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The Law of Medical Malpractice in Maryland:

A Survey of Basic Considerations

Maryland medical malpractice law is among the most complex legal practice areas. The statutes, case-law, and regulations governing medical malpractice law in Maryland are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Maryland exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Maryland by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Maryland medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Maryland. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Maryland.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Maryland?
-Required Elements of a Medical Malpractice Claim in Maryland
-Introduction
-The Four Basic Elements
-Duty, Breach, and Expert Witnesses
-Causation

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Maryland
-The Discovery Rule
-Introduction
-The Discovery Rule in Maryland
-Minors
-Legal Disability
-Fraud

III. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Local Government Immunity
-Good Samaritan Act
-Introduction
-Good Samaritan Act in Maryland
-Additional Immunities and Limitations on Liability

IV. Required Elements of a Medical Malpractice Complaint

V. Certificate of Merit
-Certificate of Merit Requirement
-Attesting Expert’s Report
-Qualified Expert
-Dismissal for Failure to Comply

VI. Medical Expert Witnesses
-Introduction
-Qualifying as Expert Medical Witness in Maryland
-The 20% Rule
-MC §3-2A-02(c)
-Rule 702
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony on New Scientific Principles and Discoveries
-Introduction
-Admissibility of New Scientific Principles and Discoveries in Maryland

VII. Contributory Negligence

VIII. Limitations on Non-economic Damages

IX. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Maryland

X. Apologies and Sympathetic Gestures

XI. Mandatory Arbitration

The Maryland Court System

It will be helpful to briefly discuss Maryland courts themselves before proceeding any further.  For readers who are familiar with the basic structure of the federal court system and that of other states, the structure of Maryland’s court system may be somewhat confusing at first.  The naming convention used for the various courts and their respective role within the hierarchy of the Maryland Court System is slightly different than in the federal court system and most other states.

Maryland’s highest court is the Court of Appeals (whereas, in most other states and the federal system, this court is typically called the Supreme Court).  It consists of a Chief Judge and six additional judges. Immediately below the Court of Appeals, is the Court of Special Appeals, which has intermediate appellate jurisdiction over the Circuit and Orphans’ Courts.  The Court of Special Appeals generally hears and decides cases in panels of three judges.  However, there are situations in which all 15 judges sit en banc to hear a case.

Circuit Courts generally hear more serious criminal cases, major civil cases, including juvenile and other family law cases such as divorce, custody and child support, and most cases appealed from the District Court, Orphans’ Courts, and certain administrative agencies.  Each County and the City of Baltimore has a Circuit Court.District Courts are trial level courts that most people deal with when interacting with the state’s court system.  Each County and the City of Baltimore has at least one District Court location.  Cases are argued before a judge only; there are no jury trials in District Court.Orphans’ Court is a specialized court that deals with wills, estates, and various other probate issues as well as some guardianship matters.

To help better understand the Maryland court system, a review of infographics on the court structure is instructive.

A Note on the Code of Maryland (Statutes)

The Code of Maryland(“MC”) is arranged by and organized into Articles, which are further subdivided into titles, subtitles, sections, subsections, paragraphs, sub-paragraphs, etc.  The Code of Maryland is comprised of numerous separate Articles with each pertaining to particular topics.  The primary focus of the discussions in this article is on the Courts and Judicial Proceedings Article.

The reason for this focus is because the Health Care Malpractice Claims Act is contained in that Article at Subtitle 3-2A.  As the Maryland Court of Appeals explained: “Subtitle 3-2A of the Courts and Judicial Proceedings Article governs nearly all claims brought by plaintiffs against health care providers for medical injuries alleged to have been suffered by the plaintiffs at the hands of the providers.”  Lockshin v. Semsker, 987 A.2d 18, 21 (Md. 2010).   Accordingly, all citations and references to the Code of Maryland in this article refer to the Courts and Judicial Proceedings Article, unless otherwise expressly noted.

I. Overview of Basic Principles and Concepts

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

In general, medical malpractice claims in Maryland are governed by the Health Care Malpractice Claims Act codified in MC §3-2A.  According to the Maryland Court of Appeals, the Act “establishes exclusive procedures for filing a civil action … against a health care provider.”  Carroll v. Konits, 929 A.2d 19, 26 (Md. 2007).  The Act itself provides that “[a]ll claims, suits, and actions … by a person against a health care provider for medical injury allegedly suffered by the person … are subject to and shall be governed by the provisions of this” Act.  MC §3-2A-02(a)(1).

The term ‘health care provider’ is defined broadly to include virtually anyone rendering healthcare treatment, but the term does not include “any nursing institution conducted by and for those who rely upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination.”MC §3-2A-01(f).  The term ‘medical injury’ “means injury arising or resulting from the rendering or failure to render health care.”  MC §3-2A-01(g).

One of the primary purposes of the Act is to weed out non-meritorious and frivolous medical malpractice claims.  Carroll, 929 A.2d at 25.  It was the General Assembly’s response to the perceived malpractice insurance crisis within the state in the mid-1970s.  Id.  However, the Act is not intended“to create roadblocks to the pursuit of meritorious medical malpractice claims….”  Hinebaugh v. Garrett County Memorial Hospital, 51 A.3d 673, 683 (Md. Ct. Spec. App. 2012).

Required Elements of a Medical Malpractice Claim in Maryland

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Maryland law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Maryland medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Four Basic Elements

There are four basic elements of a compensable tort claim for negligence in Maryland.Jacques v. First National Bank of Maryland, 307 Md. 527, 531(1986).  Medical malpractice claims are causes of action based on negligence, so the fundamental principles of a tort action for negligence are applicable to medical malpractice actions.  Dehn v. Edgecombe, 865 A.2d 603, 610 (Md. 2005).  The plaintiff must allege and prove facts demonstrating each of the four elements of a medical malpractice claim.  Id. at 611.

  1. Duty—the healthcare provider owed the injured patient a legal duty to observe the proper standard of care against which the defendant physician’s conduct is measured;
  1. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;
  1. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages because of the injuries.

Duty, Breach, and Expert Witnesses

The Maryland Court of Appeals made it clear that there can be no liability for negligence without a duty owed by the defendant to the plaintiff.  Jacques, 307 Md. At 532.  The Court explained that the “duty element in a negligence action is ‘an obligation to which the law will give effect and recognition to conform to a particular standard of conduct toward another.’”  Id. (internal citation omitted).  In the medical malpractice context, an action against a physician is allowed “only where there is a relationship between the doctor and patient.”  Dehn, 865 A.2d at 611.  The relationship must be “a consensual one, and when no prior relationship exists, the physician must take some action to treat the person before the physician-patient relationship can be established.”  Id.

MC §3-2A02(c)(1) sets forth the standard of care under the Act as follows:

the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

The Maryland Court of Appeals established the basis for the current standard of care in Maryland medical malpractice cases in the 1975 case Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187 (1975).  In Shilkret, the Court held: “a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstance.”  Id. at 200.  The Court explained that under the standard it had just announced “advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and facilities, together with all other relevant considerations, are to be taken into account.[1]”  Id. at 200-201.

The Court expressly eschewed “distinguishing between general practitioners and specialists in applying standards of care.”  Id.at 199.  It acknowledged that specialists may be held to greater skill and knowledge within their specialization than would be required of a general practitioner under the same circumstance, but still “one standard can be fashioned for all physicians….”  Id.

