Compliance with the Court (Continued from page 22)
the certificate, which must contain certain attestations by a qualified expert, and not the report, whose content is left unspecified, to “weed out . . . nonmeritorious medical malpractice claims.” Moreover, since the certificate must provide basic information about the claim under § 3-2A-04(b) (1)(i) and since “discovery is available as to the basis of the certificate” under § 3-2A-04(b) (3), appellees were not prejudiced by the belated filing of the report. Nor do they contend otherwise.2
Osborne v. Walzer, 167 Md. App. at 467 (emphasis added). In fact, the legislative history behind
the certificate of merit and report requirements supplies much of this uncertainty. In the Report of the Joint Executive/Legislative Task Force on Medical Malpractice Insurance, Decem-
2
The court’s observation that Walzer was not claiming prejudice is of note given the Court of Appeals’ tacit reliance on prejudice to Walzer in overturning the Court of Special Appeals’ decision.
ber 1985, the Task Force adopted the concept of a certificate of merit (and of a certificate of meritorious defense) and suggested that “the certificate be made by the attorney (unless the plaintiff is proceeding pro se) with the attesting physician’s report annexed” and that “failure to file the appropriate certifi- cate shall result in the dismissal of the plaintiff ’s case or may result in a default judgment against the defendant.” Task Force Report at p. 30. Furthermore, the Task Force suggested that “discovery be available as to the basis of the certificate.” Id. Thus, the Task Force envisioned a certificate signed by the attorney and that the certificate would be supported, in part, by a report signed by a qualified expert. It appears that, to the Task Force, the certificate signed by the attorney was the key document, as to which discovery would be available, and the lack of which would result in dismissal. The logistics of taking discovery as to the basis of a certificate signed by counsel was not addressed by the Task Force and could have posed significant difficulties unless the true intent was to provide discovery as to the basis of the “annexed” expert report. Unfortunately, additional seeds of confusion were sown within the Task Force Report, which also stated
the recommendation that “both parties file a certificate of a qualified expert at- testing to a departure in the standard of care or compliance with the standard of care, as the case may be.” Task Force Report at p. 30 (emphasis added). This seeming confusion over the details of the certificate and report carried over to the legislature. Once within the sausage making process of the legislature itself, the concept of two separate documents, the primary one signed by the attorney and a subsidiary one signed by an expert, was changed in favor of a certificate signed by the expert. With the attorney’s certification having been taken out of the picture, both the certificate and the report were to be signed by the expert. While the required contents of the certificate were then dealt with in some detail in the Act, the contents of the report were never addressed. In light of this history and the em-
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Trial Reporter
phasis on the expert’s certificate, it is not surprising that the expert’s report became something of a secondary ap- pendage to the certificate in the eyes of plaintiffs’ and defendants’ attorneys alike in medical negligence litigation. For over 20 years, virtually all experienced medi- cal malpractice attorneys on both sides of the courtroom filed certificates of merit (or meritorious defense) and mir- ror image reports. This seemed a logical approach, given the existence of some detailed legislative guidance as to the content of the certificate, but none as to the content of the report. So superfluous did the report seem to some, including many preeminent plaintiffs and defense attorneys, that certificates were often filed with no report attached whatsoever. The Court of Special Appeals in Walzer did not bless this particular practice, but neither did it sanction imposition of the ultimate penalty for failure to file what many regarded as the superfluous report. The Court of Appeals granted cer-
tiorari and reversed. The court’s stated holding is quite narrow and concise. We shall hold that the language of § 3-2A-04(b) mandates that the
(Continued on page 26) Fall 2007
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