Complying with Walzer (Continued from page 12)
Automatic Extensions Under § 3-2A-04(b)(1)(ii) [91-180 Days] Generally The basis for extensions of time for
filing expert certificates under § 3-2A- 04(b)(1)(ii) is much narrower than the “good cause” provisions under §§ 3-2A- 04(b)(5) or 3-2A-05(j). McCready, 330 Md. at 509, 624 A.2d at 1255. An exten- sion of time under § 3-2A-04(b)(1)(ii) “applies only in those instances where the initial 90-day period and the stat- ute of limitations have run and where the claimants’ failure to file an expert’s certificate was neither willful nor result of gross negligence.” Id. Section 3-2A- 04(b)(1)(ii) “provisions are less flexible than those of the ‘good cause’ provi- sions.” Id. See also Navarro-Monzo v. Washington Adventist Hospital, 380 Md. 195, 202, 844 A.2d 406, 410 (2004).
Good Cause Not Required Section 3-2A-04(b)(1)(ii) “provide[s]
some relief to certain claimants … with- out requiring them to prove ‘good cause’ under §§ 3-2A-04(b)(5) or 3-2A-05(j).” McCready, 330 Md. at 509, 624 A.2d at 1255. “In effect, the claimants may obtain a § 3-2A-04(b)(1)(ii) extension virtually automatically, without the need to first allege and prove good cause.” Id.
Request for Extension Not Required and Not Sufficient “There is no indication that the claim-
ant need formally or informally request this extension, and we conclude that the claimant need not do so. Instead, we believe the legislature intended that this extension be granted automatically in lieu of dismissal, subject to a defendant’s motion to dismiss on the grounds that the claimant’s failure to file the expert’s certificate within the first 90 days was grossly negligent or willful.”McCready, 330 Md. at 510, 624 A.2d at 1256. “To avail themselves of a subparagraph (b)(1)(ii) extension, claimants need only file their expert’s certificate within 180
14
days from the date they filed their claim with the HCAO. Upon filing an expert’s certificate within the 180-day period, claimants automatically invoke up to a 90-day extension, subject to the defen- dants’ objection via a motion to dismiss.” Id. at 512, 624 A.2d at 1256-57. A “bare request for an extension does
not toll the second 90-day time period under § 3-2A-04(b)(1)(ii). Where a claimant seeks a § 3-2A-04(b)(1)(ii) extension, it must file the expert’s cer- tificate within the second 90-day period, i.e., within 180 days from the initial filing of the claim.”McCready, 330 Md. at 513, 624 A.2d at 1257.
The Length of Extension: 91-180 Days The extension of time for filing
an expert certificate under § 3-2A- 04(b)(1)(ii) is extended only for the period between 91-180 days from the date the Statement of Claim initially was filed with the Director. The “exten- sion commences at the expiration of the first 90-day period.”McCready, 330 Md. at 510, 624 A.2d at 1256. “The term ‘ex- tension,’ in the context of this provision, indicates a tacking of an added period of time to the initial 90-day period.” Id. at 510-11, 624 A.2d at 1256. “The Leg- islature specifically provided that this additional time period shall be ‘no more than 90 days.’ This language indicates that the General Assembly intended to create a limited 90-day extension that commences immediately and automati- cally upon the expiration of the initial 90-day period.” Id. at 511, 624 A.2d at 1256. In other words, the expert’s cer- tificate must be filed no later than 180 days after the statement of claim is filed with the Director: “In contrast to the ‘good cause’ extensions under §§ 3-2A- 04(b)(5) and 3-2A-05(j), subparagraph (b)(1)(ii) gives claimants in a limited set of circumstances up to 180 days to file an expert’s certificate without the need to prove ‘good cause’.” Id.
Defendant’s Burden of Proof A claimant may automatically invoke up to a 90-day extension, subject to a
Trial Reporter
defendant’s motion to dismiss. “At the motion to dismiss hearing, the defen- dants must establish that the claimant was not entitled to a subparagraph (b)(1)(ii) extension because the claim- ant’s initial failure to file an expert’s certificate was either willful or a result of gross negligence.”McCready, 330 Md. at 512, 624 A.2d at 1257.
Good Cause Extension
Good Cause Generally Under the statute, there are two sepa-
rate provisions providing for extensions of time for good cause. For example, the statute states that an extension of the time for filing a certificate of a qualified expert “shall be granted for good cause shown.” Md. Cts. & Jud. Proc. Code Ann. § 3-2A-04(b)(5) (2006). In addition, the Director or a panel chairman, “for good cause shown, may lengthen or shorten the time limitations prescribed in … § 3-2A-04.” Id., § 3-2A-05(j). “The Statute’s ‘good cause’ extension
provisions are found in §§ 3-2A-04(b)(5) and 3-2A-05(j). These two provisions permit either the Director or a panel chair to grant an extension to file an expert’s certificate upon a showing of ‘good cause.’ To qualify for either of the ‘good cause’ extensions, the Statute requires the claimants to first dem- onstrate that ‘good cause’ exists for granting an extension.”McCready, 330 Md. at 508, 624 A.2d at 1255. See also Navarro-Monzo, 380 Md. at 203, 844 A.2d at 410-11. The court of appeals has described a good cause extension as a “malleable extension,” in comparison with the limited basis for an extension under § 3-2A-04(b)(1)(ii). McCready, 330 Md. at 509, 624 A.2d at 1255.
Request for Extension Required A “good cause” extension may only
be granted upon the claimant’s request. “[U]nlike the ‘good cause’ exceptions, claimants do not have to make a request or preliminary showing in order to ob- tain a § 3-2A-04(b)(1)(ii) extension.” McCready, 330 Md. at 509, 624 A.2d at 1255.
(Continued on page 16) Summer 2007
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