In its opinion filed on April 27, 2018, the Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, held that for a defendant health care provider to be liable for medical negligence based on respondeat superior, i.e., for being the principal of an agent health care provider, the plaintiff’s certificate of qualified expert must identify the agent, specify the standard of care applicable to the agent, specify that the standard of care was breached, and state that the breach proximately caused the plaintiff’s injury.
In the case the Maryland Appellate Court was deciding, the Maryland medical malpractice jury had answered “no” to the question whether the defendant retina surgeon breached the standard of care and “yes” to the question whether the defendant retina surgeons group “by and through any one of its agents (excluding Defendant [retina surgeon]) negligently failed to follow one or more standards of care owed to [the plaintiff] before, on, or after the [date of the surgery].” The Maryland medical malpractice jury found that the violation of the standard of care “by the agents and employees of [the defendant retina surgeons group] was a proximate cause of the injury to [the plaintiff]” and awarded damages.
The Maryland Appellate Court held that where the only agent of the defendant retina surgeons group (“Group”) identified in the plaintiffs’ two certificates of qualified expert as having breached the standard of care was the named defendant retina surgeon whose alleged medical negligence allegedly caused the plaintiff’s loss of vision in his left eye due to injury to his optic nerve that resulted in atrophy, and no other agent of the Group was identified, the Group only could be found liable based on the negligence of the defendant retina surgeon. Because the Maryland medical malpractice jury found that the defendant retina surgeon did not breach the standard of care in his treatment of the plaintiff, the Maryland Appellate Court held that the Group could not be found liable. The Maryland Appellate Court further held that the evidence at trial was legally insufficient to support a finding of negligence on the part of any health care provider other than the defendant retina surgeon.
The Maryland Appellate Court held that a plaintiff may not file a certificate identifying an act of medical malpractice by a health care provider, whether individually or as an agent, waive out of the Health Care Alternative Dispute Resolution Office and into circuit court, and then target another health care provider as having committed malpractice, without filing a certificate as to that defendant. The Health Care Malpractice Claims Act specifically provides a vehicle by which a defendant who was not named in the arbitration proceeding may be joined, and that procedure requires that the plaintiff file a certificate identifying the new defendant and specifying the applicable standard of care and that the defendant breached it, causing the plaintiff’s injuries. CJP §3-2A-06B(g).
The Maryland Appellate Court stated that in the present case, the original certificate did not identify any health care provider other than the defendant retina surgeon as having breached the standard of care. If, in the course of discovery, the plaintiffs had learned information that caused their expert to alter his opinions from those specified in the original certificate, he could have done so, as long as the procedures were followed. The plaintiff’s expert’s supplemental certificate also did not identify any health care provider agent of the Group, other than the defendant retina surgeon, as having breached the standard of care. Moreover, the plaintiff’s medical expert did not state that the standard of care required that eye pressure-lowering medication be given prior to the surgery.
Source The Retina Group of Washington, Inc. v. Gustavo Crosetto, No. 2385, Sept. Term 2016.
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