Expert medical witness testimony is generally required in medical malpractice actions in establishing the applicable standard of care, breach thereof, and causation between the alleged negligence and injury.  Rodriguez v. Clarke, 926 A.2d 736, 755 (Md. 2007). The reason an expert witness is required in most cases is because the issues involved “are matters outside the knowledge of lay people and generally call for expert testimony.”  Waldt v. University of Maryland Medical System Corporation, 181 Md. App. 217, 252 (2008).

However, there are cases “in which no expert testimony is required to establish the standard of care or its breach by the physician.”  Thomas v. Corso, 265 Md. 84, 97 (1972).  The Maryland Court of Appeals noted that there are cases that involve situations or facts within the common knowledge or experience of laymen, and as such, they are capable of recognizing or inferring negligence from the facts.  Central Cab Company, Inc. v. Clarke, 259 Md. 542, 551 (1970).  Some examples of such situations cited by the Court of Appeals include pulling the wrong tooth, amputating the wrong arm, and leaving a sponge inside a patient’s body after surgery.  Id.

Causation

According to the Maryland Court of Appeals, proximate cause “involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation.”  Peterson v. Underwood, 258 Md. 9, 16 (1970).  In order to establish proximate cause, the burden is on the plaintiff to prove by a preponderance of the evidence that it is more probable than not that the plaintiff’s injury was caused by the defendant’s negligence.  Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776, 787 (1990).

It is important to note that negligence that qualifies as a proximate cause of a plaintiff’s injury need not be the sole cause.  Atlantic Mutual Insurance Company v. Kenney, 323 Md. 116, 127 (1991).  An injury may have more than one proximate cause.  Karns v. Liquid Carbonic Corporation, 275 Md. 1, 20 (1975).  Accordingly, the causation element of a medical malpractice claim simply requires the plaintiff to prove that there is a reasonable connection between the defendant’s negligence and the injury, not that it was the sole cause.  Stickley v. Chisholm, 136 Md.App. 305, 314-315 (2001).

To satisfy the causation element, the defendant’s negligence must be both a cause in fact of the plaintiff’s injury and a legally cognizable cause.  Pittway Corporation v. Collins, 409 Md. 218, 243 (2009).  The Maryland Court of Appeals instructed that cause in fact concerns whether the defendant’s negligence actually produced the plaintiff’s injury; on the other hand, legal cause is “a policy-oriented doctrine designed to be a method for limiting liability after cause-in-fact has been established.”  Id.

The Court of Appeals explained that cause in fact is an aspect of proximate cause.  Peterson, 258 Md. at 16.  A “plaintiff may prove causation in fact through circumstantial evidence, as well as direct evidence or a mixture of the two.”  Hamilton v. Kirson, 96 A.3d 714, 730 (Md. 2014).  It is most commonly established through the use of expert witness testimony.  Peterson, 258 Md. at 17.  However, expert testimony is not always required, “and the plaintiff produces legally sufficient proof to get to the jury once he shows it is more probable than not that defendant’s act caused his injury.”  Id.

Maryland courts utilize two tests in determining whether a defendant’s negligence is a cause in fact, viz., the “but for” test and the “substantial factor” test.Peterson, 258 Md. at 16, 20.  The threshold “but for” test analyzes injury that would not have been suffered absent the defendant’s negligence.  Id. at 16.  But only where the defendant’s negligence was a “substantial factor” in bringing about the plaintiff’s injury will such conduct qualify as an injury’s cause.  Bartholomee v. Casey, 103 Md.App. 34, 56 (1994).

In cases where there is only one negligent act at issue, the “but for” test applies.  Pittway, 409 Md. at 244.  Cause in fact is established when the injury would not have occurred absent or “but for” the defendant’s negligence.  Id.  When two or more independent negligent acts bring about the plaintiff’s injury, the “substantial factor” test is used.  Id.  In this situation, cause in fact is established if it is more likely than not that the defendant’s negligence was a substantial factor in producing the plaintiff’s injury.  Id.The “substantial factor” test examines, among other things, (1) the number and effect of other factors that contributed to the harm, (2) whether the defendant’s conduct created a harmless situation unless and until other forces intervened, and (3) any lapse of time between defendant’s negligence and plaintiff’s injury.  Sindler v. Litman, 166 Md.App. 90, 114 (2005).

Once cause in fact is established, then the proximate cause analysis[2] turns to whether the defendant’s negligence constitutes a legally cognizable cause of the plaintiff’s injury. Pittway, 409 Md. at 245.  This portion of the causation inquiry requires courts to consider whether the injury suffered by the plaintiff “falls within a general field of danger that the actor should have anticipated or expected.”  Id.  The Court of Appeals has observed that “legal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct.”  Id. at 246.

[1] Similarly, in Shilkret, the Court stated that the duty, as it applies to hospitals, as follows: “[A] hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances.  As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all relevant considerations, are to be taken into account.”  Shilkret, 276 Md. at 202.

[2] A full discussion and analysis of the many nuances, principles, and tests associated with proximate cause are well beyond the scope of this article.  To begin a thorough examination of proximate cause, start by reading the Maryland Court of Appeals cases Pittway Corporation v. Collins, 409 Md. 218 (2009); The Hartford Insurance Company v. Manor Inn of Bethesda, 335 Md. 135 (1994); and Peterson v. Underwood, 258 Md. 9 (1970), together with their progeny.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Maryland

The time period in which a medical malpractice claim must be initiated is governed by the medical malpractice statute of limitations contained in MC §5-109.  The general rule is that an action must be filed within the earlier of (1) five years following the date “the injury was committed” or (2) three years following the date “the injury was discovered.” Notice that there are two key triggering events for purposes of calculating the limitations period for bringing a medical malpractice action, i.e., the date the injury was committed and the date the injury was discovered (the latter triggering event implicates the Discovery Rule which is discussed in the following Sub-Section of this article).

The five-year limitations period “serves as an outer limit on the time period in which the plaintiff may sue.”  Edmonds v. Cytology Services of Maryland, Inc., 681 A.2d 546, 552 (Md. Ct. Spec. App. 1996).  The question of when an “injury was committed” under the statute has generated a great deal of confusion and litigation since the answer to that question dictates when the five-year limitations period beings to run, which in turn determines the date upon which a plaintiff’s claim becomes time-barred.  The five-year limitations period runs “without regard to whether the injury was reasonably discoverable.”  Hill v. Fitzgerald, 304 Md. 689, 700 (1985).

The date when an injury is discovered as the date an “injury was committed” has been rejected because it would effectively turn the five-year statute of limitations into a Discovery Rule, which would render the actual three-year Discovery Rule in the statute meaningless.  Edmonds, 681 A.2d at 554-555.  Similarly, the Edmonds Court rejected the date the negligence occurred as constituting the date an “injury was committed.”  Id. at 556.  The General Assembly specifically considered language that would have made the date of the negligent act or omission as the triggering event, but that language never made it into the 1987 amendments to the statute.  Id. at 557.

