An expert may certify a case only if he or she "has
clinical experience, provided consultation relating to clinical practice, or
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 treatment to the
plaintiff, within five years of the date of the alleged act or omission giving
rise to the cause of action." Further, if a defendant is board-certified in a
specialty, then the certifying expert must be board-certified in the same or a
"related specialty" as well. To date, however, Maryland courts have not
addressed what a "related specialty" is. This case, however, written by Judge
Alexander Williams of the United States District Court of Maryland (Southern
Division), affords practitioners some guidance.
Although the specific allegations of malpractice are
not discussed in the opinion, this case involved alleged mistreatment of a
child by an emergency room physician. The plaintiff obtained a pediatrician
to certify the case against the emergency physician. In response, the
physician's attorneys filed a motion to dismiss because the plaintiff's
certifying expert was a pediatrician and not an emergency room physician or
an internist. The defendants argued that the purpose of the Act was to
prevent "hired gun experts from freely roaming outside of their chosen
fields, and opining on standards of care that they cannot possibly address,
based on the scope of their training and certifications."
In holding that the pediatrician was board-certified in
a "related specialty" and thus, competent to certify the case, Judge
Williams concluded that the pediatrician was knowledgeable in the proper
evaluation of children, which was the issue giving rise to the plaintiff's
claim. In reaching his opinion, Judge Williams formulated the following test
which may be embraced by Maryland courts in the future:
(1) What is the procedure or procedures at the source
of the claim;
(2) Is the procedure common to the specialties;
(3) What experience does the purported expert have with this specific
procedure; and
(4) Is the standard of care applicable to the procedure, to both?]
Judge Williams gleaned this test in part from a Virginia
State Court opinion that analyzed statutory language similar to the Act. Though
this test is not binding in a Maryland court, it will be very persuasive in the
future.
Applying Judge Williams' standard to the instant case,
defendants' motion to dismiss was denied. Judge Williams found that the
issue in this case - examining a child that is sick - is performed by
pediatricians, internists and emergency room doctors alike. He wrote:
If the procedure is one in which both health care
providers have experience with and the standard of care is purported to be
similar, then the expert's qualifications satisfy the requirements of the
Act. If a procedure is common to two specialties, an inference of relation
is created between the two specialties. However, if the procedure is one in
which the purported expert does not have experience or performs with a
meaningfully different standard of care, then the expert does not qualify
under the Act.
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