Effort to Kick Malpractice Case in Federal Court Fails

This case is barely worth reporting on, but I thought I would pass it along.

In Smith v. Palin, a Maryland federal court was asked whether the Maryland Health Care Alternative Dispute Resolution Office abused its discretion in extending the time for filing the expert certificate required by Maryland law several times.  Specifically,  the defendant’s argued that the plaintiff’s excuse that they had requested, but not yet received all studies from treating physicians in Pennsylvania – including photographs of condition at issue – did not constitute good cause.

Should it take that long to get the records in a case?  No, it really shouldn’t.  Should the HCADRO hold plaintiffs’ feet to the fire and kick cases out because plaintiff’s lawyer has not done what they are supposed to do?  I think not.  Moreover, it is clearly not an abuse of discretion for the HCADRO director to determine that the plaintiffs do have good cause.  Not for nothing, the plaintiff was a 16-year-old girl when the defendant allegedly recommended that she undergo a bilateral breast augmentation as a treatment for a tubular breast deformity.  I don’t know about you, but I would like to see the court extend the benefit of the doubt.  Which is exactly what Judge James K. Bredar does.

Here’s my spin on what happened here.  This case is in Cumberland, Maryland.  The last malpractice verdict in Cumberland, Maryland was during the Lincoln administration.  (Maybe I’m making that up.  Still. It is a conservative jurisdiction.)  So plaintiffs’ malpractice lawyers smartly filed in federal court because the plaintiff resides out-of-state.  The defendant is annoyed to be in federal court but thinks that maybe the federal court judge will be quicker to hold plaintiffs’ feet to the fire.  They never would have filed this motion in state court.  But they learned – probably with little surprise – that federal court judges are not quite that ridiculous.

My other take on this is that HCADRO director Harry Chase has earned a lot of respect from both state and federal court judges.  It is unlikely they will rule he abused his discretion absent very compelling circumstances.   The law is clear that courts in Maryland “must afford [to the HCADRO Director] at least the same deference that are afforded to other administrative agencies in making discretionary decisions.”  That will go a long way.