Medical malpractice plaintiffs in Maryland must file a Certificate of Qualified Expert in order to assert a claim with the Health Care Alternative Dispute Resolution Office, and ultimately with a Circuit Court. Md. Cts. & Jud. Pro. § 3-2A-04. The statute provides that if a plaintiff fails to file such a certificate the trial court should dismiss the claim without prejudice–in other words, the plaintiff may refile the case.
Recently, the Maryland Court of Appeals explained that dismissal without prejudice is the proper remedy where a plaintiff files a certificate naming a physician who is not qualified to testify, and that summary judgment (entering judgment in favor of the defendant health care provider) is not appropriate. Breslin v. Powell, No. 134, September Term 2010.
In the Breslin case, plaintiff brought suit against a vascular surgeon for allegedly causing the death of a patient by improperly administering anesthesia. In support of the claim, plaintiff filed a certificate of qualified expert authored by an anesthesiologist. The defendant-physician moved to dismiss or alternatively for summary judgment, asserting that the anesthesiologist was not qualified to testify as to the standard of care for vascular surgeons. The trial court agreed with the defendant-physician. However, instead of dismissing the matter, the trial court granted summary judgment (found that the plaintiff had lost its case for failing to supply adequate proof for a jury to find otherwise). The plaintiff appealed, asserting that the trial court should have dismissed the matter without prejudice so that the case could be refiled.
In deciding the case on appeal, the Court of Appeals explained that the plain meaning of the statute which provides that a claim “shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of qualified expert” is not limited to situations where a plaintiff altogether fails to file a certificate. Dismissal without prejudice is also the proper remedy when an expert has been struck. The Court looked to prior appellate decisions which explained that failure to file a proper certificate is the same as filing no certificate at all. The decision further includes a history of the three recent medical malpractice crises of the last four decades, analyzing the responses of both the Maryland General Assembly and the Maryland judiciary.