As a brief background, Maryland statutory law passed by the General Assembly in the late 1970s carved out a special procedure for persons seeking to sue medical providers for malpractice. The special procedure, known as health claims arbitration, essentially requires that a plaintiff, before he or she files suit in a circuit court for malpractice, must first file their claim with a state agency known today as the Health Claims Dispute Resolution Office. Along with the claim, the law requires that a certificate of qualified expert accompany the claim wherein an expert, board certified in the same field of medicine as the defendant medical provider, attest that the medical records and factual information reviewed reveals that malpractice was committed and caused the plaintiff injury. Once the certification prerequisite is met, the case can be removed from arbitration and can proceed in the circuit court like any other personal injury claim. Obviously, the certification requirement was intended to week out frivolous claims. There are, however, unintended consequences created by the certification requirement.
I was counsel on the case of
D'Angelo v. St. Agnes Healthcare, a Court of Special Appeals decision that sent shock waves through the plaintiffs' legal community when the court deemed the two certifications filed by the plaintiffs inadequate and dismissed the case. For many years prior to the decision, plaintiffs' counsel had believed they were complying with the certification requirement by filing a simple statement from an expert attesting that the claim had merit and that the expert was not a "professional witness." In the wake of
D'Angelo, many legitimate lawsuits were dismissed, and more were challenged and disposed of by dismissal when the Court of Appeals of Maryland issued its decision in
Walzer v. Osbourne,
where the court for the first time explained that the certificate must contain certain detail as to the "hows and whys" of malpractice, even though the state statute requiring certification was silent on the specificity of such certificating language.
Now, the problem has been compounded by revised certification requirements as a result of certain 2005 amendments to the certification statute that were passed in haste as emergency legislation by the Maryland General Assembly in response to cries from the malpractice insurance industry who, without any substantive scientifically valid evidence, claims that increasing jury awards were going to drive them out of the state and that physicians would be leaving as well.
When combining the new legislation with the recent flurry of case law on the subject, Maryland medical malpractice practitioners are rightfully concerned that the right of malpractice victims is being circumscribed by laws which serve to remove legitimate claims from the court system and which place an unfair roadblock in the pursuant of claims which, under the medical malpractice legislation, are theoretically not to be abridged by the malpractice legislation and should retain in all respects their common law right of action to sue for malpractice. The abridgment of a malpractice victim's common law right of action in negligence is at the heart of the argument that Maryland's certification requirement, and the court's newly-imposed common law enhancements to that law, have resulted in the unconstitutional deprivation of a person's right to pursue their common law remedies and their right to trial by jury. One state supreme court in
Oklahoma reached this very conclusion recently, and deemed unconstitutional its own state's certification statute for malpractice claims which is nearly identical to Maryland's.
In the upcoming months, Maryland's appellate courts are expected to issue additional decisions on the propriety of malpractice certification and challenges asserted by defendant health care providers who have successfully defeated legitimate claims by focusing on technical (and correctable) infirmities in the certificates rather than by prevailing on the merits of the case by asserting valid substantive defenses. The certification requirement and the illusiveness of the law as it exists is creating real problems that were not intended by the General Assembly when the law was first passed.
I am in the process of writing a comprehensive law review article on the topic and expect it will be published in the next eight months. As the article is developed, I will post portions of it here for all to read and comment upon. Please stay tuned for developments in this very important area of malpractice litigation.
There are no comments for this entry.
[Add Comment]