Court Permits Medical Malpractice Case to Proceed Despite Lack of Expert Affidavit

Under Maryland Courts and Judicial Proceedings Section 3-2C-02, a Maryland medical malpractice claim “shall be dismissed … if the claimant fails to file a certificate of a qualified expert with the court.” This requirement was initially implemented to deter the filing of frivolous medical malpractice lawsuits and to ensure that meritorious claims are heard expediently. However, over time the requirement has become the focus of significant litigation as medical professionals routinely attempt to use it as a defense to any claim made against them.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing the expert-affidavit requirement. Ultimately, the court concluded that the alleged negligence of the medical professional was not “directly involved” or “proximate” to the procedure the plaintiff was undergoing. Thus, the court held that the requirement did not apply.

The Facts of the Case

According to the court’s opinion, the plaintiff was scheduled to have a hysterectomy. Before the surgery began, the defendant anesthesiologist attempted to intubate the plaintiff. However, while the defendant was in the process of intubating the plaintiff, the power went out. While the lights were out, the defendant allegedly dropped a medical tool on the plaintiff’s tooth, chipping it.

The plaintiff filed a personal injury lawsuit against the anesthesiologist, claiming that her injuries were due to his negligence. The plaintiff did not obtain an expert affidavit in support of her claim. The defendant moved to dismiss the plaintiff’s claim based on her failure to attach the expert affidavit. The trial court agreed and dismissed the plaintiff’s case. The plaintiff appealed.

The Court’s Opinion

The court held that the plaintiff did not need to obtain and attach an expert affidavit, and thus, dismissal of her case was improper. The court explained that impetus for the expert-affidavit requirement was to “deter baseless medical malpractice litigation, fast track medical malpractice cases, and encourage doctors to practice … while also respecting the injured plaintiffs right to litigate his or her case.”

Here, the court noted, the plaintiff’s claim was not one of traditional medical malpractice, but was a res ipsa loquitor claim. The court explained that under state law an inference of negligence can be drawn when “an injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto.” In these cases, the court explained, an affidavit is not required.

The court went on to hold that the plaintiff’s tooth was not “directly involved” or “proximate” to the hysterectomy, which was the reason for her being in the defendant’s care. Thus, the court explained that it was improper to dismiss the plaintiff’s case based on her failure to file an expert affidavit.

Have You Been Injured as a Result of Poor Medical Care?

If you or someone you love has recently been injured by a negligent doctor or another medical professional, contact the Maryland medical malpractice lawyers at Lebowitz & Mzhen, LLC. At Lebowitz & Mzhen, we have extensive experience handling medical malpractice cases as well as traditional negligence cases brought against medical professionals. We are acutely aware of all procedural requirements, and take every step to ensure that our clients’ cases fully comply with all aspects of the law while aggressively pursuing our clients’ claims. To learn more about how we can help you with your case, call 410-654-3600 to schedule a free consultation today.

More Blog Posts:

How Strict Liability Applies in Maryland Dog Bite Cases, Maryland Accident Law Blog, October 15, 2018.

Court Discusses Property Owner’s Non-Delegable Duty to Keep Area Safe in Recent Premises Liability Case, Maryland Accident Law Blog, November 1, 2018.

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