Maryland Personal Injury Blog
The Maryland Court of Special Appeals recently rendered a decision in a case, Powell v. Wurm, Md. Ct. Sp. App. (2015), that arose under a medical malpractice cause of action.
The issue fell within the Maryland Health Care Malpractice Claims Act, which requires a plaintiff to file a contemporaneous statement from a qualified expert with the medical malpractice claim.
In the case, the plaintiff, as the personal representative for the estate of the decedent, filed a medical malpractice action and included a certificate of a qualified expert and the report from a medical expert retained by the estate.
The issue before the court was whether the report of the estate’s expert met the standard required by Maryland law. The trial court did not believe it did, and thus it dismissed the estate’s action.
The underlying cause of action arose from a procedure in which a radiologist inserted a filter into one of the major heart veins. During the procedure, the filter punctured the wall of the vein, and as a result, the filter was misplaced. This resulted in a subsequent surgery to remove the filter and repair the damage. The patient reportedly died a year later, and it was not alleged that the death was a result of the procedure.
Three years after the procedure, and thus two years after the patient’s death, the estate filed a medical malpractice claim with the relevant alternative dispute resolution office, alleging a failure to meet the appropriate level of care. The estate attached to its claim a certificate signed by a radiologist. The estate then waived arbitration of its claim and filed a complaint in the circuit court. The certificate that the estate submitted with its complaint stated that in the doctor’s opinion, “to a reasonable degree of medical probability,” the doctor who performed the procedure deviated “from the standards of care in connection with such medical procedure” and that “departure from the standards of care [was] the proximate cause of [the patient’s] injuries.” The report contained the doctor’s opinion regarding the specific alleged deviations from the relevant standard of care.
The expert testimony was challenged as legally insufficent. The plaintiff claimed that discovery would be necessary in order to determine the precise reason that the procedure led to perforation. The plaintiff then attached a revised opinion letter with various reasons the procedure may have failed to meet the standard of care. The revised letter was filed after the expiration of the 180-day period to file from the date the complaint was filed. The estate requested an extension from the circuit court, but its request was denied, and then the case was dismissed on the basis of the court finding the expert statement was legally insufficient.
The relevant standard under Maryland law for the statement of a qualified expert is that the statement must state that there was a departure from the standard of care, and the departure from the standard of care was the proximate cause of the plaintiff’s injury. There are no further explicit requirements.
The court then reviewed the relevant decisions dealing with similar issues and determined that the statement as attached was sufficient. It therefore reversed the circuit court decision and remanded the case for further proceedings.
If you or someone you know was injured in a medical malpractice case and has incurred medical bills and lost wages, you need to find the right medical malpractice lawyer. Make sure you are represented by a personal injury law firm that will file a lawsuit on your behalf when appropriate. Call the medical malpractice law firm of Foran & Foran, P.A. today.
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