Bringing a Malpractice Action in Maryland

Malpractice claims are treated differently than other personal injury cases in Maryland. To bring a health care negligence lawsuit, the plaintiff must follow specific procedures before a claim can be filed in court. The procedure to file medical malpractice in Maryland is someone complicated.

First, a plaintiff must obtain a certificate of merit from a medical doctor to accompany the claim (see a sample malpractice claim here) that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. In other words, this rule requires the filing of a certificate of merit in 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. The rule is probably unnecessary.

Why? It is economic suicide to bring medical provider error cases that lack merit. (There may be, however, a 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%.)

The necessary qualifications of the expert medical doctor vary with the subject matter of the particular claim. Under our 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 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 (before filing a lawsuit the usual court system) 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.

You must also identify on the certificate of merit the doctors or other negligent health care provider who allegedly deviated from the standard of care. The message is, as always, bring your malpractice case long before you are on the heels of the statute of limitations so you do not have a problem doing the necessary discovery to find all of the potentially negligent parties. If you look at filed malpractice cases in Maryland, you will find that most lawyers wait until the statute of limitations is just about to pass.  It is a terrible time to file a lawsuit.

Another key is proximate cause.  Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a physician, nurse, clinic or hospital using ordinary care would have foreseen that the event or some similar event might reasonably result therefrom.  But it is important to keep in mind that a there may be more than one proximate cause of an event. The threshold in Maryland is whether the conduct was a substantial contributing cause of the injury.

Certificate of Merit Advice