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departed from the standards of care, will help weed out non-meritorious claims and assist the defendant in evaluating the merit of the health claim.


Walzer v. Osborne, 395 Md. at 582-583 (emphasis added). In essence, theWal- zer court decided to judicially dictate the required contents of expert reports, even though the statute is quite silent in that regard and even though the court acknowledged that “it is unclear from the statute exactly what the expert report should contain.” In light of the previously described legislative history behind the certificate and report, the court’s blithe declaration of the dictates of common sense as to expert report contents seems misplaced. From the available history, it appears that the reason the legislature first considered requiring two documents, a certificate and a report, is that the certificate was intended to bind the attorney to a


statement that the merits of the case had been investigated. The physician’s report was to be “annexed” to the attorney’s certificate. Nonetheless, the only clear guidance provided by the legislature as to the required contents of either the certificate or report is that the certificate must “attest to depar- ture from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury.” Cts. & Jud. Proc. Code Annot. § 3-2A-04(b) (1)(i). Moreover, it is very clear that the legislature intended the certificate/report to serve an initial screening function and not as a sub- stitute for discovery. Notwithstanding the fact that the entire Act is in dero- gation of the common law and should be narrowly construed, the Court of Appeals somehow was able to discern such “clear legislative intent” as to jus- tify the judicial grafting of a wholesale expansion of interpretation onto an


existing statute. Walzer v. Osborne, 395 Md. at 576. Ironically, the Court of Appeals


resorted to the following reasoning in rejecting the lower court’s assertion that dismissal was too harsh a sanction for failure to file a timely report: It is not the task of the Judiciary to re-write the Statute and devise a statutory procedure for the imposi- tion of a statutory remedy. Even if the legislatively-imposed sanction were harsh, it is not for the courts to read into the Statute the element of prejudice. ‘We cannot assume authority to read into the [Statute] what the Legislature apparently deliberately left out. Judicial con- struction should only be resorted to when an ambiguity exists. There- fore, the strongly preferred norm of statutory interpretation is to effectuate the plain language of the statutory text.’


Fall 2007


Trial Reporter


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