Expert Report Requirement In
Maryland’s Medical Malpractice Statute (Complying With Walzer v. Osborne) by Jonathan Scott Smith
Editor’s Note: Mr. Smith’s article was es- sentially completed prior to the passage of Md. Cts.& Jud. Proc. Code Ann. § 5- 118, the so-called “savings clause” passed to address issues raised for the first time in Walzer v. Osborne, 395 Md. 563, 578, 911 A.2d 427, 435 (2006). Nonetheless, Mr. Smith’s analysis of the statutes and law underlying the Walzer opinion will be found useful by Maryland litigators, particularly those who practice in the area of medical negligence. Eds.
The Mandatory Expert Report Requirement
Maryland statutory law provides that
a medical malpractice claim or action “shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate
cause of the alleged injury, within 90 days from the date of the complaint.” Md. Cts. & Jud. Proc. Code Ann. § 3- 2A-04(b)(1)(i) (2006). Furthermore, the claimant or plaintiff “shall file the appropriate certificate with a report of the attesting expert attached.” Id., § 3- 2A-04(b)(3)(i). The filing of an expert certificate is
an indispensable step in the arbitration process. Walzer v. Osborne, 395 Md. 563, 578, 911 A.2d 427, 435 (2006) (quoting McCready Memorial Hospital v. Hauser, 330 Md. 497, 512, 624 A.2d 1249, 1257 (1993)). In Walzer, the court concluded “that the General Assembly intended for the certificate of qualified expert to consist of both the certificate and the attesting expert report, rendering incomplete, and therefore insufficient, a certificate of qualified expert filed without the report attached.” Id. at 579, 911 A.2d at 436. The court reasoned that the statutory language, which states that the claimant
or plaintiff “shall” file a certificate “with a report of the attending expert attached,” evinced the legislature’s intent “that the certificate of qualified expert consist of both the certificate and the attesting ex- pert report.” Id. at 579, 911 A.2d at 436. The court inWalzer held, “based on the
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Legislature’s chosen language, that a cer- tificate of qualified expert must have an attached attesting expert report in order to complete the certification.” Id. at 580, 911 A.2d at 437. The court pointed out that “the certificate of qualified expert is an ‘indispensable step’ in the arbitration process. In addition, the “failure to file a proper certificate is tantamount to not having filed a certificate at all.”Id. at 582, 911 A.2d at 438 (quoting 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). The court concluded that the legislature “clearly intended for claims to be dismissed if the claimant failed to file a certificate of qualified expert within 90 days of filing the complaint.” 395 Md. at 578 , 911 A.2d at 435. Accordingly, the court held “that the language of § 3-2A-04(b) mandates that the certificate of qualified expert be complete, with an attesting expert report attached, and that dismissal of the claim without prejudice is the appropriate remedy when the claimant fails to attach the report in a timely manner.”Id. at 567, 911 A.2d at 429.
What Constitutes an Expert Report
Although the medical malpractice
statute refers to an expert “report,” it fails to define expressly the nature and contents of such a report. In Walzer, the court recognized that “it is arguably
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