Md. LEXIS at 7. The director granted Carroll’s request and, shortly thereafter, she filed an amended certificate. The amended certificate referenced compli- cations from the catheter being in place “too long” and contained the following additional paragraph: It is my professional opinion that Mrs. Carroll sustained injury sec- ondary to below standard of care received in regards to removal of the Hickman catheter after chemo- therapy. Please be advised that I do not devote more than 20 percent of my annual time to activities that directly involve personal injury claims.
Carroll v. Konits, 2007 Md. LEXIS at 8. After waiver to the Circuit Court for Baltimore City, defendants renewed their motion to dismiss. The motion was granted and appeal taken to the Court of Special Appeals. On its own motion, the Court of Appeals granted certiorari. Like the holding in Walzer, the Court
of Appeals’ actual holding in Konits is relatively narrow.
We hold that a Certificate is a condition precedent and, at a minimum, must identify with spec- ificity, the defendant(s) (licensed professional(s)) against whom the claims are brought, include a statement that the defendant(s) breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff ’s injuries.
Carroll v. Konits, 2007 Md. LEXIS at 2-3. Unfortunately, as inWalzer, the language of the court’s opinion is considerably broader that the holding and likely to be seized upon by enterprising defense lawyers seeking to secure dismissal of cases without a trial on the merits. In Konits, the court’s opinion strayed
far beyond the confines of its holding, and, in fact, even beyond the expan- sive reasoning of the Walzer decision. Whereas in Walzer, the court concluded that a certificate of merit is not complete without an appending report containing “at least some additional information”
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supplementing the certificate, in Konits, the court’s dicta suggests that this ad- ditional information must be included in the certificate itself. In this regard, the Konits opinion could be seen as a judicial attempt to evade SB 309, passed by the legislature to deal with theWalzer opinion. The court makes note of SB 309 in a footnote, but states that the “issues now being presented in the case sub judice are not affected by this new stat- ute.” Carroll v. Konits, 2007 Md. LEXIS at 28-30, n.15. In fact, although the court makes mention interchangeably of a “certificate,” “report,” “certificate and report” and “documentation,” no where in the opinion are the contents of the report specifically described. The opinion states that “Dr. Konits avers that ‘[t]he facial deficiencies of [Dr. Simmons-Clemmons’s] letter/certificate are only exacerbated by the failure of [Carroll] to file an expert report from the certifying doctor as mandated by [§] 3-2A-04(b)(3) . . . .’” Carroll v. Konits, 2007 Md. LEXIS at 33. Therefore, with- out the court’s expansion of Walzer as discussed below, Carroll’s case arguably should have been dismissed for failure to file a report and saved by SB 309.3 In three separate locations in the
opinion, the court states its holding that a certificate must contain the expert’s affirmation that the defendant health care provider departed from the stan- dards of care and the departures from the standard of care were the proximate cause of the injuries claimed. Carroll v. Konits, 2007 Md. LEXIS at 2-3, 43 and 55. Unfortunately, the court did not confine itself to this statement of clearly understood and settled law. Rather, in dicta, the court at least suggested that the certificate should include a host of information not even mentioned by the Walzer court in its discussion of expert reports. While discussing the certificate’s failure to match the defendant health
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Interestingly, the dissent in Konits, au- thored by the author of the court’s opinion in Walzer, contends that Carroll’s single “document” served sufficiently as both certificate and report. Carroll v. Konits, 2007 Md. LEXIS at 76-77.
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