Compliance with the Court of Appeals’ Edicts on Certificates of Merit and Reports in Walzer v. Osborne and Carroll v. Konits by David J. Wildberger
Riding a unicycle backward on a tightrope blindfolded On November 17, 2006, the Court
of Appeals filed its opinion in Walzer v. Osborne, 395 Md. 563, 893 A.2d 654, (2006) in which the court adopted an expansive interpretation of the leg- islative intent behind the certificate of merit requirements of Cts. & Jud. Proc. Code Annot. § 3-2A-04(b) of the Health Care Malpractice Claims Statute. So expansive was the court’s interpretation of legislative intent that it summarily jettisoned 20 years of well- settled practice; caused the dismissal of numerous meritorious cases; and moved the Maryland legislature to pass SB 309, legislation specifically intended to cor-
rect the results of the court’s holding. Undaunted by the legislature’s passage of SB 309, on July 27, 2007, the Court of Appeals filed its opinion in Carroll v. Konits, 2007 Md. LEXIS 18, in which the court adopted an even more expansive view of the legislative intent behind the certificate of merit requirements of the Health Care Malpractice Claims Statute. Unfortunately, the edicts contained in Konits, like those in Walzer, are likely to cause much unintended mischief in the world of medical negligence litiga- tion, and, tragically, could well lead to the dismissal of meritorious cases, slamming the courthouse door in the
faces of victims of health care provider negligence. The potential mischief to be wrought
by Konits can be best understood after a brief review of Walzer. There, Osborne brought suit against a dentist, Dr. Walzer, contending that Dr. Walzer provided negligent dental treatment, resulting in permanent disfigurement of Osborne’s jaw. Osborne filed a certificate of merit, but filed no report from his certify- ing expert. After waiver to the Circuit Court for Anne Arundel County, de- fense counsel filed a “Motion to Strike Respondent’s Certificate and to Dismiss, or, in the alternative, for Summary Judgment,” contending that Osborne’s certificate was fatally insufficient for lack of an accompanying expert report. In response, Osborne filed an opposition accompanied by an expert report. The report was filed beyond the time limit established by Maryland law for filing of a certificate of merit.1
The Circuit Court
for Anne Arundel County dismissed Osborne’s action without prejudice and appeal was taken to the Court of Special Appeals. Walzer v. Osborne, 395 Md. at 569. In its consideration of Osborne’s
appeal, the Court of Special Appeals embarked on what has now become a continuing appellate struggle to inter- pret the legislative intent behind the twists and turns of the Health Care Malpractice Claims Statute. Osborne v. Walzer, 167 Md. App. 460, 893 A.2d 654
(Continued on page 22) 1
Discussion of the time line[s] established by the Act for filing certificates has been well addressed elsewhere and is beyond the purview of this article.
20 Trial Reporter Fall 2007
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