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Certificate of Qualified Experts


in Maryland Medical Malpractice Cases by George Tolley, III


George S. Tolley III is a partner at Dugan, Babij & Tolley, LLC, in Timonium, Maryland. He serves on the MTLA Board of Governors and is a member of the Presidents Club as an Eagle. He practices in the areas of medical malpractice and catastrophic personal injury.


With only one, narrowly limited excep- tion, parties to medical malpractice litigation in Maryland – plaintiffs and defendants alike – must file a certificate of an appropriately qualified expert (here- inafter “certificate of qualified expert” or “CQE”) in order to validate their claims or defenses.1


This article will review the


legal standards governing CQEs, includ- ing recent appellate decisions.


History of the CQE


In response to a perceived crisis in 1975 in the availability and affordability of medical malpractice liability insurance coverage, a Medical Malpractice Insurance Study Committee was formed and charged “with the task of seeking a perma- nent solution to the myriad problems of


1


A CQE is not required in cases where the lack of informed consent is the sole issue. Md. Cts. & Jud. Procs. Code Ann. § 3-2A-04(b).


medical malpractice insurance facing the physicians and patients of the State of Maryland.” Report of the Medical Mal- practice Insurance Study Comm., at 1 (Jan. 6, 1976) (emphasis added). Follow- ing the Committee’s recommendation of mandatory arbitration of all medical mal- practice claims, the General Assembly enacted the Maryland Health Care Mal- practice Claims Act, Md. Cts. & Jud. Procs. Code Ann. § 3-2A-01 et seq. (“the Act”). See, e.g., Debbas v. Nelson, 389 Md. 364, 375-80, 885 A.2d 802, 809-12 (2006) (summarizing history); Carrion v. Linzey, 342 Md. 266, 274-75, 675 A.2d 527, 530-31 (1996) (collecting citations); Attorney General v. Johnson, 282 Md. 274, 280-81, 385 A.2d 57, 61, appeal dismissed, 439 U.S. 805, 99 S. Ct. 60 (1978). Calls to repeal or modify mandatory ar- bitration followed very shortly thereafter. Report of the Joint Legislative/Executive Task Force on Medical Malpractice Insur- ance (“1985 Joint Task Force”), at 15 (Dec. 1985) (“Proposals regarding the arbitration system have taken two major forms . . . either to abolish the current


system or to modify its procedures in or- der to improve its functioning”). The 1985 Joint Task Force proposed a num- ber of reforms, including the current certification requirement, intended to im- prove the arbitration process. In subsequent years, it became increas- ingly evident that mandatory arbitration had failed utterly in its purposes — to encourage early resolution of medical malpractice claims or to reduce expenses associated with the prosecution and de- fense of such claims. More recently, the General Assembly has all but abandoned mandatory arbitration; nevertheless, the requirement that claims and defenses be certified by a qualified expert remains an essential part of medical malpractice liti- gation in Maryland: In the absence of a certificate signed by a qualified expert on behalf of the claim- ant, the case cannot proceed beyond the point at which the certificate is required, and, in the absence of a countervailing certificate on behalf of the defendant, the defendant loses the right to contest liabil- ity.


Witte v. Azarian, 369 Md. 518, 533, 801 A.2d 160, 169 (2002).2 It is generally understood that the leg-


islative purpose of the CQE is “to weed out, shortly after suit is filed, nonmeritorious medical malpractice claims.” D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645, 853 A.2d 813, 822, cert. denied, 384 Md. 158, 862 A.2d 993 (2004). Because the CQE re- quirement applies both to plaintiffs and to defendants, it is equally clear that the


(Continued on page 12)


Technically, as the Court of Special Ap- peals observed in Marousek v. Sapra, 87 Md. App. 205, 219-20, 589 A.2d 529, 535-36 (1991), if the parties jointly waive arbitration under § 3-2A-06A(a) before a complaint is filed, then the parties might avoid the CQE requirement altogether, since § 3-2A-06A does not require a CQE.


2 10 Trial Reporter Spring 2006


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