– Reports / HB 388 and SB 309 – Civil Actions – Dismissal or Termination – Limitations Four bills were introduced to legis-
late relief from the harsh consequences brought about by Walzer vs. Osborne, in which the Court of Appeals, in dicta, set aside 20 years of common Maryland practice by imposing new requirements for the report that accompanies a Cer- tificate of Qualified Expert. As a result, some circuit courts in Maryland had dismissed otherwise valid malpractice cases on the basis that the report was deficient. Some patients were likewise asking courts to enter judgment against physicians for filing “bad” reports under the newWalzer rule. HB 495 and SB 642, if adopted, would have removed the re- port requirement (but not the certificate requirement) for both patients and doc- tors, and in effect would have restored the status quo. And so things proceeded until the final vote on the bill (3rd
reader) when
the Maryland Hospital Association and MedChi successfully agitated a sufficient number of legislators with wild claims that HB 495 would undo the medical malpractice reforms of the 2004 Special Session and open the door for frivolous lawsuits, to defeat the bill. Illustrating the law of unintended consequences, this defeat was the impetus for an even greater victory – the passage of SB 309/ HB 388 – the savings clause bill. Although the Senate had passed
SB 309, sending it to the House for consideration, at the time HB 495 was defeated, it was generally believed the Savings Clause Bill was dead on arrival because its House counterpart (HB 388) had been withdrawn due to lack of sup- port. Nevertheless, as MTLA was able to demonstrate to House members that the opponents of HB 495 had misrepre- sented its purpose and effect in order to defeat the bill, a growing tide of support arose in the House for addressing Walzer via SB 309. As a result, MTLA was able to work with supporters of SB 309 to craft amendments that would enable the bill to pass the House and eliminate the more onerous application of the Walzer case – dismissal of a case after the statute of limitations applies. Under SB 309 as passed, the first time a
Summer 2007
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medical malpractice action is dismissed without prejudice for the failure to file an expert report in accordance with §3- 2A-04(B)(3) of the Courts & Judicial Proceedings Article, a new action may be filed for the same cause against the same party or parties on or before the later of: 1) the expiration of limitations; 2) 60 days from the date of dismissal; or 3) August 1, 2007, if the action was dismissed on or after November 17, 2006, but before June 1, 2007. The bill applies to any case still in the court sys- tem (including on appeal) as of June 1, 2007. The bill was signed by the governor on May 8, 2007, and took effect June 1, 2007.
Workers’ Compensation
HB 480 and SB 550 – Workers’ Compen- sation – Appeals – Evidence These bills would have admitted medical
records in an appeal without expert wit- ness testimony, provided: 1) the records had been introduced at the Commission hearing; 2) proper notice is given; 3) the records are introduced by the appellee; and 4) they are otherwise admissible. These bills failed for two reasons. There is reluctance, especially in the Senate, in the absence of a consensus from claimant and defense interests, to pass significant workers’ compensation legislation. Second, considerable confusion arose over whether – and how – to limit the applicability according to the amount in controversy, similar to §10-104.
SB 549 – Workers’ Compensation – Ju- risdiction of Commission Pending Appeal – Temporary Total Disability This bill would have authorized the
Commission to retain jurisdiction over temporary total disability benefits while a prior Commission order is on appeal.
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Trial Reporter
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