Complying with Walzer (Continued from page 10)
unclear from the Statute exactly what the expert report should contain.” 395 Md. at 582, 911 A.2d at 438. Nevertheless, the court stated that “common sense dictates that the Legislature would not require two documents that assert the same information.” Id. at 582-83, 911 A.2d at 438. In other words, the expert report cannot be a “mirror image” of the certificate of qualified expert. The court stated: “[I]t is clear from the language of the Statute that the certificate required of the plaintiff is merely an assertion that the physician failed to meet the standard of care and that such failure was the proximate cause of the patient- plaintiff ’s complaints. … It therefore follows that the attesting expert report must explain how or why the physician failed or did not fail to meet the standard of care and include some details support- ing the certificate of qualified expert.” Id. at 583, 911 A.2d at 438 (emphasis sup- plied). The court elaborated, by stating that “the expert report should contain at least some additional information
and should supplement the Certificate. Requiring an attesting expert to provide details, explaining how or why the de- fendant doctor allegedly departed from the standards of care, will help weed out non-meritorious claims and assist the plaintiff or defendant in evaluating the merit of the health claim or defense, depending on the circumstances.” Id. at 583, 911 A.2d at 438-39. It is clear that the court in Walzer re-
jected the use of bald, boilerplate expert reports, which generally either mirror the certificate of qualified expert, or generally assert, without any support- ing details, that the health care provider departed from the applicable standards of care. It is also clear that the court does not envision comprehensive or exhaus- tive reports under the statute. This is supported by the language in the court’s opinion that the expert report contain “some additional information.”1
It also 1
The court quoted Webster’s II New College Dictionary for its definition of “report.” 395 Md. at 583, 911 A.2d at 438. Webster’s defines “some” as “being one, a part, or an unspecified number of something (as a class or group).”
is consistent with the legislative intent to weed out non-meritorious claims, and recognizes that an exhaustive report is not necessarily feasible before meaning- ful discovery has occurred. An example of a certificate of qualified
expert, and attached report, used by my office is attached. These types of certifi- cates and attached reports would seem to be in full compliance with Walzer. They provide “some additional information” and explain how or why the health care provider departed from the standard of care, without purporting to be an exhaustive report.
Time for Filing Expert Certificates and Reports
Generally The medical malpractice statute re-
quires that the certificate of qualified expert be filed with the Director “within 90 days from the date of the complaint.” Md. Cts. & Jud. Proc. Code Ann. § 3-2A- 04(b)(1)(i) (2006). “In general, the Statute mandates that
the HCAO dismiss, without prejudice, any claim where the plaintiff fails to file an expert’s certificate within 90 days, § 3-2A-04(b)(1)(i), unless the plaintiff obtains one of three statutory extensions of the time to file an expert’s certificate: § 3-2A-04(b)(5), § 3-2A-05(j), and § 3-2A-04(b)(1)(ii).” McCready Memorial Hospital v. Hauser, 330 Md. 497, 501, 624 A.2d 1249, 1251 (1993) (footnotes omitted). The legislative history of the statute
demonstrates that the “automatic exten- sion” available under § 3-2A-04(b)(1)(ii) is a separate extension provision, distinct from the “good cause” extension avail- able under § 3-2A-04(b)(5).McCready, 330 Md. at 508, 624 A.2d at 1254. The court in McCready stated: “In sum, the language and structure of § 3- 2A-04(b)(1)(ii) demonstrate that the General Assembly sought to create an ex- tension provision that was independent from the ‘good cause’ extension provi- sions.” Id. at 512, 624 A.2d at 1256.
(Continued on page 14) 12 Trial Reporter Summer 2007
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