information from deposition transcripts of the defense doctor into evidence pursuant to Rule 5-806. The MTLA Deposition Bank has a collection of deposition tran- scripts from doctors that defense attorneys typically utilize to do “peer reviews.”


Tip #8:


Include Your Treating Doctor’s C.V. In The 10-104 Package2


The plaintiff’s attorney should consider including the treating doctor’s resume with the medical records and bills introduced into evidence pursuant to Section 10-104. This gives the trial judge a better idea of the treating doctor’s qualifications to ren- der the opinions set forth in the medical reports.


This strategy also gives the


plaintiff’s attorney additional ammunition for closing argument.


1


Md. COURTS AND JUDICIAL PROCEED- INGS Code Ann. § 10-104 (2000) § 10-104. Admissibility of writings or records of health care providers (a) Definition. — (1) In this section the following terms have the meanings indicated. (2) “Health care provider” means: (i) A health care provider, as defined in § 3-


2A-01 of this article; (ii) An ambulatory surgical facility; (iii) An inpatient facility that is organized pri-


marily in the rehabilitation of disabled persons, through an integrated program of medical and other service provided under competent professional su- pervision;


(iv) A home health agency, as defined in § 19-401 of the Health-General Article; (v) Any health institution, service, or program for which a certificate of need is required under Title 19 of the Health-General Article; or (vi) A person who is: 1. Substantially similar to a health care pro-


vider described in items (i) through (v) of this para- graph; and


2. Regulated by another state to provide


health care services. (3) “State” means a state of the United States or


the District of Columbia. (b) Applicability. — (1) The provisions of this section apply only to a claim for: (i) Damages for personal injury; (ii) Medical, hospital, or disability benefits under §§ 19-505 and 19-506 of the Insurance Ar- ticle;


(iii) First party motor vehicle benefits under §§ 19-509 and 19-510 of the Insurance Article; and


(iv) First party health insurance benefits.


(2) This section does not apply to an action for damages filed under Title 3, Subtitle 2A of this ar- ticle.


(3) Subject to the provisions of paragraphs (1) and (2) of this subsection, the provisions of this section apply to a proceeding in: (i) The District Court; or (ii) A circuit court if the amount in contro- versy in the action in the circuit court does not ex- ceed the amount specified in § 4-401 of this article for that type of action. (c) Admissibility in general. — (1) A writing or record of a health care provider


Summer 2001 Trial Reporter 19


Consider the following hypothetical.


Suppose that the defense attorney submits a “peer review” of the plaintiff’s medical bills and records pursuant to Section 10-104 indicating that the treatment was excessive and the charges for the treatment were un- reasonable.


Suppose that the defense


attorney does not put the “peer review” doctor’s C.V. into evidence. The plaintiff’s attorney, on the other hand, puts the treat- ing doctor’s C.V. into evidence. When it is time for closing argument, the plaintiff’s attorney has additional ammunition, and can explain to the judge that the plaintiff’s treating doctor is qualified to determine what treatment was necessary for this plain- tiff, and what the reasonable charges for that treatment should be. The plaintiff’s attor- ney can further argue that the court has no idea who the defense “peer review” doctor


described in this section is admissible under this section if: (i) The writing or record is offered in the trial of a civil action in the District Court or a circuit court;


(ii) At least 60 days, except as provided in paragraph (2) of this subsection, before the begin- ning of the trial, the party who intends to intro- duce the writing or record: 1. Serves notice of the party’s intent to in-


troduce the writing or record without the support of a health care provider’s testimony, a list that iden- tifies each writing or record, and a copy of the writ- ing or record on all other parties as provided under Maryland Rule 1-321; and 2. Files notice of service and the list that


identifies each writing or record with the court; and (iii) The writing or record is otherwise ad-


missible.


(2) A party who receives a notice under para- graph (1) of this subsection and intends to intro- duce another writing or record of a health care pro- vider without a health care provider’s testimony shall:


(i) Serve a notice of intent, a list that identi- fies each writing or record, and a copy of the writ- ing or record at least 30 days before the beginning of the trial; and (ii) File notice of service and the list that iden- tifies each writing or record with the court. (3) The list required under paragraphs (1) and (2) of this subsection shall include: (i) The name of the health care provider for


each writing or record; and (ii) The date of each writing or record of the


health care provider or each date of treatment by the health care provider. (d) Supporting testimony — Writings or records


2


is, and that there is no evidence regarding his qualifications. The plaintiff’s attorney can point out that for all the court knows, the “peer review” doctor has only been prac- ticing for a short period of time, and is not qualified to render the opinions set forth in his “peer review” report.


Conclusion Section 10-104 of the Courts and Judi-


cial Proceedings Article definitely makes it easier to litigate the smaller cases. How- ever, it is important that the new practitioner take the time to read Section 10-104 in its entirety and understand ex- actly how it operates.


If the procedural


requirements of the Section are followed, the plaintiff’s medical bills and records come into evidence without the supporting testi- mony of a live medical witness.


to document condition, opinion or provision of health care. —


(1) A writing or record of a health care provider made to document a medical, dental, or other health condition, a health care provider’s opinion, or the providing of health care is admissible without the support of the testimony of a health care provider as the maker or the custodian of the writing or record as evidence of the existence of a medical, dental, or health condition, the opinion, and the necessity and the providing of health care. (2) A finder of fact may attach whatever weight to a writing or record that the finder of fact deems appropriate. (e) Same — Written statement or bill for expenses. —


(1) A written statement or bill for health care expenses is admissible without the support of the testimony of a health care provider as the maker or the custodian of the statement or bill as evidence of the amount, fairness, and reasonableness of the charges for the services or materials provided. (2) A finder of fact may attach whatever weight to a writing or record that the finder of fact deems appropriate. (f) Construction of section. — Nothing contained in this section may be construed to limit the right of a party to: (1) Request a summons to compel the atten- dance of a witness;


(2) Examine a witness who appears at trial; or (3) Engage in discovery as provided under the


Maryland Rules


This tip came directly from MTLA member Irwin Weiss’s speech at MTLA’s Seminar titled “25 Win- ning Strategies” that was held on February 16, 2001.


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