Under Maryland law, one of the requirements for taking a case alleging professional malpractice to court is that a certificate of a qualified expert must be filed. But, Maryland’s top court recently narrowed the circumstances in which a certificate must be filed in a case that claimed negligence by an engineer who was not named as being licensed.
“The certificate requirement applies only to a cause of action based on a licensed engineer’s negligent act or omission in rendering engineering services within the scope of the engineer’s license. It may be that the alleged deficiencies in [the defendant’s] services are ultimately to be laid at the doorstep at one of its licensed engineers and, if true, would be a deviation from the standard of care required of such a professional. But in the context of a motion to dismiss, when the allegations of the complaint are to be accepted as true and viewed in the light most favorable to the plaintiff and those allegations do not fault a licensed engineer, it is premature to conclude that an expert certificate was required,” the Court of Appeals said. Both the trial court and the intermediate appeals court had dismissed the case on the basis that the expert certificate had not been filed.
In Heavenly Days Crematorium, LLC v. Harris, Smariga and Associates, Inc., Heavenly Days Crematorium, LLC filed a complaint against Harris, Smariga and Associates, Inc. (HSA) in the Circuit Court for Frederick County in October 2009 seeking monetary damages for breach of contract and professional negligence.
Heavenly Days owns and operates the Greenbriar Kennels Memorial Crematorium, an animal cemetery and crematorium in Urbana, Maryland.
Heavenly Days said HSA agreed to provide planning and civil engineering services in connection with its application for approval of a pet crematorium. In August of 2004, Heavenly Days applied to move its crematorium — at that time operating in Rockville, Maryland — to its current location in Urbana. The application process required Heavenly Days to obtain plan approval, zoning variances and various building permits from the State of Maryland and Frederick County.
Heavenly Days hired HSA, a firm that offers site planning and civil engineering services, to assist Heavenly Days with the permit application and approval process. HSA employee Chris Mayo worked with Heavenly Days. The complaint did not specify Mayo’s position with HSA.
In court papers, Heavenly Days alleged that HSA made a number of errors, including giving the wrong dimensions for the size of the building, failing to obtain approval to move the site, failing to let Heavenly Days know that approval was not achieved and more.
The complaint did not attribute HSA’s alleged failings to a licensed engineer and the complaint was not accompanied by a certificate of a qualified expert.
HSA filed a motion to dismiss the amended complaint, based on the fact that Heavenly Days had not filed a certificate within 90 days of its original complaint as required under Maryland law.
When professional malpractice is alleged, the view in Maryland is that fact finders who are not members of the particular profession may have difficulty understanding the standard of care against which the defendant’s actions are to be measured without the assistance of expert opinion. As a result, under Maryland law, plaintiffs must find a favorable expert opinion before the case is filed in court as a requirement to moving forward with a professional malpractice action.
A certificate must contain a statement from a qualified expert attesting that the licensed professional failed to meet an applicable standard of professional care.
Not all jurisdictions require a certificate in professional negligence cases. Earlier this year, the Oklahoma courts rejected the certificate requirement in a medical malpractice case, pointing out that it had already dismissed the requirement in professional malpractice cases. The Sooner court said the certificate requirement was unconstitutional and increased the costs of a lawsuit.
The Frederick County Circuit Court agreed with HSA, entering an order granting the motion to dismiss for failure to file a certificate of qualified expert within the requisite time period. A certificate of a qualified expert has to be filed within 90 days of the filing of the original complaint. The trial court also found that there was not good cause to extend the time for filing the certificate. The Court of Special Appeals affirmed the decision. But, the state’s top court disagreed and reversed.
The primary issue in the appeal was whether, in the current posture of this case – the motion to dismiss stage — Heavenly Days was obligated to file a “certificate of a qualified expert” as a prerequisite to bringing its action against HAS, the Court of Appeals observed.
In deciding whether to grant a motion to dismiss a complaint, a court is to assume the truth of the factual allegations of the complaint and the reasonable inferences that may be drawn from those allegations in the light most favorable to the plaintiff. In reviewing a circuit court’s decision to dismiss a complaint, an appellate court applies the same standard and assesses whether that decision was legally correct.
The certificate requirement applies only if the complaint is based on negligence of a licensed professional, the court said. The statutory language plainly establishes the certificate requirement as a hurdle to litigating allegations of malpractice by a licensed professional. In particular, the claim must be against “the licensed professional” or that individual’s employer and must be based upon “the licensed professional’s negligent act or omission.” There was simply no room in the statutory definition to remove the “licensed professional” from the picture and still have a claim subject to the certificate requirement, the court said. Rather, the unambiguous language of the definition requires that a court must find that a plaintiff’s allegations of negligence against an employer such as HSA are attributable to a licensed professional before the lawsuit may be dismissed for failure to file a certificate of qualified expert under Maryland law.
“It is thus indisputable that the certificate requirement is triggered only when a complaint alleges professional malpractice by one or more individual licensees. This is in contrast to the certificate requirement pertaining to malpractice actions against health care providers in which ‘health care provider’ is defined to include not only licensed individuals but also individuals authorized to provide one or more health care services,” the court said.
Baltimore, Maryland-based Belsky, Weinberg & 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.