Walzer v. Osborne, 395 Md. at 584, quot- ing, Chow v. State, 393 Md. 431, 444, 903 A.2d 388 (2006). Beyond the merits of the court’s ac-


tion, the practical impact of the Walzer decision was to set plaintiffs’ and defen- dants’ medical negligence attorneys alike scrambling to determine why such “clear legislative intent” had gone undiscovered by the bar and bench for 20 years. It soon became apparent thatWalzer stood for the proposition that not only were two distinct documents now required, but the report had to expand on the certificate’s statutorily required contents. Gone were the days when plaintiffs’ and defendants’ counsel alike would simply reiterate the language of the certificate in the report. It soon also became apparent that it was to be the victims of medical negligence who would suffer the brunt of the court’s expansion of expert report requirements. UnderWalzer, a certificate of merit is insufficient if it is not ac- companied by a more expansive expert


report. Since the filing of a certificate of merit is a condition precedent to main- tenance of a medical negligence action, if the report is insufficiently expansive be- yond the certificate itself, the certificate is insufficient and plaintiff ’s action falls for failure to meet a condition precedent. Regardless of whether they had, them- selves, complied with the new retroactive rules dictated in Walzer, defendants’ attorneys began moving for dismissal, without prejudice, of course, in those cases where pre-Walzer certificates and reports had been filed and where the statute of limitations would prevent re-filing of a new case after dismissal. Thus, numerous cases were dismissed for reasons that had nothing to do with the merits of the cases themselves. Form triumphed over substance. Fortunately for the victims of medi-


cal negligence, the Maryland legislature stepped into the breach and passed Senate Bill 309 (2007 Laws of Maryland, Chapter 324, to be inserted as § 5-118


Cts. & Jud. Proc. Code Annot.), aimed specifically at redressing unjust results of the court’s interpretation of “clear legislative intent.” The text to be inserted as Cts. & Jud. Proc. Code Annot. § 5-118 states that:


(A)(1) This section does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim.


(2) This section applies only to a civil action or claim that is dis- missed once for failure to file a report in accordance with § 3-2A- 04(b)(3) of this article.


(B) If a civil action or claim is commenced by a party within the applicable period of limitations and is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the same party or parties on or before the later of:


(1) The expiration of the appli- cable period of limitations,


(2) 60 days from the date of the dismissal; or


(3) August 1, 2007, if the action or claim was dismissed on or after November 17, 2006, but before June 1, 2007.


Pre Settlement Funding • Law Firm Financial Products


2007 Laws of Maryland, Chapter 324.


The inclusion of the language of


John Friedson President


P.O. Box 1339


Rockville, Maryland 20849 (301) 984-0600 Fax: (301) 984-0719


email: john@creativefinancingsolutions.com www.creativefinancingsolutions.com


§ 5-118 (B)(3) in particular is aimed at undoing dismissals based on the Walzer court’s view of “clear legislative intent.” Undaunted, in Konits v. Carroll, the Court of Appeals once again expanded the requirements of the statute in ways that will cause dismissal of meritorious claims and will require further legislative repairs. In Carroll v. Konits, Carroll sued Dr.


Imoke and Dr. Konits in the Health Claims Alternative Dispute Resolution Office (“HCADRO”) alleging their negligence in failing to remove a che- motherapy catheter placed by Dr. Imoke and left in situ for two and one half years


28 Trial Reporter Fall 2007


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