The Maryland Court of Special Appeals provided yet another ruling about the nuances of malpractice law in Maryland, specifically the certificate of merit and other technical requirements necessary for initiating a medical malpractice lawsuit.
In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs’ medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.
Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I do think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits. The problem is that the spirit and purpose of the statute often gets destroyed by defendant’s malpractice lawyers using gamesmanship as a means to end run fairness in an effort to get a meritorious lawsuit past the legal technicalities of bringing a claim.
This case was a wrongful death claim filed in Baltimore City alleged that a doctor negligently failed to recognize and treat an epidural hematoma, the anesthesiologist that signed the certificate of merit was not a qualified expert to opine upon the standard of care applicable to the defendant who was a vascular surgeon. The question before the court was how to deal with this problem: summary judgment or dismissal without prejudice.
Baltimore City Judge Kaye A. Allison ruled that summary judgment was the appropriate remedy. The Court of Special Appeals disagreed, finding that the unambiguous language mandates a dismissal without prejudice.
The take home message for Maryland malpractice lawyers is clear: the saving grace from procedural errors in preparing a malpractice lawsuit is filing your lawsuit well in advance of the statute of limitations whenever possible.
- Powell v. Breslin (the court’s opinion)