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Lack of Certificate of Merit Leads to Dismissal Without Prejudice

Jeffery Breslin, et al. v. Ronald Powell, et al.
No. 134, September Term 2010 (Md. App. 2011)

by Lydia S. Hu, Esq., Associate
Semmes, Bowen & Semmes (

The Court of Appeals held the failure to file a Certificate of Merit in a medical malpractice action pursuant to MD. CODE ANN., CTS. & JUD. PROC. § 3-2A-02, requires dismissal with prejudice of the underlying claim, instead of a grant of summary judgment in favor of the Defendant.

The decedent was admitted to Good Samaritan Hospital in October of 2002 for a hapatorenal arterial by-pass procedure. Monford Wolf, M.D., a board-certified anesthesiologist, administered an epidural anesthesia to the decedent. Jeffery Breslin, M.D., a vascular surgeon, performed the by-pass procedure. Allegedly caused by the epidural, the decedent suffered a spinal cord injury and an epidural hematoma. As a result, the decedent was paralyzed from the waist down and ultimately died on March 8, 2004.

The personal representative of the estate filed a claim alleging Dr. Breslin deviated from the standard of care. A health claims arbitration proceeding was, held pursuant to § 3-2A-03, on July 30, 2004. The Plaintiff filed a Certificate of Merit to accompany his claim as required by the Healthcare Malpractice Claims Act. Arbitration was waived and the action was transferred to the Circuit Court of Baltimore City. The named Defendants included Dr. Wolf, the anesthesiologist, and Plaintiff later amended to include the professional associations, the hospitals, and Dr. Breslin and his professional association. A revised certificate accompanied the amended Complaint which identified Ronald Burt, M.D., a board-certified anesthesiologist as the expert. During Dr. Burt’s deposition, he was asked about his qualifications to testify about the standard of care for a vascular surgeon. He stated that he did not hold himself out as an expert in vascular surgery or general surgery. His only field of expertise was anesthesiology.

Based on the foregoing, Defendant Dr. Breslin filed a Motion to Dismiss or, in the Alternative, a Motion for Summary Judgment due to Plaintiff’s failure to comply with the Certificate of Merit requirement of § 3-2A-02. The statutory requirement mandates that an expert must be able to testify as to the departure of the standards of care, be board-certified and have clinical, consulting, or teaching experience relevant to the Defendant healthcare provider’s specialty. The Circuit Court granted summary judgment in favor of Dr. Breslin because Dr. Burt was not qualified to testify regarding the alleged breach of post-operative standard of care of Dr. Breslin.

Plaintiff filed an appeal to the Court of Special Appeals. Plaintiff argued that failure to submit a Certificate of Merit pursuant to § 3-2A-02(c)(2)(ii) should result in a dismissal without prejudice, not summary judgment in favor of the Defendant. The Court of Special Appeals reversed the trial court.

The Court of Appeals affirmed the reversal explaining that dismissal without prejudice does not undermine legislative intent. Instead, dismissal without prejudice balances the interests of a Plaintiff with a malpractice claim and preventing frivolous claims from moving forward in litigation. By requiring a dismissal without prejudice, a Plaintiff can have the opportunity to re-file, assuming the statute of limitations is not expired, if a qualified expert can later attest in a Certificate to the departure of the standard of care. Accordingly, the Court of Appeals affirmed the Court of Special Appeals’ reversal of summary judgment in favor of the Defendant with instructions that the action be dismissed without prejudice.