The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, held in its unpublished opinion dated December 26,2019: “The ministerial act of transferring the case from the HCADRO to the circuit court—an action the Director took at Ms. Mahon’s express request—did not prevent the circuit court from considering the appellees’ motion to dismiss. After two extensions, Ms. Mahon [the plaintiff] failed to file her Certificates by the deadline specified in the second extension. And for reasons that remain unclear, she waived arbitration before the HCADRO decided her third motion for extension of time. “The effect of this waiver was that the claims would not be heard in the HCADRO and would instead be heard in the Circuit Court.” Kearney, 416 Md. at 660. We hold that the circuit court had jurisdiction to grant Mercy’s motion to dismiss, and that its otherwise unchallenged decision stands.”
Maryland’s Requirement For Filing Certificate Of Qualified Expert in Medical Malpractice Cases
A plaintiff alleging medical malpractice must file a claim with the HCADRO (Health Care Alternative Dispute Resolution Office). CJ § 3-2A-04(a)(1)(i). Within 90 days after filing such a claim, the plaintiff must “file a certificate of a qualified expert . . . attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury[.]” CJ § 3-2A04(b)(1)(i). “[A] report of the attesting expert” must be attached to the certificate. CJ § 3-2A-04(b)(3)(i). After filing the certificate, the plaintiff may waive arbitration and pursue his claim in the circuit court. CJ § 3-2A-06B(b)(1). If a plaintiff fails to file the certificate before filing suit in the circuit court, the action must be dismissed without prejudice.
In the case the Maryland Appellate Court was deciding, the Maryland medical malpractice plaintiff obtained two, 90-day extensions to file the necessary Certificate of Qualified Expert and expert report. The plaintiff failed to file the necessary Certificate and report by the extended deadline and the defendants filed a motion to dismiss five days later. That same day, the plaintiff filed the Certificate and report of an expert along with a third Motion for Extension of Time. The next day, without waiting for the Director’s decision on the third motion, the plaintiff filed an Election to Waive Arbitration with the HCADRO and another Certificate and report. The next day (December 8, 2018), the Director of the HCADRO ordered the case transferred to the circuit court.
The defendants filed a motion to dismiss in the circuit court, resulting in dismissal because “there was ‘no circumstance in which the CQE filing deadline before HCADRO could be ignored in favor of a belated extension motion and belated CQE filing.'” The plaintiff appealed, arguing that because she had not filed a timely Certificate (her two Certificates were late and her belated motion for extension of time hadn’t yet been ruled on) before she waived arbitration, the circuit court never had jurisdiction over the case and, therefore, could not dismiss it.
Maryland Appellate Court Opinion
The Maryland Appellate Court stated: “although the Certificate “is a condition precedent to filing a medical malpractice case in circuit court, failure to satisfy that condition does not . . . divest the court of subject matter jurisdiction” … The sufficiency of the Certificate isn’t a prerequisite for waiving arbitration, only the filing. And we are bolstered in this view by the fact that the statute directs either the HCADRO or the court to grant extensions of time to file Certificates when appropriate. See CJ § 3-2A-04(b)(1)(ii).”
The Maryland Appellate Court held “the circuit court had jurisdiction to grant [the defendant’s] motion to dismiss.”
Source Mahon v. Kim, No. 1174 September Term, 2018.
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