It is indeed hard to reconcile the
Konits court’s interpretation of legisla- tive intent with legislative reality. In short, if the legislature saw fit to impose certain requirements on the contents of supplemental certificates filed after discovery has been completed, how can those same requirements be reasonably imposed on the contents of certificates filed without the benefit of any discov- ery at all? And, if such details regarding specific departures from the standards of care are required in the initial certificate, why would they need to be restated after completion of discovery? Placing such a burden on plaintiff at the inception of the case is simply unreasonable and beyond the intended purpose of the certificate of merit. In addition, the court suggested that
the Act requires a certificate contain the specific words “proximate cause” to sufficiently state a causal connection between departure from standards of care and injury, regardless of what other words or phrases are used. Carroll v. Konits, 2007 Md. LEXIS at 42-45. The dissenting opinion in Konits rejected the need for specific use of the “magic words, proximate cause,” stating that “the substance of the statement is more important than the inclusion of the specific legal terminology or conclu- sion.” Carroll v. Konits, 2007 Md. LEXIS at 63-64, n.1. As the dissenting opinion further observed, the “purpose of the statute is to weed out non-meritorious claims, not to dismiss meritorious claims for frivolous reasons.” 4 Beyond its expansion of the required
contents of the certificate of merit, the Konits court created uncertainty as to the
4
The dissent in Konits essentially agreed with the majority’s stated holding regard- ing the certificate/report requirements, but took a much less restrictive view of the language of Carroll’s amended certificate. In the dissent’s view, the amended certifi- cate sufficiently stated the expert’s opinion that the “defendant-physician departed from the standards of care and that such a departure was the proximate cause of the plaintiff ’s alleged injury.” Carroll v. Konits, 2007 Md. LEXIS at 60-66.
32
meaning of the portion of its holding stating that the certificate “must iden- tify with specificity, the defendant(s) (licensed professional(s)) against whom the claims are brought . . .” Carroll v. Konits, 2007 Md. LEXIS at 2-3. There are often times, particularly in cases involving nurses, physicians’ assistants, or house officers, in which it is virtually
the statutorily mandated deadline for fil- ing a certificate.5
Although each of these
rationales would have engendered their own controversies, the point remains that the court could easily have main- tained its opinion within the bounds of its holding. So what are the requirements placed on plaintiffs in terms of the contents
As the dissenting opinion further observed, the “purpose of the statute is to weed out non-meritorious claims, not to dismiss meritorious claims for frivolous reasons.”
impossible for the plaintiff to specifically identify the negligent actor by name at the inception of the case. In such cases, the usual practice has been to name the employer, usually a hospital, and allege that the employer’s actual and apparent agents, servants and employees departed from standards of care. There is some concern under Konits that this may be insufficient “specificity.” The irony of this issue is that most hospitals would prefer that plaintiffs not name their employees, and, in fact, will often at- tempt to convince plaintiffs to dismiss individually named employees when they are named as party defendants. Within the parameters of its own
reasoning, it would have been quite easy and efficient for the court to simply con- clude that Carroll’s amended certificate failed to adequately “attest to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury” per Cts. & Jud. Proc. Code Annot. § 3- 2A-04(b)(1)(i). Alternatively, the court could have simply relied on the failure of the certificate to specifically identify any particular health care provider as an individual who departed from standards of care. Finally, the court could have found, as did the concurring opinion by Judge Harrell, that the record did not support the HCADRO director’s grant of an extension for “good cause” beyond
Trial Reporter
of certificates of merit and append- ing reports after Walzer and Konits? It certainly seems as if the Court of Appeals is providing a moving target in this re- gard. It would have been difficult, indeed, to anticipate the changing requirements announced first inWalzer, then inKonits. And where will the court go from here? In addition to what can be gleaned from the majority opinion, the dissenting opinion in Konits gives some indication of what the future may bring by addressing is- sues raised by the health care providers in Konits, but left unaddressed by the majority, i.e., whether a certificate must affirmatively address qualification issues such as the 20% rule and board certifi- cation, semantic issues such as whether the expert’s opinion must be stated (in a certificate) to a “reasonable degree of medical probability,” and stylistic issues such as whether the certificate needs to be a “formal document,” and whether a single document can suffice as both certificate and report. As to each of these issues, the dissent stated its preference to decline to read requirements into the
5
The majority opinion sidesteps this issue by concluding that the director had the authority to grant the additional extension for good cause, but declining to address the “nature of the ‘good cause’ asserted in this case.” Carroll v. Konits, 2007 Md. LEXIS at 28.
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