In Maryland, No Automatic Sanction For Lack of Expert Report When Certificate of Qualified Expert Is Filed

In Osborne v. Walzer, No. 2457, Sept. Term, 2004 (Court of Special Appeals of Maryland), the Court held that it is not necessary to attach an attesting expert's report to the Certificate of Qualified Expert report that is necessary, under Md. Code sec. 3-2A-04(b), for a medical malpractice action before the Health Claims Arbitration Office.   

The court reasoned that " There is simply no language in § 3-2A-04(b)(3) that requires a claim to be dismissed if the expert’s report is not filed with the expert’s certificate or if the report was not otherwise filed within ninety days of the complaint."  Thus, there is no automatic penalty of dismissal for failure to attach the expert's report. 

However, the Court noted that the trial court may deal decisively with a delinquent report, for example by dismissing the complaint if no report is filed, or by setting a deadline for the filing of the report.

Tort Reform: Maryland Medical Malpractice Bill

The Maryland Patients' Access to Quality Health Care Act of 2004 was recently enacted.  Information concerning the bill's passage is here.  The unofficial, marked up text of the bill is here.  Among other things, the Act limits an award or verdict for noneconomic damage for a cause of action arising between 1/1/2005 and 12/31/2008 to $650,000.  After that, it increases by $15,000 per year.

Court of Appeals Holds That Wife Does Not Have Independent Cause of Action for Failed Vasectomy

A previous post noted a negligent vasectomy case that had been decided by the Maryland Court of Special Appeals.

Now the Court of Appeals of Maryland has issued an opinion in the same case, but on a different issue.  The Court held that a wife does not have an independent cause of action against a physician who is negligent in performing a vasectomy on her husband, where the wife had no relationship or direct interaction with the physician.  The husband had been barred from recovery from the physician due to his own contributory negligence in failing to seek a sperm count after the vasectomy.  The wife's claim was held to be a derivative one which fell with the husband's.  On appeal, the wife argued that she should be allowed to pursue an independent claim. 

The Court of Appeals held that because the physician owed no duty to the wife, who never even met the physician until the day of trial, she could not maintain an independent cause of action. 

Significantly, the defendant physician in this matter was not the urologist who performed the vasectomy, but was a physician who saw the husband on an unrelated matter.  The husband alleged that he asked the physician for a referral to get a sperm count done, and that the physician talked him out of it.

The Court reasoned in part that:

Nor are we willing to impose a legal duty on Dr. Edgecombe with regard to Mrs. Dehn based simply on his alleged awareness that Mr. Dehn was married. A duty of care does not accrue purely by virtue of the marital status of the patient alone; some greater relational nexus between doctor and patient’s spouse must be established, if it can be established at all, and here it was not. A duty of care to a non -patient is not one which Maryland law is prepared to recognize under these circumstances. The imposition of a common law duty upon Dr. Edgecombe to the wife under these circumstances could expand traditional tort concepts beyond manageable bounds. The rationale for extending the duty would apply to all potential sexual partners and expand the universe of potential plaintiffs. All of the above rationales for extending the duty of care apply with equal force to a non-spouse: Unmarried as well as married couples are bound by law to provide for their children, and the physical consequences of childbirth from a negligent vasectomy remain the same regardless of whether the mother is married or not.


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Maryland Court of Appeals Cuts Back Limitations Defense Based On Failure To Timely File Certificate of Merit in Medical Malpractice Arbitration

In Navarro-Monzo v. Washington Adventist Hospital, et al., the Maryland Court of Appeals pruned back a defense based on the untimely filing of a Certificate of Merit in a Health Claims Arbitration proceeding.

Essentially, the Court held that the Health Claims Arbitration Board has statutory authority, for good cause shown, to grant extensions of the time to file a Certificate of Merit for any length of time. Therefore, as long as plaintiff's counsel files motions to extend the time for the filing of a Certificate of Merit that are supported by good cause, it is unlikely that this defense will be successful in the future.

The Court of Appeals stated, in pertinent part, as follows:

The several provisions at issue here may be read together with out any difficulty. Recognizing the harshness of the penalty it has exacted for failing to file a certificate within the initial 90-day period, the General Assembly has provided three distinct, but complementary, escape valves. First, it has required that an extension of up to 90 days be granted if the conditions stated in §3-2A-04(b)(1)(ii) are met. Second, in §3-2A -04(b)(5) it has provided that an extension without any fixed statutory limit shall be granted by the Director or panel chairman for good cause shown. And finally, in §3-2A-05(j), it has allowed either of those persons to lengthen the time for filing the certificate, again without any fixed limitation. Especially as the right to grant indeterminate extensions was enacted as part of the bill that imposed the requirement in the first instance, was stated twice in the law, and was not amended in the 1989 enactment, there can be no doubt that it remains fully intact.

Notwithstanding a mandatory extension under §3-2A-04(b)(1)(ii), the Director and the panel chairman retain the authority to grant a further extension, beyond 180 days from filing of the claim, upon a showing of good cause.