On November 3, 2020, Christian Otto was admitted to the emergency room at UPMC Western Maryland with drowsiness and intermittent loss of consciousness. Upon admission, and throughout his two-week stay, Otto was treated by a myriad of physicians and nurses at UPMC. Although consultation reports noted that Otto presented as morbidly obese, a bariatric bed was not ordered for him until November 11, eight days following admission to the hospital. At that time, Otto was diagnosed with a sacral pressure ulcer. Otto underwent surgical debridement of the ulcer, and was discharged three days later, on November 27.
Nearly two weeks later, after losing consciousness, Otto visited the Hampshire Memorial Hospital Emergency Room, where he was diagnosed with a stage III sacral decubitus ulcer. Otto received further treatment and transport to the Winchester Medical Center, and was subsequently discharged. In Otto’s discharge assessment it was noted that for six months he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time.
Per CJP section 3-2A-01, et. seq., Otto filed a medical malpractice claim with the Health Care Alternative Dispute Resolution Office (the “Office”) before filing his claim with the Circuit Court for Allegany County, asserting that UPMC’s negligence, through their agents and employees, proximately and directly caused Otto “past and future mental
anguish, emotional pain and suffering, physical pain and suffering, loss of society, companionship, and comfort as well as economic damages” associated with the infected ulcer. Alongside Otto’s claim to the Office, he filed the requisite certificate of qualified expert (“CQE”) and accompanying expert report.
UPMC moved to dismiss the claims, asserting that Otto’s CQE and report were deficient and therefore the statutory pre-claim requirements had not been satisfied. The circuit court granted UPMC’s motion to dismiss, ruling that a “related specialty” is one in which there is an overlap in treatment and procedure: the plaintiff’s expert board certification in general surgery and the named providers’ board certifications in internal medicine, pulmonary medicine, and infectious diseases may overlap as to performing physicals; however, the overlap in treatment ends there. Otto appealed.
The Appellate Court of Maryland, in an unreported opinion filed on December 11, 2025, stated that the Health Care Malpractice Claims Act (“HCMCA”) purpose is to screen malpractice claims, ferret out meritless ones, and, in theory, thereby lower the cost of malpractice insurance and the overall costs of health care. Specialties are related when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or
procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case.
The Maryland appellate court stated: “Moreover, a CQE that satisfies the peer-to-peer requirement as to some named
providers, but not others, satisfies the requirement overall because “[t]he claimant or plaintiff is not required to prove his or her case with the [CQE,]” and in reviewing the CQE the trial court is to “accept[] the assertions in the certificate, just as courts accept a plaintiff’s well-pleaded facts and allegations in a complaint.””
In the case the Maryland appellate court was deciding, the procedure at issue was the failure to monitor the development of—or in other words, physical examination for, and the documentation and treatment of, sacral decubitus ulcers: “the treatment at issue here—physical examination of a patient sitting for days in a hospital bed—is one shared between the specialties, whether performed by surgeons before and after surgery or as a hospitalist by the internal medicine doctor … In granting UPMC’s motion to dismiss here, the circuit court acknowledged that board certification in general surgery and internal medicine may overlap as to “perform[ing] physicals”; however, “the overlap in treatment ends there.” This is correct; however, the circuit court did not recognize that an overlap as to “performing physicals” as a doctor is what is needed in a case where the procedure at issue is a proper physical exam of a patient.”
The Maryland appellate court held in the case it was deciding: “Under the specific facts of this case, examining, documenting, and diagnosing medical problems, including ulcers, is a procedure shared by both general surgeons and
internal medicine doctors. Additionally, because the peer-to-peer requirement is met as to the named physicians who are board certified in internal medicine, the CQE is sufficient as to the peer-to-peer requirement even though the same requirement may not be met for the named nurses or other specialties … the circuit court erred in granting UPMC’s motion to dismiss based on the contention that HCMCA’s peer-to-peer requirement was lacking.”
Furthermore, “If a CQE names individual healthcare providers who are all the servants, agents, or employees of the defendant, then the defendant has been sufficiently identified … Here, unlike in Dunham, the CQE specifically provides the names of healthcare providers whose actions should be evaluated to determine UPMC’s liability. Cf. Dunham, 237 Md. App. at 652–53. All the named providers are UPMC employees, and any that are not employees are apparent agents of UPMC. Under Maryland agency law, the nonemployee named providers here are likely apparent agents because they treated Otto inside UPMC’s hospital and, without any allegations of notice given regarding independent contractor status, therefore were justifiably represented as agents of UPMC. See Mehlman, 281 Md. 273–75. In addition, Otto alleged in his complaint that the named providers were “agents, servants and/or employees” of UPMC. Otto’s CQE identified UPMC, and its agents, servants, and employees. Naming the providers at issue is akin to naming the defendant and is sufficient under the statute as to the identification requirement. See id.; see also Carroll, 400 Md. at 172.”
Source Otto v. UPMC Western Maryland Corporation, No. 1596 September Term, 2024.
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