December 5, 2019

The Court of Special Appeals of Maryland (“Maryland Appellate Court”), in its unreported opinion dated November 27, 2019, affirmed the dismissal of the plaintiff’s Maryland medical malpractice lawsuit where the plaintiff failed to timely file the required Certificate of Qualified Expert and Report.

Maryland Medical Malpractice Laws

The Maryland Health Care Malpractice Claims Act (“the Act”) is codified in Md. Code (2013 Repl. Vol.) §§ 3-2A-01 – 3-2A-10 of the Courts and Judicial Proceedings Article (“CJP”). To bring a suit under the Act, where the amount sought is more than $30,000, a plaintiff must first file a claim with the Director of the Health Care Alternative Dispute Resolution Office (“HCADRO”). Unless the sole claim raised in the complaint is lack of informed consent, the complainant, within 90 days after filing a claim, must ordinarily file a certificate of a qualified expert (“the Certificate”) along with a report from that expert. The Certificate and report must attest to a health care provider’s departure from the relevant standard of care that proximately caused the injury. CJP § 3-2A-04(b)(1)(i)1 states: “Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint[.]”

There are three exceptions to the requirement that a Certificate be filed within 90 days. The first exception, at CJP § 3-2A-04(b)(1), reads: (ii) In lieu of dismissing the claim or action, the panel chairman or the court shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if: 1. The limitations period applicable to the claim or action has expired; and 2. The failure to file the certificate was neither willful nor the result of gross negligence.

The second exception to the 90-day filing requirement is set forth in CJP § 3-2A04(b)(5), which provides: “[a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for good cause shown.”

The third exception is somewhat similar to the second, and is set forth in CJP § 3-2A-05(j), which provides: “[e]xcept for time limitations pertaining to the filing of a claim or response, the Director or the panel chairman, for good cause shown, may lengthen or shorten the time limitations prescribed in . . . § 3-2A-04 of this subtitle.”

In the case the Maryland Appellate Court was deciding, the plaintiff had undergone cataract surgery that she alleged was negligently performed, leading to the loss of her left eye. The Director of the HCADRO gave the plaintiff two extensions, but by the date that the second extension expired, she had not filed the required Certificate or report. The defendants filed a motion to dismiss. The plaintiff filed the Certificate together with a report from a qualified expert five days after the motion to dismiss was filed. The defendants’ motion to dismiss was not ruled on before the case was transfered to the circuit court.

In the circuit court, the defendants again filed a motion to dismiss, arguing that the plaintiff failed to timely file the Certificate and report in HCADRO. The plaintiff admitted that her Certificate and report had not been timely filed but argued both the Certificate and the report were “totally valid and sufficient” under the Act. The circuit court granted the defendants’ motion to dismiss, and the plaintiff appealed.

Appellate Court Opinion

In addressing the plaintiff’s argument that her Maryland medical malpractice lawsuit should not be dismissed (even if good cause for the late filing is not shown) so long as the expert’s certificate and report is “fully proper and sufficient,” the Maryland Appellate Court stated, “We hold that this contention has no merit because it is at odds with what the Court of Appeals said in Wilcox, 443 Md. at 185-86: … To ameliorate the possibility that a claim dismissed without prejudice for failure to file a timely certificate might be barred by the concurrent running of the limitations period, the statute includes several provisions for enlarging the period of time for filing the expert certificate and report. Nevertheless, a failure to file both the certificate and report within the statutory period and any extension will result in dismissal of a complaint.

Source Dorchy v. Hsieh, No. 2281 September Term, 2018.

If you or a loved one may have been injured as a result of medical malpractice in Maryland, you should promptly find a Maryland medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Maryland medical malpractice case, if appropriate.

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