Inside District Court


prior to filing in any forum or with any ad damnum that will limit the client’s recovery. No matter what your practice is, the client must understand that she is limiting her recovery to $30,000.00, even in Circuit Court, and even if the defendant has prayed a jury trial. Your client must understand that if you have used § 10-104, and your ad damnum is $30,000.00, and the jury awards more, the court will not allow you to amend your ad damnum to above $30,000.00. Te Court of Appeals addressed this issue and held that permitting the post-trial amendment of the ad damnum clause of a case in which medical records and bills were admitted into evidence pursuant to § 10-104, defeated the requirement that the case be limited to the then $25,000 ad damnum. James v. Butler, 378 Md. 683, 688-689 (2003). Your client must know that there is always the possibility the jury will award more than the ad damnum, and that she will not recover that money.


Are Your Medical Providers the Types of Providers Permitted to be Included in a § 10-104 Packet?


When utilizing § 10-104, the first question should be


whether your client’s medical providers are of the type included in the list provided in the statute. Tat is, can you admit the providers’ records and bill pursuant to § 10-104? Section 10- 104 is an exclusive statute, and does not include all services or practitioners that one may generally think of as medical. Specifically, § 10-104 may be used to enter into evidence bills and records of health care providers as defined in Courts & Judicial Proceedings Article, § 3-2A-01, “[a]n ambulatory surgical facility; . . . [a]n inpatient facility that is organized primarily in the rehabilitation of disabled persons, through an integrated program of medical and other service provided under competent professional supervision;


. . . [a] home


health agency . . . [a] health institution, service, or program for which a certificate of need is required under Title 19 of the Health General Article, or . . . [a] person who is . . . [either] [s]ubstantially similar to a health care provider described in items (i) through (v) of [§ 10-104 (a) (2)]; and . . . regulated by another state to provide health care services. § 10-104 (a) (2). Only those types of providers listed either specifically or


by reference to another section or statute, are included in § 10-104. Provider types not on the list are excluded from the statute and, generally, must provide live testimony regarding their services, conclusions, and billing. Common examples of those providers which may not be covered by § 10-104 include massage therapists, doctors of traditional Chinese medicine, therapists holding a MA or MS degree, and acupuncturists. Just because the State of Maryland licenses a specific group of providers, such as acupuncturists, does not mean that they


are included within the purview of § 10-104. It is important to know, as a practitioner, that although some District Court judges will permit these types of providers’ records to be admitted into evidence via § 10-104, there is no statutory basis. Also, although these types of providers may not be listed or included in § 10-104, it is unclear whether a referral from a medical doctor to an acupuncturist or similar practitioner, or if the services are provided at the medical doctor’s office or reflected in the medical doctor’s chart, will include that treatment in the purview of § 10-104. I have seen massage therapy records and acupuncturist records both admitted and excluded from a § 10-104 packets at trial. Te deciding factor has generally been whether such treatment was prescribed by a medical doctor. In addition, some defense attorneys may not object for a host or reasons, including their lack of familiarity with the actual text of § 10-104. If a plaintiff submits a § 10- 104 packet to the court and the defendant does not object, it will be admitted into evidence.


Lost Wages Te § 10-104 packet should also support your client’s


lost wage claim, if any. For example, the emergency room staff or your client’s treating provider may provide disability


Gus-Ad-MLA2_Ad Generic halfhor sm 6/15/11 3:55 PM Page 1 Continued on page 34


Don’t Let Your Trial Jury Be Your


First Focus Group! P


reparing for trial using a jury focus group can lead to a higher


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Augustus Brown, of Jury Research Services, is an experienced and confidential Jury Consultant and Focus Group Facilitator. He is a member of the AAJ’s National Focus Group Faculty, and a member of the American Society of Trial Consultants.


Don’t let your jury’s verdict be the first test of your case! Call Jury Research Services today.


Augustus Brown • Jury Research Services Serving Attorneys in Maryland, Delaware, Virginia, Pennsylvania & the District of Columbia


200 S. Main Street • Bel Air, MD 21014 JuryResearchServices@gmail.com • 410-879-2220 Trial Reporter / Summer 2012 31


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