E-Alert Case Updates

In Medical Malpractice Case, Plaintiff’s Certificate of Qualified Expert and Report Were Legally Sufficient, and Thus, Trial Court Erred by Dismissing Complaint

Powell v. Wurm
No. 0782 (Maryland Court of Special Appeals, January 29, 2015)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2015/0782s13.pdf

In Powell v. Wurm, Slip Op., No. 0782 (Maryland Court of Special Appeals, Jan. 29, 2015), the Court examined the sufficiency of the medical malpractice Plaintiff’s certificate and report of qualified expert, which is a threshold requirement connected with filing a medical malpractice action under the Maryland Health Care Malpractice Claims Act. See MD. CODE ANN., CTS. & JUD. PROC. § 3-2A-04(b)(1)(i), (3)(i). The trial court determined that the Plaintiff’s certificate and report were insufficient, and dismissed the case. The appellate court reversed and remanded the case.

Factually, the Plaintiff (which was the Estate of the decedent) filed a medical malpractice action against a radiologist who had performed an inferior vena cava filter placement procedure on the decedent to treat a chronic pulmonary embolism. During the course of the medical procedure, the filter perforated the wall to the decedent’s inferior vena. The decedent underwent an additional surgery to repair the damage to her inferior vena cava. She died approximately one (1) year later. It was not alleged that her death was a consequence of the medical procedure. Because of her death, however, the Estate advanced the medical malpractice claim three (3) years after the date of the procedure.

The Estate filed with the malpractice claim in the mandatory arbitration forum a “certificate of qualified expert” signed by an expert radiologist, along with the expert radiologist’s report. Thereafter, the Estate waived arbitration and filed the Complaint against the radiologist in the Circuit Court, which also included the qualified expert certificate and report. The certificate stated that it was the expert radiologist’s opinion to a reasonable degree of medical probability that the Defendant departed from the standard of care and that such departure was the proximate cause of decedent’s alleged injuries, with the specific departures being set forth in the report. In the report, the expert opined: “In my opinion, [radiologist] violated the applicable standards of care in the placement of an inferior vena cava filter in that he failed to exercise appropriate care and technique and thereby perforated the wall of the inferior vena cava and deposited the filter in an extravascular location, thus necessitating the subsequent surgery to remove the filter and repair the caval laceration.”

The Defendant moved to dismiss the Complaint on the grounds that the Estate’s medical expert report was legally insufficient under Walzer v. Osborne, 395 Md. 563, 582 (2006), which requires that an “attesting report must explain how or why the physician failed . . . to meet the standard of care and include some details supporting the certificate of qualified expert.” (Emphasis added). According to the Defendant, because the expert’s report “merely restate[d]” the allegations in his certificate and provided no additional details, the Estate’s expert report was inadequate and the Estate’s medical malpractice claim must be dismissed.

The Estate opposed the Motion to Dismiss, by asserting that discovery would be necessary to determine precisely which actions or inactions had led to the perforation, and the Estate also attached a “revised opinion letter” from its expert explaining that the Defendant had failed to meet the standard of care by either failing to use a guidewire; using an improper guidewire; or, by not injecting contrast to confirm the position of the filter. Because the revised expert opinion was filed after the 180-day statutory period for filing a certificate of qualified expert with attesting expert report attached, the Estate requested that the trial court grant it an extension of time to file its certificate of a qualified expert so that the original expert report could be supplemented with the revised opinion letter. Without expressly discussing the revised report or request for extension of time, the circuit court dismissed the action, concluding that because the expert’s report did not state “how” or “why” the Defendant failed to meet the standard of care and did not contain any supplemental information or details to support the certificate, the Estate had failed to comply with the substantive requirements of Walzer and was therefore legally insufficient. The insufficiency of the report, in turn, rendered the certificate “incomplete,” and thus, the circuit court dismissed the case. The Estate appealed to Maryland’s intermediate appellate court.

The intermediate appellate court observed that the language of the Maryland Health Care Malpractice Claims Act (the Act) itself only stated that the expert report must be “attached” to the Plaintiff’s qualified expert certificate, but does not provide any indication of what the report of the attesting expert must contain. Because of the “imprecision” of the report requirement in the statute, the Maryland appellate courts have further explained this requirement in a series of opinions, including Walzer. The report of the attesting expert “must state what the applicable standard of care is and provide some information as to how or why the defendant physician had not met that standard.” An expert report is compliant if it “contain[s] ‘at least some additional information’ and provide[s] details ‘explaining how or why the defendant doctor allegedly departed from the standards of care.’” Here, the Estate’s expert report “did just that” since it contained “additional information” which was not contained in the expert’s certificate, and therefore was not merely a “duplicat[ion]” of the certificate, as the Defendant suggested. Because the report was legally sufficient, the circuit court erred in dismissing the Estate’s claim on the basis of an insufficient certificate of qualified expert. The Court also stated that even if it had concluded that the expert report alone was informationally insufficient, that the report and the certificate together contained sufficient information to satisfy the requirements of the Act, and so even under those circumstances, the Estate’s expert certificate and report were sufficient as well.