Miller and Zois

How Much Medical Testifying Can a Medical Malpractice Expert Do Before the Expert Can No Longer Sign a Certificate of Merit?

        To bring a medical malpractice action in Maryland, the Plaintiff's medical malpractice lawyer must produce a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. In other words, this rule requires Maryland medical malpractice lawyers to file a certificate of merit sin every medical malpractice lawsuit showing the case has solid facts supporting a legal judgment. This requirement is to prevent frivolous medical claims from being filed in Maryland. Other states have similar rules as Maryland's medical malpractice requirements. The rule is probably unnecessary. Recent studies and a new book underscore what medical malpractice lawyers in Maryland have long known: it is economic suicide for personal injury lawyers to bring medical malpractice cases that lack merit. (There may be, however, value in requiring a certificate of merit to weed out cases that have not been vetted by a medical malpractice attorney; in 1987, the year after the certificate of merit requirement was adopted in Maryland, medical malpractice filing rates dropped in the state by 36%.)

Medical Expert Qualifications

       The necessary qualifications of the expert medical doctor vary with the subject matter of the particular claim. Under Maryland law, the preliminary requirement for medical doctor who executes a certificate of merit is that: 1) they have clinical experience, 2) provided consultation relating to clinical practice, 3) taught medicine in the defendant's specialty or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, the doctor must also be board-certified in the relevant area of medicine.

        The certificate of merit in Maryland medical malpractice cases must contain three elements:

1. Where the doctor is licensed to practice;

2. An opinion within reasonable degree of medical probability that the treating doctor departed from the applicable standard of care in treating the plaintiff and that there was damage from the breach of the appropriate standard of care;

3. That the doctor does not devote annually more than twenty percent (20%) of his professional activities to activities that directly involve testimony in personal injury claims.       

     Unless, within 90 days after the filing of a health care medical malpractice claim, the plaintiff files with the Health Claims Arbitration Office a certificate of a qualified expert attesting that a defendant's conduct constituted a departure from the standard of care and that the departure was the proximate cause of the alleged injury, the malpractice claim must be dismissed with prejudice. For purpose of the certificate of merit in Maryland medical malpractice claims, all medical defendants are considered together. In other words, Plaintiff does not have to have a certificate of merit against each doctor, only one of the doctors for the medical malpractice case to go forward in Maryland.

Related Certificate of Merit Links

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