Maryland Malpractice Rule on How Often an Expert Can Testify

To bring a health care negligence action in Maryland, the plaintiff 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.

Another words, this rule requires Maryland medical malpractice lawyers to file 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 as Maryland’s medical malpractice requirements. The rule is probably unnecessary. It is economic suicide to bring medical error cases that lack merit.

Controlling Maryland Law

The Health Care Malpractice Claims Act, found in Maryland Courts and Judicial Proceedings Article § 3-2A-01 et seq., governs medical negligence claims in Maryland. Section 3-2A-04(4) requires that the expert signing a Certificate of Qualified Expert may not devote more than 20% of her professional activities to activities directly involving testimony in personal injury claims on an annual basis. The purpose of the “20% Rule” is to “prevent ‘professional witnesses’ from serving as attesting experts.”

The ramifications for not complying with the statute are very real.  Maryland law makes filing a perfected certificate is a condition precedent to bringing a malpractice claim.  This means if the certificate is defective for the 20% rule or any other reason, the lawsuit fails.

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: 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 the purpose of the certificate of merit, all medical defendants are considered together.

Related Certificate of Merit Links

  • Streaker v. Bousherhri is a 2017 case all malpractice lawyers in Maryland must read.  In this case, the court found that an expert devoted annually more than 20% of his professional activities to activities that directly involve testimony in malpractice cases.   Will this case be limited to its unique facts?  Maybe. But smart lawyers need to be keeping all of the relevant issues in mind.
  • You better know this to avoid committing legal malpractice if you bringing medical malpractice claims in Maryland
  • Sample Certificate of Merit (Waltzer compliant certificate of merit)
  • How to waive out of health claims arbitration in Maryland
  • Sample Expert Opinion (an example of an expert report in a malpractice case)
  • Get an example complaint
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