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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

Health Care Provider Who?

John T. SlyJohn T. Sly

Imagine you are representing a large hospital or medical practice and the plaintiff's lawyer suing for malpractice names the hospital or practice — without saying who specifically breached the standard of care. How can you defend someone that plaintiff has failed to identify?

It is not hard to imagine that 25 or more health care providers from different fields of medicine might care for a complicated hospitalized patient. Even in a private practice with multiple physicians, nurses and physician assistants, one can see how a patient might be treated by a number of health care professionals over the course of an illness. When a plaintiff's lawyer names only the hospital or the practice, the defense is left in the dark as to who was allegedly negligent. From experience, the plaintiff's failure to name a specific health care provider as having committed negligence is due either to the inability of the plaintiff's lawyer to identify the allegedly negligent person by name, or is evidence of an intentional strategy to proceed through discovery, and maybe even trial, without having to narrow down the target. Either way, the defense must ferret-out precisely who plaintiff claims breached the standard of care. The good news is that Maryland law can help.

In order to maintain a medical malpractice claim, a plaintiff must meet the requisite statutory requirements of the Health Care Malpractice Claims Act, set forth in the Courts and Judicial Proceedings Article of the Maryland Code, section 3-2A-01, et. seq., (“the Malpractice Claims Act”). The first such requirement of the Malpractice Claims Act is that “claims against health care providers, first, be submitted to arbitration...” Walzer v. Osborne, 395 Md. 563, 575, n. 7, 911 A.2d 427, 433 (2006) (citing CJP § 3-2A-02(a)). The second is the filing of a certificate of a qualified expert and an accompanying report, both of which must comply with various statutory requirements. The filing of the certificate and report is not just a procedural mechanism by which jurisdiction in the circuit court is obtained; rather, it is an “indispensable step” in the medical malpractice process and a condition precedent to obtaining subject matter jurisdiction in the Circuit Court. Walzer, 395 Md. at 582. Because the filing of a certificate is an “indispensable step in the [HCADRO] arbitration process,” a plaintiff can only pursue a claim in circuit court after filing a certificate and report that meet the statutory requirements enunciated in Walzer and its progeny. Id. at 577.

A certificate and report that contain only general statements alleging that a defendant health care provider breached the standard of care is not sufficient. Carroll v. Konits, 400 Md. 167, 172, 929 A.2d 19, 22 (2007). Rather, the certificate must include, at a minimum, a statement that the defendant’s conduct breached a particularized and defined standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiffs’ injuries. Id. Maryland courts consistently hold that if a plaintiff fails to file a satisfactory certificate of qualified expert and accompanying report, his case shall be dismissed without prejudice. Id. A report that fails to define the standard of care and provide, with specificity, how the health care provider breached the standard of care must be stricken. Carroll, 400 Md. at 197-98 (upholding the trial court’s dismissal of the plaintiff’s case on the basis that the certificate of qualified expert and report failed to explain the requisite standard of care owed to the plaintiff or how the defendant’s care departed from it).

In addition to meeting the substantive report requirements, the expert witness who provides the plaintiff with a certificate of qualified expert and report must be board certified in the same or similar field as the health care provider about whom he is testifying, unless certain exceptions apply. CJP § 3-2A-02 (c)(2). This is also true for any health care provider who intends to testify at trial on the standard of care.

The Court of Appeals addressed the issue of identifying the actual alleged tortfeasor in a series of important cases. The Court found that inherent in the certificate of qualified expert and report requirements is the threshold mandate “…that the certificate mention explicitly the name of the licensed professional who allegedly breached the standard of care.” See Carroll, 400 Md. at 196; Witte, 369 Md. at 521; Kearney v. Berger, 416 Md. 628, 648 (2010). Indeed, the purpose of the Statute is to “weed out non-meritorious claims.” Kearney, 416 Md. at 645 (citing Carroll, 400 Md. at 196). A certificate which fails to specifically identify each physician who has breached the standard fails to satisfy this purpose, and is of no assistance to “‘…the opposing party, the [Health Care Arbitration and Dispute Resolution Office], and the courts [in] evaluat[ing] whether a … particular physician out of several … breached the standard of care.’” Id. (quoting Carroll, 400 Md. at 196).

Thereafter, the Court of Special Appeals referenced this issue in Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517 (2013). One of the primary holdings of Puppolo is that if a plaintiff fails to meet the statutory requirements of a certificate and report, the plaintiff must start again in HCADRO. In other words, the plaintiff cannot cure the defect in Circuit Court. Id. at 229-232. Often lost in the opinion by Judge Zarnoch, however, is that the circuit court below had dismissed Adventist Healthcare (“Adventist”) without prejudice because the court determined that Puppolo's certificate did not specifically identify the licensed professionals at Adventist whom she alleged breached the standard of care. Id. at 524. The Puppolo Court not only referred to the circuit court ruling, it specifically referenced the statutory provision it believed controlled this issue. The Court noted that

Read literally and as a response to Walzer, CJP § 5–119 appears to apply only to a failure to file a proper expert’s report under CJP § 3–2A–04(b)(3), rather than the failure to file a sufficient certificate of qualified expert under § 3–2A–04(b)(1). The January 28, 2011 dismissal of Puppolo’s claim against Adventist for failure to sufficiently identify the responsible providers in the certificate seems to smack more of a deficiency under § 3–2A–04(b)(1), rather than a failure to comply with § 3–2A–04(b)(3). (emphasis added)

Puppolo, 215 Md. App. at 529.

The foregoing statements of both the Court of Appeals and Court of Special Appeals make clear that plaintiff's failure in their certificate of qualified expert and report to specifically identify by name a human health care provider who is alleged to have breached the standard of care requires dismissal of the case without prejudice. The upshot of this analysis is that the failure to name a putatively negligent health care provider should prompt the defense to move to strike the certificate of qualified expert and report. Plaintiff must then refile their case in HCADRO with an appropriate certificate and report. Only then can the defense properly prepare to address the allegations against a particular health care provider.

Maryland law has developed through both statutory modifications and important case law in the area of what is required to be contained in the certificate of qualified expert and report. It is important that we as the defense bar aggressively seek to apply the appropriate rules so as to “weed out non meritorious claims.” Kearney v. Berger, 416 Md. 628, 645 (citing Carroll, 400 Md. at 196.)

John T. Sly is a trial attorney and partner at Waranch & Brown, LLC. His practice focuses on the aggressive defense of physicians and health care facilities, and product manufacturers and retailers throughout Maryland. Since becoming a trial attorney he has served on the Executive Board of the Maryland Defense Counsel and is actively involved with ABOTA, the Maryland State Bar Association, the Defense Research Institute and the MD-DC Society for Healthcare Risk Management.

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