Complying with Walzer (Continued from page 14)
Timing of Request The statute fails to address when a
“good cause” extension must be made, including whether or not it must be made within 180 days after the statement of claim is filed with the Director. InMc- Cready, the court stated that the “good cause” extension provisions found in §§ 3-2A-04(b)(5) and 3-2A-05(j) “are silent as to the timing of a request.” 330 Md. at 508, 624 A.2d at 1255. The United States District Court for
the District of Maryland has held that a “good cause” extension under §§ 3-2A- 04(b)(5) and 3-2A-05(j) authorizes the Director or panel chairman to permit the filing of the certificate of quali- fied expert beyond 180 days from the date that the claim was filed. Larson v. Peninsula Regional Medical Center, 993 F. Supp. 373 (D. Md. 1998). In Larson, the claimant requested an extension of time for filing the certificate of quali- fied expert for good cause under those
statutory sections. The panel chairman granted the request. The expert’s cer- tificate was not filed until more than 180 days from the date the claim was filed. The defendant moved to dismiss, arguing that the CQE was not timely filed, citing McCready Memorial Hospital v. Hauser. The District Court rejected that argument. First, the court noted that McCready confined its holding to those situations in which an extension for filing the CQE was sought under § 3-2A-04(b)(1)(ii). 993 F. Supp. at 374. Second, the District Court concluded that a “good cause” extension of time under §§ 3-2A-04(b)(5) and 3-2A-05(j) “did not deprive the panel chairman of the power to grant the extension to file the COM [Certificate of Merit], even beyond the 180-day period recognized in McCready.” Id. The District Court con- cluded: “Nothing in § 3-2A-04(b)(5) or § 3-2A-05(j) puts a temporal limitation on the panel chairman’s power to allow a late filing for good cause shown. The fact that the COM was filed in this case beyond the 180-day period specified in
McCready is, thus, inconsequential.” Id. See also Estate of Alcalde v. Deaton Spe- cialty Hospital Home, Inc., 133 F. Supp. 2d 702, 712 n. 12 (D. Md. 2001) (trial court rejected defendants’ contention that it should ignore CQE filed late, where late filing was due to expert’s personal battle with cancer). The United States District Court for the
District of Maryland also has held that a late filed expert report may supplement a timely filed certificate of qualified expert, even when the expert’s report was filed after the claim was waived out of arbitration and was pending in court. Webster v. Simmonds, 2005 W.L. 14886 (D. Md. 2005). InWebster, the plaintiffs filed their Statement of Claim in the Health Claims Arbitration Office, together with a document entitled “Cer- tificate of Merit and Report of Expert.” The document generally stated that the health care providers departed from the applicable standard of care and caused the claimants’ injuries. The plaintiffs then elected to waive arbitration and file a complaint in the United States District Court for the District of Maryland. The defendants moved to dismiss, contending that the plaintiffs failed to file a valid certificate of qualified expert, citing D’Angelo v. St. Agnes Healthcare, Inc. After the motion to dismiss was filed, the plaintiffs filed a “Line” with the HCAO, submitting a “Supplemental Report” of their expert, consisting of two letters from the expert to plaintiffs’ counsel. In those letters, the expert identified the various health care providers by name, and stated that their deviations from the standard of care were the proximate cause of medical injuries. In its decision, the United States
District Court first concluded that the CQE properly identified the health care providers because it incorporated by reference the defendants named in the complaint. In addition, the court de- clined to dismiss due to the absence of a separate report at the time the CQE was filed with the HCAO. The court stated that the experts’ letters, which were filed with the HCAO, constituted a report, “thus fulfilling the requirement, albeit a little late.” 2005 W.L. 14886, p. 4. The plaintiffs contended that the court could
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