I look at every medical malpractice case that gets filed in Maryland. It is incredible to me how many lawyers wait until the last minute to file a lawsuit. In Dunham v. University of Maryland Medical Center, a bedsore case decided a few weeks ago by the Maryland Court of Special Appeals, underscores the hot water you can get in when you wait until just before the statute of limitations to bring your claim.
Facts of Dunham
Plaintiff originally sued his health care providers for medical malpractice based on failure to prevent and treat pressure sores. The case was initially filed in the Health Care Alternative Dispute Resolution Office (“HCADRO”) then transferred to Circuit Court. All medical malpractice actions in Maryland must be supported by an expert certificate that complies with certain conditions. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b) (2013 Repl. Vol.). If the expert certificate does not satisfy the requirements, the case must be dismissed unless the plaintiff obtains one of the statutory time extensions.
The certificate named the corporate defendants and not the specific individual nurses involved in the alleged negligence. The defense lawyers (Waranch & Brown, I think) argued that the expert certificate was not compliant because it only named the corporate defendants.
Dunham argued that he was still entitled to a “good cause” extension under § 3-2A-04(b)(1)(ii) of the statute because: (a) the limitations period on his claim had expired, and (b) the failure to file the certificate was not grossly negligent or intentional. However, the Circuit Court found that this exception was not applicable because without a proper expert certificate the court had no proper jurisdiction over the case. The Circuit Court dismissed the case for refiling in HCADRO.
The issue before the Court of Special Appeals (“COSA”) was whether this initial dismissal was proper. This required the COSA to re-examine the 2 substantive issues in the case: (1) was the expert certificate actually deficient; and (2) was Dunham entitled to the “good cause” extension for re-filing the certificate.
The Expert Certificate
The Court of Appeals has repeatedly held that a malpractice expert certificate must “mention explicitly the name of the licensed professional[s] who allegedly breach the standard of care.” Carroll v. Konits, 400 Md. 167, 176 (2007). It was the application of this rule that prompted the Circuit Court to hold that Dunham’s initial expert certificate was not adequate. Dunham’s expert certificate named several hospitals and described the nature of their negligent care, but no individual nurses or other professionals were actually named.
On appeal, plaintiff’s lawyers argued that naming individual health care providers is not necessary to support claims of direct, corporate negligence by hospitals (i.e., the hospital itself committed malpractice). The COSA readily dismissed this argument, however, because it found that plaintiff as not actually bringing claims for direct malpractice by the hospital defendants. Rather, Dunham was suing the hospitals for the alleged malpractice of its employees. Since the plaintiff was asserting that the standard of care was breached by employees of the hospitals, the COSA held that those specific employees had to be named in the expert certificate. The COSA agreed with the lower court’s opinion that the plaintiff’s certificate was not sufficient. Is this hypertechnical nonsense? It is. Is this hypertechnical nonsense Maryland law? It is.
The Good Cause Exception
The second issue on appeal was the lower court’s refusal to grant a “good cause” extension for re-filing an expert certificate. The “good cause” extension is set forth in the Healthcare Malpractice Claims Act:
(ii) In lieu of dismissing the claim or action, … the court shall grant an extension of no more than 90 days for filing the [expert] certificate required by this paragraph, if:
The limitations period applicable to the claim or action has expired; and
The failure to file the certificate was neither willful nor the result of gross negligence.
Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(1)(ii). Dunham contended that this exception is mandatory and must be granted when the 2 conditions are met.
The COSA agreed with plaintiff that this exception is mandatory based on the plain language of the statute as well as related case law. According to the COSA, the use of the term “shall” in the statute effectively makes the extension mandatory. The COSA held that when a plaintiff fails to file an expert certificate, the courts must grant a “good cause” extension as long as the 2 required conditions are present. Applying this rule to the instant case, the COSA found that Dunham was entitled to the extension because: (1) the limitations period had expired; and (2) his failure to file the certificate was not intentional or grossly negligent. Therefore, the COSA reversed the Circuit Court’s dismissal and remanded the case with instructions to grant Dunham the required extension.
Take-Home Message from This Case
There are times when you have to file a malpractice case in Maryland close to the statute of limitations for reasons outside of your control. It has happened to us. I have no idea what the delay was in filing this case. It could have for a very good reason. But too many medical malpractice cases are filed too close to the statute for no good reason. If all of this happened and the statute had no run, plaintiff would be free to refile his case. But when malpractice lawyers file close to the statute of limitations, they have little protection from Maryland’s arcane law governing malpractice actions.