The Court of Appeals defined the phrase “the injury was committed” as “the date upon which the allegedly negligent act was first coupled with harm” to create a legally cognizable wrong.Hill, 304 Md. at 696, 700.As such, in determining “whether an ‘injury’ has been ‘committed’ so as to trigger the” five-year limitations period, “the touchstone of the inquiry is whether the patient has suffered harm that is ‘legally cognizable.’”  Edmonds, 681 A.2d at 558.  After reviewing the legislative history of the five-year statute of limitations together with the key case law, the Edmonds Court defined injury for purposes of the five-year statute of limitations as follows:

In view of the foregoing authorities, we conclude that an “injury” within the meaning of C.J. §5-109(a) is not “committed” unless, as a proximate result of the wrongful act, the patient sustains damages.  Once damages are sustained, the health care provider’s wrong is actionable, or “legally cognizable,” within the meaning of Hill and Oxtoby.  As we see it, this the most reasonable interpretation of C.J. §5-109(a), given its language and the interpretive case law.  Id. at 560.

The statute of limitations is an affirmative defense, so the defendant has the burden of proving that the cause of action is time-barred by the applicable statute of limitations.  Newell v. Richards, 323 Md. 717, 725 (1991).

The application of Maryland’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can beoverwhelmingly complex and confusing for anyone other than an experienced Maryland medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Maryland attorney who specializes in medical malpractice law at the earliest possible opportunity.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the general statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Maryland

The Discovery Rule for medical malpractice claims is contained in MC §5-109(a)(2), which provides that an action must be filed within three years of “the date the injury was discovered.”  The Maryland Court of Appeals ruled that the Discovery Rule embodied in the statute reflects the state’s traditional Discovery Rule set forth in Maryland’s case law.  Piselli v. 75th Street Medical, 808 A.2d 508, 517 (Md. 2002). The Court of Appeals held that it is applicable to claims for medical malpractice in Waldman v. Rohrbaugh, 241 Md. 137, 145 (1966).

Under the Discovery Rule, the limitations period begins to run when “the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury” as well as its probable cause being the defendant’s wrongdoing.  Frederick Road v. Brown & Sturm, 756 A.2d 963, 973 (Md. 2000).  Notice that under Maryland’s formulation of the Discovery Rule, discovery of the injury alone is not sufficient to trigger the running of the three-year limitations period.  The plaintiff must also discover, or should have discovered through the exercise of due diligence, the defendant’s alleged negligence as the probable cause of the injury.  The question of whether a plaintiff’s failure to discover his or her cause of action is due to the failure to use due diligence or to the defendant’s efforts to conceal the wrongdoing is a question of fact for the jury.  O’Hara v. Kovens, 305 Md. 280, 294-295 (1986).

Minors

The statute of limitations contains special rules governing claims by minors.  If the plaintiff was under the age of 11 “at the time the injury was committed,” the statute of limitations set forth in MC 5-109(a) does not begin to apply until the plaintiff’s 11th birthday.  MC §5-109(b).  In the event the injury is to the plaintiff’s reproductive system or foreign object left inside the body, the statute of limitations set forth in MC 5-109(a) does not begin to apply until the plaintiff’s 16th birthday.MC §5-109(c).

However, the Maryland Court of Appeals held that those provisions in the statute pertaining to minors are unconstitutional.  Piselli v. 75th Street Medical, 808 A.2d 508, 526 (Md. 2002).  The Court observed “from the issuance of the Maryland Charter in 1632 to the present, it has been an established principle of Maryland law that time periods for bringing suit are tolled during infancy.”  Id. at 523.  Accordingly, the Court held that the statute of limitations governing medical malpractice actions in MC 5-109(a) begins running when the plaintiff reaches the age of 18 years.  Id. at 526.  The Piselli Court based its decision on Article 19 of the Maryland Declaration of Rights (often referred to as the Open Courts Clause) and explained:

The restrictions upon a minor’s remedy and access to the courts, contained in subsections (b), (c) and (e) of § 5-109, represent a drastic departure from a principle which has governed minors’ causes of action for more than 500 years. Until the recent enactment of these subsections, periods of limitations did not begin running against a child’s claim until the child reached the age of majority. In our view, mandating that the three and five-year limitations periods run against a minor’s tort claim from the time the minor is 11 years old, or under a few circumstances 16 years old, is an unreasonable restriction upon a child’s remedy and the child’s access to the courts.Id. at 524.

<3>Legal Disability

MC §5-201 tolls the statute of limitations with respect to a plaintiff who is a mental incompetent.  A plaintiff covered by this provision “shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.”  MC §5-201(a).MC §5-109(f) makes it clear that nothing in the medical malpractice statute of limitations limits the application of the tolling provision for mentally incompetent plaintiffs.

According to the Maryland Court of Appeals, “we made it clear that the disability at issue is not simply the lack of an ability to sue, but rather ‘the general disability of lunacy … as to the care of property and the safe-guarding of rights.’”  Buxton v. Buxton, 770 A.2d 152, 159 (Md. 2001) (quoting Funk v. Wingert, 134 Md. 523, 526 (1919)).

Fraud

MC §5-203 tolls the statute of limitations in cases of fraud.  It states: “If the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.”  MC §5-109(f) makes it clear that nothing in the medical malpractice statute of limitations limits the application of the tolling provision for fraud in MC §5-203.

The Maryland Court of Appeals observed:

Section 5-203 does not require that the defendant commit a fraud distinct from that initially committed for the purpose of keeping the plaintiff in ignorance of his or her cause of action. Instead, by its own terms, § 5-203 is made to apply in those cases where two conditions are met: (1) the plaintiff has been kept in ignorance of the cause of action by the fraud of the adverse party, and (2) the plaintiff has exercised usual or ordinary diligence for the discovery and protection of his or her rights.Frederick Road, 756 A.2d at 973.

III.  Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Maryland

Actions against the state and its employees are governed by the Maryland Tort Claims Act, which provides a limited waiver of sovereign immunity.  The Tort Claims Act is codified in MC State Government (“SG”), Title 12, Subtitle 1—Maryland Tort Claims Act.  Under the Act, the state and its units waive sovereign immunity with respect to tort actions.  MC SG §12-104(a)(1).  However, immunity has not been waived for state employees for acts or omissions within the scope of their public duties and performed without malice or gross negligence.  MC §5-522(b).  Consequently, tort actions must be brought against the state or its units, not state employees.

One important limitation is contained in the waiver statute itself, which limits liability to $400,000 “to a single claimant for injuries arising from a single incident or occurrence.”  MC SG §12-104(a)(2).  Additionally, immunity is not waived for punitive damages and interest before judgment.  MC §5-522(a).  Attorney fees for actions brought under the Act are limited to (1) 20% of any settlement or (2) 25% of any judgment.  MC SG §12-109.

The Act requires compliance with the statutory administrative process as a prerequisite to filing suit in court.  In order to institute an action under the Act, (1) the plaintiff must submit a claim to the Treasurer within one year after the injury, (2) the Treasurer denies the claim, and (3) the action is filed within three years after the cause of action arises.  MC SG §12-106(b).  The content requirements for the claim are detailed in MC SG §12-107.A claim is deemed denied if the Treasurer fails to give notice of a final decision within six months after the claim was filed.  MC SG §12-107(d).  If the claim is denied, the plaintiff may then commence an action in court.

