Compliance with the Court (Continued from page 20)
(2006). The court began by observing that because the [Health Care Malpractice Claims] Act in general and the “attesting expert” provision in particular are in derogation of the common law, they must be narrowly construed. . . . and, where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in the common law.
Osborne v. Walzer, 167 Md. App. at 465 - 466. Thus, the Court of Special Appeals relied on a narrow interpretation of the Act, concluding that there is simply no language in § 3-2A- 04(b)(3) that requires a claim to be dismissed if the expert’s report is not filed with the expert’s cer- tificate or if the report was not otherwise filed within ninety days of the complaint. While the statute plainly mandates dismissal for fail- ing to file the certificate within the prescribed ninety-day time period, it does not impose such a penalty either for failing to attach the report to the certificate or for filing the report late.
Osborne v. Walzer, 167 Md. App. at 465. Central to the court’s reasoning was a concern that a sanction as extreme as dismissal should not be levied pursuant to a statute in derogation of common law unless that statute specifically al-
lows for that sanction. The rule of strict construction of statutes in derogation of common law in effect, prohibits this Court from finding a penalty, particularly one as lethal as appellees request, in § 3-2A-04(b), where none has been articulated. While § 3-2A-
tinguishing Walzer’s certificate from the certificate found lacking in D’Angelo. In sharp contrast to the certificates filed in D’Angelo, appellant’s cer- tificate specifically named appellees as the health care providers who allegedly rendered the substan- dard care that proximately caused
Unfortunately, the edicts contained in Konits, like those in Walzer, are likely to cause much unintended mischief in the world of medical negligence litigation, and, tragically, could well lead to the dismissal of meritorious cases, slamming the courthouse door in the faces of victims of health care provider negligence.
04(b)(1)(i) unambiguously directs dismissal of a claim, whose sup- porting certificate is either untimely filed or lacks specific attestations, § 3-2A-04(b)(3) is silent as to what occurs to the same claim if an attest- ing expert’s report is not filed with the certificate, as required by that provision, or within ninety days of the complaint.
Osborne v. Walzer, 167 Md. App. at 466. Walzer argued that his contention that
Osborne’s certificate of merit was fatally flawed flowed naturally from the Court of Special Appeals’ earlier opinion in D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 853 A.2d 813 (2004). The court declined to expand D’Angelo, dis-
Harry A. Milman, Ph.D.
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his injuries. Moreover, there is no dispute that appellant’s certificate fully met all other statutory require- ments. Indeed, the only significant circumstance that the two cases share is that here, as inD’Angelo, no report was filed with the certificate of a qualified expert. But appel- lants corrected that error and did so without provoking any claim of prejudice by the defendant health care providers.
Osborne v. Walzer, 167 Md. App. at 470-471. Much of the struggle encountered by
Maryland’s appellate courts in interpret- ing the certificate of merit and report requirements of the Act arises from the legislature’s own difficulty in determin- ing the specifics of the legislation. While the “obvious purpose of the certificate requirement . . . reflects the General Assembly’s desire to weed out, shortly after suit is filed, nonmeritorious medi- cal malpractice claims,” the purpose of the appending report requirement has never been so clear. Osborne v. Walzer, 167 Md. App. at 467, quoting, D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645, 853 A.2d 813 (2004). In the way that the statute is written, it is clear that it is the function of
(Continued on page 24) Fall 2007
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