Md. Court says expert's violation of tort reform law grounds for dismissal

By John O'Brien | Aug 16, 2007


ANNAPOLIS, Md. - In a recent medical malpractice decision, Maryland's highest court said expert witnesses need to submit proper documentation or the plaintiff's claim becomes invalid.

The Court of Appeals on July 27 dismissed the lawsuit of Mary Carroll, who alleged negligence on the part of Dr. Phillip Konits and Dr. Efem Imoke. She blamed the two for a catheter that remained in her chest long after her chemotherapy concluded.

However, the Baltimore City Circuit Court by a 5-2 vote ruled that the Certificate of Qualified Expert from Carroll's expert witness, Dr. Wanda Simmons-Clemens, violated the state's Health Care Malpractice Statute.

The majority opinion, authored by Dale Cathell, says the Court was required to dismiss the claim.

"(W)e hold that a Certificate is a condition precedent and at a minimum, must identify with specificity, the defendant(s) (licensed professional(s) against whom the claims are brought, include a statement that the named defendant(s) breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff's injuries," Cathell said.

"(B)ecause the Certificate is a condition precedent, the Circuit Court for Baltimore City correctly granted the appellees' motion to dismiss the case and, accordingly, we affirm the judgment of the Circuit Court for Baltimore City."

Imoke performed a unilateral mastectomy of Carroll's left breast in 2001, then referred her to Konits for chemotherapy without scheduling the removal of the catheter. Carroll says she was unaware of the catheter.

She completed chemotherapy in April 2002, and the catheter was not removed March 2003. As a result, Carroll says she suffered pain and discomfort, a deep vein thrombosis and chronic venous stasis of the right arm with chronic lymph edema.

After waiving arbitration, Carroll filed the suit, which was then dismissed.

The opinion discussed the 1986 amendment regarding expert witnesses to the Health Care Malpractice Statute of 1976, designed by the state's Legislature to curb frivolous claims.

On the issue of whether the Certificate is a must in bringing suit, Cathell wrote, "In McCready, we stated that the Statute requires arbitration prior to pursuing a claim in the circuit court and then said: 'A claimant's filing of an expert's certificate is an indispensable step in the . . . arbitration process.'"

Chief Justice Robert Bell and Justice Clayton Greene dissented, but did not offer opinions.

The Court made good use of its decision three days later, issuing an order in Jason Barber's case against Catholic Health Initiatives.

Barber, acting as the personal representative of Carolyn Barber, sued Catholic Health but used a Certificate of Qualified Expert that did not conform to the statute.

Thus, the Court of Appeals vacated the April decision of Court of Special Appeals, which reinstated the case after it was dismissed. The case was remanded to the Court of Special Appeals for further consideration.

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