Initiating a Medical Malpractice Suit: Maryland Requirements

The Maryland Court of Special Appeals provided yet another ruling from Maryland appellate courts about the nuances of malpractice law in Maryland that require a certificate of merit and other technical provisions before initiating a medical malpractice lawsuit.

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act, which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs’ medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.

Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits.

The problem is that the spirit and purpose of the statute often get destroyed during gamesmanship used by the defendant’s malpractice lawyers, looking to end-run the fairness to get a meritorious lawsuit past the legal technicalities of bringing a claim.

In the case heard by the Court of Special Appeals, the anesthesiologist plaintiff who had signed the certificate of merit was not a qualified expert to opine upon the standard of care applicable to the defendant who was a vascular surgeon. The question before the court was how to deal with this problem: summary judgment or dismissal without prejudice.

The only question before us in this appeal is whether Dr. Burt’s failure to meet the enumerated certification qualifications of CJ § 3-2A-02(c)(2)(ii) justifies the circuit court’s grant of summary judgment, or whether the circuit court, under the provisions of CJ § 3-2A-04(b)(1)(i)(1), was required to dismiss the action without prejudice.

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