In 2002, the decedent was admitted to Good Samaritan
Hospital for a hepatorneal arterial bypass to be performed by Dr. Breslin. The
decedent developed an epidural hematoma that resulted in his paralysis. This
complication eventually led to his death on March 8, 2004, prompting the instant
lawsuit.
Plaintiffs filed suit against numerous parties,
including the treating physicians and their professional associations. In
Maryland, the procedures for filing medical malpractice actions are governed
by the Maryland Healthcare Malpractice Claims Act, codified at MD. CODE
ANN., CTS. & JUD. PROC. § 3-2A-01 et seq.
("the Act")
The Act affects various requirements for malpractice
actions. The requirement relevant to the instant litigation is found at §
3-2A-02(c) and provides in pertinent part:
Establishing liability of healthcare provider;
qualifications for persons testifying. –
(1) in any action for damages filed under this
subtitle, the healthcare provider is not liable for the payment of damages
unless it is established that the care given by the healthcare provider is
not in accordance with the standards of practice among members of the same
healthcare profession with similar training and experience situated at the
same or similar communities at the time of the alleged act giving rise to
the cause of action.
(2)(i) This paragraph applies to a claim or action
filed on or after January 1, 2005.
(ii) 1. In addition to any other qualifications, a
healthcare provider who attests in a Certificate of a Qualified Expert or
testifies in relation to a proceeding before a panel or court concerning a
defendant's compliance with or departure from standards of care:
A. Shall have had clinical experience, provided
consultation related to clinical practice, or taught medicine in the
defendant's specialty or a related field of healthcare, or in a field of
healthcare in which the defendant provided care or treatment to the
plaintiff, within five years of the date of the alleged act or omission
giving rise to the cause of action; and
B. except as provided in item 2 of this subparagraph,
if the defendant is board certified in a specialty, shall be board certified
in the same or related specialty as the defendant.
2. Item (ii) 1.B of this subparagraph does not apply
if:
A. The defendant was providing care or treatment to the
plaintiff unrelated to the area in which the defendant is board certified;
or
B. The healthcare provider taught medicine in the
defendant's specialty or a related field of healthcare.
Plaintiffs filed the action against Dr. Breslin,
Plaintiffs' vascular surgeon, and his professional association. Plaintiffs
identified Dr. Ronald E. Burt, an anesthesiologist, as an expert and
included a Certificate of Qualified Expert signed by Dr. Burt.
Over a year after the Certificate of Expert was filed,
Dr. Burt was finally deposed and it was discovered that Dr. Burt had no
clinical experience in vascular surgery. He had never taught in the field of
vascular surgery and did not hold himself out as an expert in the field. His
only professed area of expertise was in anesthesiology.
Based on the testimony, Dr. Breslin and his
professional association filed a Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment arguing that Plaintiffs failed to satisfy all of
the requirements of the Maryland Health Claims Arbitration Act because Dr.
Burt did not possess the requisite experience and training to be an expert
in vascular surgery. Thus, Plaintiff's Certificate of Expert was inadequate
and the trial court granted the Motion for Summary Judgment.
The Plaintiffs appealed on the appropriateness of the
trial court's grant of the Motion for Summary Judgment. Plaintiffs argued
that the appropriate remedy for disqualification of their certificate was
dismissal without prejudice.
The Intermediate Appellate Court decided an issue based
on statutory interpretation.
The plain language of the statute unambiguously
required a Certificate of Qualified Expert. Past precedent from the Court of
Special Appeals held that failure to file a certificate that satisfied the
Act was "tantamount to not having filed a certificate at all."
See Powell v.
Breslin, no. 181, *at 8 (internal citations omitted). In such cases, the
appropriate remedy is dismissal without prejudice.
Thus, the Circuit Court erred in granting the
defendant's Motion for Summary Judgment, when dismissal without prejudice
was a statutorily mandated remedy for failure to comply with the Certificate
of Expert. The lower court was reversed, and the case was remanded.
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