Inside District Court
that “[a] party who receives a notice under paragraph (1) of this subsection and intends to introduce another writing or record of a health care provider without a health care provider’s testimony” may serve a § 10-104 notice on the court and a § 10- 104 packet on all other parties. § 10-104 (c) (2). Te procedure to be followed by the defendant is the same as the plaintiff, with the exception that the rebuttal § 10-104 must be filed at least 30 days before trial, as opposed to the 60 days required of the plaintiff. Te shortened timeframe may only be used by a party who has already been served with a § 10-104 packet. Whereas the plaintiff’s § 10-104 packet will contain
jury prayer by the defendant, the § 10-104 notice will be transmitted as well. Tere is no requirement upon a jury prayer by the defendant that the plaintiff refile any pleading. Once a plaintiff’s action has been transferred from the
District Court to the Circuit Court, she may proceed under § 10-104, or she may increase her ad damnum over $30,000.00 and abandon the statutory shortcut. Some plaintiffs’ attorneys, in an attempt to bolster their settlement positions, amend their Complaints to increase the ad damnum, only to reduce the ad damnum later for trial and to permit the use of the previously filed and served § 10-104 packet. If one is to use such a strategy, then I would recommend caution; this strategy requires the attorney to name experts and to pay particularly close attention to both Maryland Rule 2-341 governing the amendment of pleadings, and any applicable scheduling order. Failure to pay close attention to these dates could lead to a situation where the use of § 10-104 is foreclosed, requiring the use of an expert. Tis may not be cost effective in many cases.
Defendants’ Rebuttal § 10-104 Packets Once you have served the defendant with the Complaint,
Summons, and § 10-104 packet, the defendant has the option to submit its own, rebuttal, § 10-104 packet. Te statute states
36 Trial Reporter / Summer 2012
medical records relating to the plaintiff’s claim, and may also contain a written opinion from a doctor, the rebuttal is different. Oftentimes, the rebuttal § 10-104 packet will contain a peer review from a medical provider of the defendant’s choosing, which will provide adverse opinions regarding causation of injuries, fairness and reasonableness of medical costs, or alternate diagnoses. Te other common use of the rebuttal § 10-104 packet is to introduce into evidence prior or contradictory medical records. While these additional records may be admissible, you should investigate how the records were obtained and whether it was done in a HIPAA compliant manner. Common sources for these prior or contradictory medical records include prior records from a claim with the same insurer, from the Maryland Workers’ Compensation Commission website, and by subpoena. Remember that there are no subpoenas duces tecum in the District Court; all subpoenas issued by the District Court are trial subpoenas and the defense attorney cannot serve a subpoena on a medical provider with an instruction that the records be provided to her office. If the records provided in the rebuttal § 10-104 packet were not properly obtained, then you have grounds to object to its admissibility. Once the defendant has filed a rebuttal § 10-104 notice
and served a rebuttal § 10-104 packet, you may have an opportunity to reply.
If there is time, you can have your
plaintiff ’s provider address the defendant’s § 10-104 packet, and file a second § 10-104 packet. Tere is no limit in the statute as to how many § 10-104 notices you may file. Te plaintiff must, however, note the time requirement, because the 30 day filing period under § 10-104 (c) (2) does not apply to a reply to a reply. Because § 10-104 (c) (2) only applies to a party who has received a notice under § 10-104 (c) (1), any reply by the plaintiff to a rebuttal also falls under § 10-104 (c) (1), and must be filed and served at least 60 days prior to trial. A plaintiff wishing to file a reply may require a postponement of a trial date to meet the 60 day filing requirement. Te plaintiff ’s bar can take a lesson from the defense bar in its use of § 10-104. Tere is no reason why the plaintiff should be limited to filing only records and bills in her § 10-
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