Local Government Immunity

Actions against local governments are governed by the Local Government Tort Claims Act, which is codified atMC §5-303 to MC §5-304. The term ‘local government’ is defined broadly in MC §5-301(d).  The Local Government Tort Claims Act operates differently than the Maryland Tort Claims Act.  The Court of Special Appeals explained the difference as follows:

The LGTCA, by its own terms, contains no specific waiver of governmental immunity when a governmental entity is sued in its own capacity. Viewing the LGTCA in light of its statement of purpose, the LGTCA waives only those immunities the government could have in an action raised against its employee. The statute requires the government to assume financial responsibility for a judgment against its employee by abolishing that immunity the government may have had against responsibility for the acts of its employees. The Act, however, does not create liability on the part of the local government as a party to the suit. Khawaja v. City of Rockville, 89 Md.App. 314, 325-326 (1992).

The Act provides that “a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.”  MC §5-303(b)(1).  In addition, “[a] local government may not assert governmental or sovereign immunity to avoid the duty to defend or indemnify an employee….”  MC §5-303(b)(2).

The Act imposes limitations on the liability of a local government at $400,000 per individual claim and $800,000 per total claims “that arise from the same occurrence for damages resulting from tortious acts or omissions….”  MC §5-303(a).  Local governments are not liable for punitive damages.  MC §5-303(c)(1).

In order to bring an action against a local government, the plaintiff must file a notice of claim within one year of the injury.  MC §5-304(b)(1).  The notice must be in writing and state the time, place, and cause of the injury.  MC §5-304(b)(2)MC §5-304(c) lists where to file the notice of claim depending on the identity of the particular defendant.

Good Samaritan Act

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Act in Maryland

Maryland has enacted a Good Samaritan Act, which is codified in MC §5-603.  The Maryland Court of Appeals described it as providing “immunity to specified individuals and entities from liability for ordinary negligence that occurs in connection with assistance or medical care rendered without fee or other compensation at the scene of an emergency or in transit to a medical facility.”  TransCare Maryland, Inc.v. Murray, 64 A.3d 887, 892 (Md. 2013).

The grant of immunity from civil liability is inapplicable if the Good Samaritan’s act or omission in rendering assistance or medical care is done with gross negligence.  MC §5-603(a)(1).  For purposes of the Good Samaritan Act, gross negligence is willful and wonton misconduct constituting a wanton or reckless disregard for human life or for the rights of others.  Tatum v. Gigliotti, 80 Md.App. 559, 568 (Md. Ct. Spec. App. 1989).

The grant of civil immunity covers those individuals specified in MC §5-603(b) as follows:

  1. An individual who is licensed by Maryland to provide medical care;
  1. A member of any State, county, municipal, or volunteer fire department, ambulance and rescue squad, or law enforcement agency, the National Ski Patrol System, or a corporate fire department responding to a call outside of its corporate premises if the member meets certain enumerated requirements in the statute;
  1. A volunteer fire department or ambulance and rescue squad whose members have immunity; and
  1. A corporation when its fire department personnel are immune under subsection 2 above.

In addition, members of the general public are granted civil immunity for any act or omission in providing assistance or medical aid to a victim at the scene of any emergency if:

  1. The assistance or aid is provided in a reasonably prudent manner;
  1. The assistance or aid is provided without fee or other compensation; and
  1. The individual relinquishes care of the victim when someone who is licensed or certified by Maryland to provide medical care or services becomes available to take responsibility. MC §5-603(c).

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Code of Maryland.  However, most of the immunities and limitations on liability that medical malpractice plaintiffs may encounter while pursuing their claim are contained in Code of Maryland, Courts and Judicial Proceedings, Title 5—Limitations, Prohibited Actions, and Immunities.

IV. Required Elements of a Medical Malpractice Complaint

This discussion focuses on the requirements for a complaint in Circuit Court rather than District Court.  The reason for this focus is because the District Courts can only hear cases for claims involving less than $30,000, and most medical malpractice claims exceed that jurisdictional limit.  For readers interested in the procedures and requirements for a complaint in District Court, the rules are set forth in Maryland Court Rules, Title 3. Civil Procedure—District Court.

In general, the requirements for complaints filed in Circuit Court are set forth in Maryland Court Rules, Title 2. Civil Procedure—Circuit Court.  In Maryland Circuit Courts, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2-301.  A civil action is commenced by filing a complaint with a Circuit Court.  Rule 2-1-1(a).

Each allegation or statement in the complaint must be made in numbered paragraphs.  Rule 2-303(a).  The contents of each paragraph must be limited, as far as practicable, to a statement of a single set of circumstances.  Id.  Each cause of action must be set forth in a separately numbered count.  Id.  Each allegation or statement must be simple, concise, and direct.  Rule 2-303(b).  A complaint must contain only those statements of fact as may be necessary to show the plaintiff’s entitlement to the relief sought.  Id.  The complaint must “not include argument, unnecessary recitals of law, evidence, or documents, or any immaterial, impertinent, or scandalous matter.”  Id.

A complaint may set forth two or more statements of a claim alternatively or hypothetically.  Rule 2-303(c).  It may also state as many separate claims as the plaintiff has, regardless of consistency.  Id.  Complaints must be construed as to do substantial justice.  Rule 2-303(e).

A complaint setting forth a claim for relief must contain a clear statement of the facts necessary to constitute a cause of action and a demand for judgment for the relief sought.  Rule 2-305.  A medical malpractice complaint may not contain a statement of the amount of damages sought other than that they are more than the required jurisdictional amount.  MC §3-2A-02(b). As such, most complaints should include a general statement that the amount sought exceeds $75,000.  Rule 2-305. Finally, relief in the alternative or of several different types may be demanded.  Id.

V. Certificate of Merit

Certificate of Merit Requirement

In order to proceed with a medical malpractice claim in Maryland, the plaintiff must file a document referred to by statute as a certificate of a qualified expert[1] with the Director of the Health Care Alternative Dispute Resolution OfficeMC §3-2A-04(b)(1)(i).  The plaintiff must also serve a copy of the Certificate of Merit on all other parties to the claim or action.  MC §3-2A-04(b)(2).  The purpose of the Certificate of Merit requirement is to help weed “out non-meritorious claims.”  Breslin v. Powell, 26 A.3d 878, 896 (Md. 2011).

For most medical malpractice claims, the initial step in resolving the claim is going through the mandatory arbitration process, which commences with the filing of a claim with the Director (see Section XII of this article for discussion on the arbitration process).  MC §3-2A-04(a)(1).In turn, the Certificate of Merit must be filed with the Director within 90 days after filing the claim.  MC §3-2A-04(b)(1)(i) and Walzer v. Osborne, 911 A.2d 427, 435 (Md. 2006).Unless the only issue is lack of informed consent, a Certificate of Merit must be filed with the Director as part of the arbitration process, which is a condition precedent for commencing an action in Circuit Court.  Witte v. Azarian, 801 A.2d 160, 166 (Md. 2002).

The Maryland Court of Appeals clarified that at least three items must be filed with the Director under the statute.  The Court instructed “in order to maintain an action against a health care provider, a plaintiff is required to file a Certificate and an attesting expert’s report in addition to filing a complaint.” [emphasis in original]Carroll v. Konits, 929 A.2d 19, 26 (Md. 2007).  The three items, then, that must be filed are a (1) complaint, (2) Certificate of Merit, and (3) attesting expert’s report.

