE – (1) DID THE TRIAL COURT ABUSE ITS DISCRETION IN RULING THAT APPELLANTS DID NOT HAVE GOOD CAUSE FOR AN EXTENSION OF TIME UNDER MD. CODE, ANN., CPJ SECTIONS 3-2A-04(b)(5) AND 3-2A-05(j)? (2) DID APPELLEE WAIVE HIS STATUTORY RIGHT TO OBJECT TO THE SUFFICIENCY OF THE ARBITRATION PROCEEDINGS WHEN HE UNILATERALLY WAIVED ARBITRATION AND FAILED TO PLEAD ANY OBJECTION IN HIS ANSWER? (3) DID THE TRIAL COURT ERR IN DETERMINING THAT THE APPELLANTS’ CERTIFICATE OF QUALIFIED EXPERT WAS INSUFFICIENT?