Maryland’s legislative branch has created law that guides the medical malpractice lawsuits. The statutory law is located in the Maryland Code, Courts & Judicial Proceedings Article, title 3, subtitle 2A. These rules are interpreted by Maryland courts.
This is a brief summary of the Code sections pertaining to medical malpractice lawsuits in Maryland (all references are to MD Code, Cts.&Jud. Proc. unless otherwise stated). Keep in mind that Maryland case law has interpreted many of these provisions, and those interpretations are part of the current requirements for medical malpractice lawsuits.
§3-2A-01: Definitions
Some of the key defined terms are:
- Health care provider: includes hospitals, medical day care center, hospice programs, assisted living programs, freestanding ambulatory care facilities (includes things like dialysis centers and surgical facilities), physicians, osteopaths, optometrists, chiropractors, registered/licensed practical nurses (RN’s and LPN’s), dentists, podiatrists, psychologists, licensed certified clinical social workers and physical therapists.
- Noneconomic damages:
–Generally, includes pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium (injuries to spouse and marital unit) and other non-monetary damages.
–For wrongful death cases, includes mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, education and other non-monetary damages.
§3-2A-02: Procedures; standard of care
Establishes that claims against “health care providers” must follow these rules. Also requires that claims for medical malpractice may not state an amount of damages, but may only say that the damages the claimant seeks are “more than the required jurisdictional amount.”
This subtitle describes the standard that health care providers are held to—they must act in accordance with the standards of practice of members in the same profession with similar training and experience in the same or similar communities at the time of the treatment. There is some question as to whether Maryland law sets a “locality standard” of care. Many lawyers believe that Maryland does not follow a “national standard of care” but requires reasonable care under the circumstances. Smart Maryland malpractice lawyers, however, should prepare the evidence assuming a “locality standard of care” and elicit evidence the the local and national standard of care is the same. (Practically, most health care providers are going to agree that, absent compelling circumstances like a doctor treating a patient in a very rural area with minimal medical equipment available, the standards of care are the same everywhere.)
This subtitle also describes the standard for experts who testify or sign certificates of qualified experts—they must have clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care (or the field that the defendant provided treatment) within five years of the treatment. In most cases, the expert should be board certified in the same specialties as the defendant. This section has been extensively interpreted by the courts.
§3-2A-03: Health Care Alternative Dispute Resolution Office
This subtitle establishes the Health Care Alternative Dispute Resolution Office (HCADRO) as an executive branch department, with a director appointed by the Governor with consent of the Senate. The current director is Harry Chase. The office has the power to perform arbitration of medical malpractice cases; however that power is rarely used because most claimants waive out of HCADRO. The office does provide a useful function, because it keeps records and statistics of medical malpractice cases filed in Maryland.
§3-2A-03A: Health Claims Arbitration Fund
In order to file claims with HCADRO, a $40 filing fee is required. $25 is required to respond to a claim.
§3-2A-04: Filing claim; appointment of arbitrators
This subtitle deals with service of filed claims, and also addresses the certificates of qualified experts. The parties may engage in discovery (for example, interrogatories or depositions) as to the basis of the certificates. In cases where informed consent is not the only issue, the Director will dismiss cases without prejudice to refile, if the claimant does not file a certificate of qualified expert within 90 days of the complaint. The certificate must attest that the defendant departed from the standards of care and that the departure proximately caused the plaintiff’s injury. However, the Director may grant an extension of up to 90 days if the statute of limitations (deadline to file a lawsuit) has passed, and the failure to file the certificate was not willful nor the result of gross negligence.
If the defendant disputes liability, he is required to file a certificate of qualified expert within 120 days from the date of service of the plaintiff’s certificate.
Experts who testify or sign certificates about the standard of care may not devote annually more than 20% of their professional activities to activities directly involving testimony in personal injury claims (this provision has been extensively interpreted by Maryland courts).
Finally, extensions of time to file certificates shall be granted for good cause.
§3-2A-05: Claim arbitration
This subtitle deals with the procedure of claims arbitration in HCADRO. Arbitration is seldom actually used; claimants typically waive arbitration and file in court.
§3-2A-06: Review by court
If the parties submit to arbitration, they may reject awards of any reason by filing a notice of rejection within 30 days after service of the award, or within ten days of the panel’s decision on an application for modification or correction of an award. The party may then file an action in court to nullify the award, and that case may proceed in front of a judge or jury.
§3-2A-06A: Election to waive arbitration
The parties may mutually agree to waive arbitration at any time before the hearing of a claim. If so, the claimant must file a complaint in court within 60 days after the election to waive arbitration was filed.
§3-2A-06B: Waiver of arbitration of claim with Health Care Alternative Dispute Resolution Office
Any claimant may waive arbitration at any time by filing an election to waive arbitration. Likewise, any defendant may waive arbitration any time after plaintiff files his certificate of qualified expert. Within 60 days after any election to waive arbitration was filed, the plaintiff must file a complaint and copy of the election in a court. If a case is not filed within that time, any case may be dismissed if the judge finds that prejudice resulted to the adverse party due to the delay in filing.
After an election to waive arbitration is filed, a party must file an additional certificate of qualified expert if he ads additional health care providers in the action.
§3-2A-06C: Alternative dispute resolution
This subtitle deals with a court’s ability to order alternative dispute resolution for medical malpractice cases.
§3-2A-06D: Supplemental certificates of qualified experts
Within 15 days after the close of discovery, each party must file a supplemental certificate of qualified expert. These supplemental certificates must include the expert’s basis for defining the stan
dard of care; qualifications to testify to the standard of care; and a description of what the health care provider should have done. A plaintiff’s supplemental certificate must include the injury, what the health care provider did wrong and what he should have done, and whether the breach in the standard of care caused the plaintiff’s injury. The defendant’s supplemental certificate must describe how the defendant complied with the standard of care, and state that the breach, if any, did not cause the plaintiff’s injury.
Extensions of time to file these certificates are allowed by showing good cause. In Maryland medical malpractice cases, many parties simply agree that no supplemental certificates will be required. However, fail to file these certificates may lead to dismissal without prejudice of the plaintiff’s case; or a ruling for the plaintiff on liability as to the defendant.
§3-2A-07: Payment of costs; attorney fees
If the case is arbitrated, the arbitration panel may require a party or attorney to pay costs and expenses if the suit or defense of the suit was in bad faith or without substantial justification.
§3-2A-08: Advanced payment; effect
Payments made before the arbitration or trial may not be revealed during those proceedings. However, the court and arbitration panel shall make a finding as to whether any final award should subtract payments made.
§3-2A-08A: Offer of judgment
At least 45 days before a trial, a party may serve an “offer of judgment.” If the opposing party does not accept the offer within 15 days of receiving it, and the final judgment is less favorable to the opposing party, the opposing party must pay costs incurred after the time the offer was made.
§3-2A-09: Noneconomic damages; past medical expenses; future medical expenses; future loss of earnings
This subtitle deals with caps on medical malpractice lawsuit in Maryland. To see the cap on medical malpractice damages for specific years, click here.
§3-2A-10: Method of construing subtitle
All sections except §3-2A-08A and §3-2A-09 are “procedural,” meaning that they do not change substantive rights of Marylanders. This is important in cases where the negligence happened in Maryland and the case is litigated in another state; or where the negligence happened outside of Maryland and the case is litigated in Maryland. This means that a Maryland court must apply these rules, but an out-of-state court does not have to.
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