The Certificate must contain an attestation of a qualified expert to the defendant’s “departure from standards of care, and that departure from standards of care is the proximate cause of the alleged injury….”  MC §3-2A-04(b)(1)(i).  The Certificate must “mention explicitly the name of the licensed professional who allegedly breached the standard of care.”  Carroll, 929 A.2d at 36.  In addition, the Certificate must state the applicable standard of care and how the defendant departed from it.  Id. at 37.  In Carroll, the Court held:

that a Certificate is a condition precedent [to filing suit in Circuit Court] 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.  Id. at 39.

Attesting Expert’s Report

Prior to 2006, it was in dispute whether the attesting expert’s report must be attached to the Certificate of Merit or whether it is merely suggestive.  The Maryland Court of Appeals settled the matter when it held “that the attesting expert report must be attached to the certificate and that the certificate of qualified expert is not complete unless, and until, the expert report is filed as an attachment thereto.”  Walzer, 911 A.2d at 440.

The statute does not specify precisely what the expert report must contain.  As a result, the Court of Appeals filled the void by providing its determination of what the required contents of the expert report should be.  The Court distinguished the content requirements of the Certificate of Merit from the expert report as follows:

common sense dictates that the Legislature would not require two documents that assert the same information.  Furthermore, it is clear from the language of the Statute that the certificate required of the plaintiff is merely an assertion that the physician failed to meet the standard of care and that such failure was the proximate cause of the patient-plaintiff’s complaints. The certificate required of the defendant is simply that the defendant either did meet the required standard of care or, if not, that the failure was not the proximate cause of the plaintiff’s injury. It therefore follows that the attesting expert report must explain how or why the physician failed or did not fail to meet the standard of care and include some details supporting the certificate of qualified expert….

Accordingly, the expert report should contain at least some additional information and should supplement the Certificate. Requiring an attesting expert to provide details, explaining how or why the defendant doctor allegedly departed from the standards of care, will help weed out non-meritorious claims and assist the plaintiff or defendant in evaluating the merit of the health claim or defense, depending on the circumstances.Id. at 438-439.

Qualified Expert

The initial statutory threshold requirement for serving as a “qualified expert” for purposes of the Certificate of Merit is MC §3-2A-04(b)(4).It also serves as a minimum requirement for an expert witness to testify to the standard of care in a medical malpractice case in general.University of Maryland Medical System Corporation v. Waldt, 983 A.2d 112, 117 (Md. 2009).  The requirement is commonly referred to as the 20% Rule and prohibits any healthcare professional who devotes more than 20% of his or her professional time annually to activities directly involving testimony in personal injury cases from qualifying as an expert witness.

The 20% Rule serves as a mechanism to bar so-called professional experts or hired guns from providing expert witness testimony in medical malpractice cases.  Streaker v. Boushehri, 146 A.3d 605, 611 (Md. Ct. Spec. App. 2016).  The 20% Rule narrows the universe of potential expert witnesses by precluding those individuals who devote more than 20% of their professional activities annually to activities that directly involve testimony in personal injury cases.  Id.  The statute states:

A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.

The application of the 20% Rule to the facts of actual cases has generated a tremendous amount of debate and uncertainty regarding which activities constitute professional activities in general versus those that directly involve testimony in personal injury cases.  To address this situation, the Maryland Court of Appeals established a mathematical equation for use in the 20% Rule analysis.  The Court stated “we must identify those activities that ‘directly involve testimony in personal injury claims’ (the numerator) and then divide it by those activities that comprise the body of ‘professional activities’ in general (the denominator).”  Id. at 121.

The Court announced the following list of activities that directly involve testimony (the numerator):

  1. the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying;
  1. the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery;
  1. the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify; and
  1. the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony. Witte v. Azarian, 801 A.2d 160, 171 (Md. 2002).

In defining which activities constitute professional activities in general (the denominator), the Court of Appeals announced:

We hold that, for an individual’s activities to qualify as ‘professional activity,’ the activity must contribute to or advance the profession to which the individual belongs or involve the individual’s active participation in that profession.  In classifying ‘professional activities,’ a distinction must be drawn between the hours spent furthering one’s profession versus the hours spent on personal or leisurely pursuits. Waldt, 983 A.2d at 123.

Although the Court’s definition of professional activity requires the particular activity to advance or contribute to the profession or involve active participation in the profession in some way, it does not mean that professional activity is limited solely to active clinical practice.  Id. at 124.  Activities directly involving testimony in personal injury cases are themselves professional activities under the Court’s definition.  Id.Furthermore, the prospective expert witness need not be paid for the activity for it to qualify as professional activity.  Id. at 125.  For example, unpaid work for a professional journal constitutes professional activity for inclusion in the denominator calculation of the 20% Rule equation.  Id.

Dismissal for Failure to Comply

Failure to file a Certificate of Merit or filing a deficient Certificate requires that the arbitration panel or court to dismiss the claim or action without prejudice[2]Breslin, 26 A.3d at 898.  A Certificate of Merit filed without an attesting expert’s report is incomplete and therefore insufficient to satisfy the Certificate of Merit requirement. Walzer, 911 A.2d at 436.  In that case, the claim must be dismissed because a Certificate lacking an attesting expert’s report constitutes an incomplete and thus invalid Certificate.

The Court of Appeals indicated that the sanction is not “too harsh because the requirements of the filing process are clear, and, in cases where the claimants fail to adhere to the Statute, the claim will be dismissed without prejudice, allowing claimants, subject to the statute of limitations or other applicable defenses, an opportunity to begin the process anew.”  Id. at 439.

[1] According to the Maryland Court of Appeals, “[v]arious sources refer interchangeably to the document as a ‘Certificate of Merit’ or a ‘Certificate of Qualified Expert’; we shall use ‘Certificate’ here for simplicity.”  Breslin v. Powell, 26 A.3d 878 (Md. 2011) (footnote 1).  The terms ‘Certificate of Merit’ and ‘Certificate’ are used in this article.

[2]Dismissing a claim or action without prejudice means that the case may be refiled once the complaint or other deficient filing has been corrected, provided that it is not time-barred.

VI. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Qualifying as Expert Medical Witness in Maryland

The 20% Rule

The initial statutory threshold requirement for serving as a standard of care expert witness in a Maryland medical malpractice case is satisfying the so-called 20% Rule in MC §3-2A-04(b)(4)University of Maryland Medical System Corporation v. Waldt, 983 A.2d 112, 117 (Md. 2009).  The Rule prohibits any healthcare professional who devotes more than 20% of his or her professional time annually to activities directly involving testimony in personal injury cases from qualifying as an expert witness.  It applies to expert witness testimony on the standard of care for purposes of the Certificate of Merit as well as testimony in an arbitration proceeding or court case.  MC §3-2A-04(b)(4).  Accordingly, where expert testimony is required with respect to the applicable standard of care, the proposed expert witness must satisfy the 20% Rule in order to be qualified to provide testimony (see Section V, Qualified Expert Subsection of this article for full discussion of the 20% Rule).

