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E-Alert Case Updates

Federal Court Not Bound by Maryland Health Care Malpractice Claims Act Procedures

Willever v. USA
No. RWT 09cv3072 (D. Md. 2011)

by Colleen K. O’Brien, Law Clerk
Semmes, Bowen & Semmes (

The issue in this case resulted from a clash between the Maryland Health Care Malpractice Claims Act (HCMCA) and the Federal Rules of Civil Procedure. The underlying case involved a medical malpractice claim that was controlled by the HCMCA. The HCMCA establishes certain conditions precedent for filing state malpractice claims. At issue in this case was the HCMCA requirement that a defendant file a certificate of defensibility and report of a qualified expert no later than 120 days after the claimant files its certificate of merit of a qualified expert. Because the government failed to timely file the necessary expert certificate and report, the Plaintiffs moved for summary judgment against the government on the issue of liability, pursuant to the HCMCA.

The Court disagreed with the Plaintiffs, and concluded that HCMCA’s requirements concerning the defendant’s filing of an expert certificate and report directly conflicted with Federal Rules of Civil Procedure 26(a)(2), 37(c) and 55(d), which relate to a party’s obligation to provide expert discovery and consequences for failing to do so. Where there was a direct conflict, the Federal Rules controlled. The Court further held that even if the Federal Rules and HCMCA did not conflict, because the HCMCA requirement was procedural, rather than substantive, the Court would not apply it under Erie R. Co. v. Thompson, 304 U.S. 64 (1938) and Hanna v. Plumer, 380 U.S. 460 (1965) which hold that a federal court sitting in diversity will apply state substantative law and federal procedural law.

Moreover, the Court concluded that the United States’ sovereign immunity prevented it from being subject to HCMCA’s certificate requirements. Finally, the Court concluded that even if the United States was required to file an expert certificate and report under HCMCA, the Court would not exercise its discretion to sanction the government by precluding it from challenging liability. For all of those reasons, the Court denied the Plaintiffs’ motion for partial summary judgment.