MC §3-2A-02(c)

After satisfying the 20% Rule, the analysis for qualifying as an expert witness permitted to provide testimony is governed by MC §3-2A-02(c).The Court of Special Appeals instructed that MC §3-2A-02(c)(2)(ii) sets forth the qualifications a healthcare provider must possess to sign a Certificate of Merit or provide testimony on the standard of care element of a medical malpractice claim at a hearing or trial.  Hinebaugh v. Garrett County Memorial Hospital, 51 A.3d 673, 678 (Md. Ct. Spec. App. 2012).In order to qualify to provide testimony on the applicable standard of care or breach thereof, the statute states, in pertinent part, that a healthcare provider:

  1. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and
  1. If the defendant is board certified in a specialty, the expert must be board certified in the same or a related specialty as the defendant. However, this requirement does not apply if the defendant was providing care to the plaintiff outside of his or her specialty or if the expert taught medicine in the defendant’s specialty or a related field.

The Court of Special Appeals provided guidance on the issue of related specialties.  It stated:

fields of health care are ‘related,’ and hence board certified specialties are ‘related,’ when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case. Hinebaugh, 51 A.3d at 683.

The expert witness need not be the same kind of healthcare provider as the defendant.  Id. at 684.  In Hinebaugh, the defendants argued that a dentist could never qualify as an expert witness against a doctor because dentistry is not a field or specialty of healthcare related to medical fields or specialties of healthcare, and therefore board certification in dentistry can never constitute a related board certification for purposes of the statute.

The Court rejected both the contention that dentistry could never be a related field to medicine and that board certification in a dentistry specialization could never be related to a medical board specialty.  Id. at 684-684.When the treatment rendered “is performed by both specialists and therefore is within the overlapping expertise of two board specialty areas … the specialties are ‘related’ and opinions about the standard of care may be given by either board certified specialist.”  Id. at 686.

Rule 702

The two preceding requirements for qualifying as an expert witness are exclusive to medical malpractice cases.  Rule 702 of  the Maryland Rules, Title 5—Evidence sets forth the admissibility requirements for expert witness testimony, which specifically includes a requirement for qualifying as an expert witness in general.  The Rule states:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

The focus of this discussion is on the first factor, i.e., whether the witness is qualified as an expert by knowledge, skill, experience, training, or education.  The Maryland Court of Appeals articulated the standard for evaluating the qualifications of an expert witness under Rule 702 as follows: A prospective witness is qualified to express an expert opinion “if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience, or any combination of these factors.”  Radman v. Harold, 279 Md. 167, 169 (1977).

To qualify as an expert medical witness, an expert witness is not required to have ever performed the procedure or treatment in question or even to have observed the specific plaintiff-patient.  Roy v. Dackman, 124 A.3d 169, 180 (Md. 2015).  Questions about an expert witness’ personal experience with a particular procedure or treatment go to the weight of the expert’s testimony, not its admissibility.Id.  An expert witness can be qualified to provide opinion testimony based solely on medical literature or personal observation.  Id.  The Court of Appeals advised:

A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. The knowledge of an expert in any science or art would be extremely limited if it extended no further than inferences from happenings within his own experience.Casualty Ins. Co. v. Messenger, 29 A.2d 653, 655 (Md. 1943).

Admissibility of Expert Witness Testimony

Rule 702 governs the admissibility of expert witness testimony.  It states:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

“First and foremost under Rule 5-702, the witnesses must qualify as experts.”  CSX Transportation, Inc. v. Miller, 858 A.2d 1025, 1060 (Md. 2004).  The requirements to qualify as an expert are discussed above under the Qualifying as Expert Medical Witness in Maryland Sub-Section of this article.Once the trial court has determined the expert witness is qualified to provide testimony, the court must then continue the admissibility analysis by deciding whether the expert’s testimony is reliable by applying the second and third factors of Rule 702.

The Maryland Court of Appeals acknowledged: “No rule or set of rules could be expressed for all cases which would adequately distinguish helpful expert testimony from that which is superfluous or worse.”  Reed v. State, 391 A.2d 364, 380 (Md. 1978).  Accordingly, the trial judge has very broad discretion in making the admissibility determination.  Id.  The Court of Appeals provided the following general guidance for trial courts: “can a jury receive from this person appreciable help?” [emphasis in original]Id.

In Reed, the Court of Appeals adopted the so-called Frye test for determining the reliability of a new scientific technique or process as an integral part of the admissibility analysis (see next Sub-Section of this article for discussion on Fryetest).  Id. at 389.  The Fryetest (referred to as Frye-Reed in Maryland) is a detailed system of analysis that trial courts are required to utilize in determining the admissibility of new scientific methods, principles, applications, or discoveries.

However, the Frye-Reed test does not apply to expert opinions generally.  CSX, 858 A.2d at 1061.  It applies only “to new and novel scientific techniques that a general, as opposed to case-by-case, assessment must be made.”  Id.  A healthcare provider’s expert medical opinion regarding a routine matter that does not involve a new and novel issue is not subject to the Frye-Reed test.  Id.

The “admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous.”  Wilson v. State, 803 A.2d 1034, 1039 (Md. 2002).  The trial judge has wide latitude in making its determination.  Id.  The trial judge’s determination can be reviewed upon appeal and may be reversed if it is based upon an error of law or a finding that the trial judge clearly abused his or her discretion.  White v. State, 790 A.2d 754, 759 (Md. Ct. Spec. App. 2002).

The party seeking to introduce expert witness testimony has the burden of proving that the expert witness is qualified and that the testimony will assist the trier of fact as required under Rule 702.  Streaker v. Boushehri, 146 A.3d 605, 611 (Md. Ct. Spec. App. 2016).  That is, there is no presumption that a prospective expert witness is qualified, and the opposing party certainly does not bear the burden to disqualify a prospective expert witness.  Id.

Admissibility of Expert Testimony on New Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about new and novel scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, the overwhelming majority of states[1] follow one of two general tests that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye test, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert test requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of New Scientific Principles and Discoveries in Maryland

The admissibility of new and novel scientific principles and discoveries is governed by Rule 702 of Maryland Rules, Title 5—Evidence.  The Maryland Court of Appeals adopted the Frye test (referred to as Frye-Reed in Maryland) for determining the reliability of a new scientific principle, discovery, technique, or application as an integral part of the admissibility analysis under Rule 702. Reed v. State, 391 A.2d 364, 389 (Md. 1978).

In adopting the Frye test, the Court of Appeals advised:

Our adoption of the Frye standard does not, of course, disturb the traditional discretion of the trial judge with respect to the admissibility of expert testimony. Frye sets forth only a legal standard which governs the trial judge’s determination of a threshold issue.  Testimony based on a technique which is found to have gained “general acceptance in the scientific community” may be admitted into evidence, but only if a trial judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues. [emphasis in original]Id. at 389.

The Frye test as applied by Maryland courts is described as follows:

Expert testimony that is based on a novel scientific method also must satisfy the general acceptance test of Frye-Reed to be admissible.  Under the test, the proponent of the expert testimony must show that it is “based on a scientific method or principle that has gained general acceptance in the relevant scientific community.”  The “general acceptance” test is an assessment of the validity and reliability of a given scientific method or principle.  If the “validity and reliability of a scientific technique [or principle] [is] … broadly and generally accepted in the scientific community,” a court may take judicial notice of its reliability.  If that is not the case, “the reliability [must] be demonstrated before testimony based on the technique [or principle] can be introduced into evidence.”  In this way, Frye-Reed is “deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.”  Rochkind v. Stevenson, 145 A.3d 570, 588 (Md. Ct. Spec. App. 2016) (internal citations omitted).

Finally, the Maryland Court of Appeals observed that after a “review of our Frye-Reed history, it can be seen that our jurisprudence engages trial judges in a serious gate-keeping function, to differentiate serious science from ‘junk science.’”  Blackwell v. Wyeth, 971 A.2d 235, 245 (Md. 2009).

VII.  Contributory Negligence

Maryland follows the common law doctrine of contributory negligence.  Coleman v. Soccer Association of Columbia, 69 A.3d 1149, 1152 (Md. 2013).  The Maryland Court of Appeals first adopted the doctrine back in 1847 in Irwin v. Sprigg, 6 Gill. 200, 205 (1847), and Maryland remains only one of four states in the country that continues to follow the doctrine.  Alabama, North Carolina, and Virginia are the other states that still recognize contributory negligence as a complete defense to a tort claim[2].

The Court of Appeals described contributory negligence as “the failure to observe ordinary care for one’s own safety.  ‘It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.’”  Menish v. Polinger Company, 277 Md. 553, 559 (1976) (quoting Potts v. Armour& Co., 183 Md. 483, 490 (1944)).  The Court of Appeals added to that definition as follows:  Contributory negligence is defined as “conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.”  Craig v. Greenbelt Consumer Services, Inc., 244 Md. 95, 97 (1966).

The application of the doctrine leads to extremely harsh results for injured parties.  Under contributory negligence, a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  In that scenario, contributory negligence operates to shield the defendant from all liability for the plaintiff’s injury despite the fact the defendant was 99% at fault in causing such injury.

“Contributory negligence is a recognized defense in medical malpractice cases.”  Santoni v. Schaerf, 48 Md.App. 498, 505 (Md. Ct. Spec. App. 1981).  Contributory negligence is an affirmative defense[3], so the defendant has the burden of establishing the plaintiff’s contributory negligence.  Id.Where the defendant introduces “any evidence, however slight, legally sufficient as tending to prove negligence,” the issue of contributory negligence can go to the jury, “and the weight and value of such evidence will be left to the jury.” [emphasis in original] Fowler v. Smith, 240 Md. 240, 246-247 (1965).

However, the defendant must introduce some evidence of the plaintiff’s negligence; the jury is not permitted to merely speculate.  Plitt v. Greenberg, 242 Md. 359, 367 (1966).  Where the defendant fails to introduce any evidence of the plaintiff’s negligence, the trial court must “either instruct the jury that as a matter of law the plaintiff was not guilty of contributory negligence, or not instruct it at all as to such negligence.”  Batten v. Michel, 15 Md.App. 646, 653 (Md. Ct. Spec. App. 1972).

For contributory negligence to apply, the plaintiff’s:

negligence must be concurrent with that of the physician.  If it occurs after the physician’s negligence and merely adds to the effects, as opposed to being the cause of the patient’s problem, it will not relieve the physician from liability; it will merely serve to ‘mitigate’ or lessen the amount of damages awarded to the patient. Santoni, 48 Md.App. at 505.

As recently as 2013, the Maryland Court of Appeals reaffirmed that contributory negligence continues to be the law in Maryland.  The Court stated: “We shall hold that, although this Court has the authority to change the common law rule of contributory negligence, we decline to abrogate Maryland’s long-established common law principle of contributory negligence.”  Coleman, 69 A.3d at 1152.The Court noted that from 1966 to 1982 the Maryland General Assembly considered 21 bills regarding a change to the contributory negligence standard, yet none of the bills had been enacted.  Id. at 1155.

Furthermore, as of the date of the Coleman decision, the Assembly had not codified either contributory negligence or an alternative doctrine.  That led the Coleman Court to conclude: “For this Court to change the common law and abrogate the contributory defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s longstanding jurisprudence.”  Id. at 1158.

VIII. Limitations on Non-economic Damages

Maryland law imposes limitations in medical malpractice actions on the amount recoverable for non-economic damages.  MC §3-2A-09.  The specific amount of the limitation depends on when the cause of action upon which the damage award is based arose.  MC §3-2A-09(b)(1).  For a cause of action that arose between January 1, 2005 and December 31, 2008, inclusive, the limitation on recoverable non-economic damages is $650,000.  MC §3-2A-09(b)(1)(i).  The amount recoverable for non-economic damages increases by $15,000 per year beginning on January 1, 2009 and continues to increase by that amount each year thereafter.  MC §3-2A-09(b)(1)(ii).  Thus, the limitation amount for 2017 is $785,000.  To calculate what it will be in 2018, simply add $15,000 to that amount, and to calculate what it was in 2016, subtract $15,000 from the 2017 limitation amount and so forth for future years indefinitely (or until changed by statute) as well as past years until 2009, respectively.

It is important to note that the limitations on recoverable non-economic damages “apply in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.”  MC §3-2A-09(b)(2)(i).  Also, in the event of a jury trial, the statute prohibits the jury from being advised about the limitation on non-economic damages.  MC §3-2A-09(c)(1).  If the jury ultimately makes a damage award for non-economic damages in excess of the applicable limitation amount, the trial court must reduce the recoverable amount to conform with the limitation amount.  MC §3-2A-09(c)(2).

Another provision of which plaintiffs should be aware involves situations in which there is both a personal injury and wrongful death action.  In that scenario, MC §3-2A-09(c)(4) provides: “if the total amount awarded by the jury for non-economic damages for both actions exceeds the limitation under subsection (b) of this section, the court shall reduce the award in each action proportionately so that the total award for non-economic damages for both actions conforms to the limitation.”

The Maryland Court of Appeals held that the limitations on recoverable non-economic damages apply to all cases that arrive in Circuit Court via any of the four available routes. Lockshin v. Semsker, 987 A.2d 18, 31 (Md. 2010).  The Lockshin Court explained the four ways in which a medical malpractice case can end up in Circuit Court as follows:

A health care malpractice claim may arrive in a Maryland circuit court in four distinct ways. First, the claim may be fully arbitrated under the procedures of §3-2A-05 and require nothing more from the court than confirmation of the award. §3-2A-05. Alternatively, under §3-2A-06, the claim may proceed through the arbitration procedures of §3-2A-05, the award may be rejected by one of the parties in accordance with §3-2A-06(a), and the rejecting party may file an action in a circuit court to nullify the award and proceed to trial. §§3-2A-06(a) and (b). The third and fourth avenues into court for a health care malpractice claim are through waiver of arbitration under §§3-2A-06A or 3-2A-06B, either mutually by both sides or unilaterally by the plaintiff or any defendant, respectively, and the filing of a claim in a circuit court. Lockshin, 987 A.2d at 30 (see Section XIIof this article for discussion on Mandatory Arbitration).

After discussing each of the four avenues a case can take to Circuit Court, the Court of Appeals concluded:

We hold that … the cap on non-economic damages contained in §3-2A-09(b)applies to all health care malpractice claims, whether they are: (1) arbitrated under §3-2A-05; (2) arbitrated, but followed by a rejection of the arbitration award under §3-2A-06; or (3) waived out of arbitration under §§3-2A-06A or 3-2A-06BLockshin, 987 A.2d at 31.

MC §3-2A-01(h) defines non-economic damages as:

  1. In a claim for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury; or
  1. In a claim for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other non-economic damages authorized under Subtitle 9—Wrongful Death of Title 3—Courts of General Jurisdiction of the Code of Maryland.

[1]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[2] Footnote 3 of Coleman reads: “Comparative negligence (in one form or another) is applied in the United States overwhelmingly, with forty-six states abandoning contributory negligence in favor of comparative fault. Only four states—Alabama, Maryland, North Carolina, and Virginia—and the District of Columbia continue to apply contributory negligence in its traditional guise. 2 Dobbs, supra, § 220 at 771-72.”

[3] In general, an affirmative defense is a response in which the defendant concedes or admits the alleged behavior occurred, but the affirmative defense, if proven, negates or lessens the defendant’s liability.  With contributory negligence, it serves as a complete defense, so if established, the defendant is not liable for any damages.

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Maryland

Maryland law does not impose a general limitation on attorney fees in medical malpractice cases.  However, there are a couple of provisions that govern attorney fees in medical malpractice cases even if they do not establish a mandatory cap on how much attorneys are permitted to charge.

First, if a legal fee is in dispute, “an attorney may not charge or collect compensation for services rendered in connection with an arbitration claim unless it is approved by the arbitration panel, or by the court in the event an action to nullify a panel determination has been filed therein.”  MC §3-2A-07(b).

Additionally, attorney fees in medical malpractice cases are subject to the general requirement of reasonableness under Rule 1.5 of the Maryland Attorneys’ Rules of Professional Conduct.  The Rule states: “An attorney shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  In determining the reasonableness of a fee, the Rule states that the following factors are to be considered:

  1. the time and labor required, the novelty, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  1. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the attorney;
  1. the fee customarily charged in the locality for similar legal services;
  1. the amount involved and the results obtained;
  1. the time limitations imposed by the client or by the circumstances;
  1. the nature and length of the professional relationship with the client;
  1. the experience, reputation, and ability of the attorney or attorneys performing the services; and
  1. whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 clarifies that the eight factors listed for a reasonableness determination are not exclusive, and each of the factors may not be relevant in every case.

X. Apologies and Sympathetic Gestures

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Maryland is among the states that has enacted an “I’m Sorry” law.  It is contained in MC §10-920.  The statute shields healthcare providers who communicate benevolent gestures by making them inadmissible as evidence of liability in an action for medical malpractice.  The statute provides that “an expression of regret or apology made by or on behalf of the health care provider, including an expression of regret or apology made in writing, orally, or by conduct, is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”  Basically, apologies or expressions of regret cannot be used in court as evidence of the healthcare provider’s liability or otherwise used against the provider’s interest in the court proceeding.

However, there is an important exception to the statute.  Any admission of liability or fault communicated as part of or in addition to an apology or expression of regret is admissible as evidence of an admission of liability in court.  MC §10-920(b)(2).

XI. Mandatory Arbitration

The Maryland Court of Appeals explained the purpose of the Health Care Malpractice Claims Act[1]and the medical malpractice claims process under the Act as follows:

The General Assembly enacted the Statute in 1976 “[for] the purpose of providing … a mandatory arbitration system for all medical malpractice claims … [and] the creation of a Health Claims Arbitration Office under the Executive Department….”  Essentially, the Statute requires the submission of certain medical malpractice claims to an arbitration panel for an initial assessment before the matter can be submitted to a court of law for a final determination.  The arbitration panel is either a three-person panel consisting of an attorney, a health care provider and a lay person, or, upon agreement of the parties, an arbitrator, in place of the three-person panel.  The parties can choose to waive the arbitration requirement and take the case to court…. Walzer v. Osborne, 911 A.2d 427, 433 (Md. 2006) (internal citations omitted).

The Court of Appeals added that the legislative purpose behind passage of the arbitration requirement was to help combat the “explosive growth in medical malpractice claims and the resulting effect on health care providers’ ability to obtain malpractice insurance.”  Attorney General v. Johnson, 282 Md. 274, 278-279 (1978).  The Court noted that limiting “the filing of frivolous malpractice claims” was also a substantial purpose for the enactment of the arbitration requirement.  Witte v. Azarian, 369 Md. 518, 526 (2002).  As such, the Court of Appeals has consistently stated that “the arbitration process is a condition precedent to the filing of a claim in the Circuit Court….”  Carroll v. Konits, 929 A.2d 19, 27 (2007).

Accordingly, Maryland has a mandatory arbitration requirement for medical malpractice cases.MC §3-2A-04(a)(1)(i) states that a person “having a claim against a health care provider for damage due to a medical injury shall file the claim with the Director.”  The Director referred to in the statute is the Director of the Health Care Alternative Dispute Resolution Office established under MC §3-2A-03(a).Generally, plaintiffs must submit their claim to the Office for arbitration before they are permitted to file suit in court.

However, the parties can mutually agree to waive arbitration.MC §3-2A-06A(a). In addition,MC §3-2A-06B(a) provides arbitration “may be waived by the claimant or any defendant” and that all further proceedings are governed by MC §3-2A-06B.  The plaintiff may only waive arbitration after filing the Certification of Merit, so the intended safeguard against frivolous claims remains in place.  MC §3-2A-06B(b)(1).Furthermore, it is unlikely that the defendant would choose to waive arbitration if the defendant believes the claim is without merit or otherwise frivolous.Within 60 days after filing the election to waive arbitration, the plaintiff must file a complaint along with the waiver in the appropriate court, and failure to do so constitutes grounds for dismissal of the complaint.  MC §3-2A-06B(f).

As an integral part of the arbitration process, plaintiffs must also file a Certificate of Merit along with the claim (see Section VI of this article for discussion on the Certificate requirement).  MC §3-2A-04(b).  The Certificate must attest “to the departure from standards of care, and that the departure from the standards of care is the proximate cause of the alleged injury.”Id.

The arbitration panel is required to determine the issue of liability regarding the claim.  MC §3-2A-05(e)(1).  If the panel determines that the defendant is not liable to the plaintiff, the award shall be in favor of the defendant.  MC §3-2A-05(e)(2).  If the panel determines that the defendant is liable, the panel “shall then consider, itemize, assess, and apportion appropriate damages against one or more of the health care providers that it has found to be liable.”  MC §3-2A-05(e)(3).

The award must be itemized by category and amount for damages assessed for incurred medical expenses, rehabilitation costs, and loss of earnings, and damages for future expenses, costs, and losses must be itemized separately.MC §3-2A-05(e)(4).  The award must be delivered to the Director in writing within one year from the date all defendants have been served and within ten days after the close of the hearing.  MC §3-2A-05(g).  The Director must then provide a copy of the award to the parties within 15 days of having received it.  Id.

Any party to the claim may apply to the arbitration panel to modify or correct the award as to liability, damages, or costs.  MC §3-2A-05(h)(1).  The statute provides detailed rules and procedures governing modification requests.  Additionally, MC §3-2A-06 details the process for a court review of the award if requested.  A party may reject the award within 30 days after the date it was served upon the party.  MC §3-2A-06(a).  If none of the parties reject the award, it shall become final and binding on the parties.  MC §3-2A-05(i).

[1] For a thorough discussion of the history and legislature purpose behind enactment of the Act and major amendments thereto, see Breslin v. Powell, 26 A.3d 878, 885-891 (Md. 2011).