Plaintiff Nearly Loses Opportunity to Pursue Compensation Due to Late-Filed Expert Affidavit

Earlier this month, a state appellate court issued a written opinion in a medical malpractice case illustrating the importance of complying with all procedural rules in medical malpractice cases. Indeed, the point is especially important for Maryland medical malpractice plaintiffs to understand because very similar requirements apply under Maryland state law.

The Facts of the Case

The plaintiff was the parent of a child who was born with serious injuries and birth defects. The defendant was the delivering physician. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the care provided by the defendant fell below the generally accepted level of care and that this lapse was the cause of her child’s injuries.

Under state law, the plaintiff had 60 days to file an affidavit of merit from a qualified expert in the field. However, due to an admitted lapse on the plaintiff’s attorney’s part, the affidavit was not filed. The defendant filed to dismiss the case based on the plaintiff’s failure, and the court granted the defendant’s motion. The plaintiff appealed to a higher court.

The plaintiff’s argument on appeal was that the court failed to conduct a necessary hearing in which the deadline for the affidavit would have been discussed. The plaintiff also argued that the lower court’s dismissal of her case was inequitable in that the error was only her attorney’s.

The Court’s Opinion

In an unusual opinion based almost exclusively on the equities involved, the court reversed the lower court’s decision, allowing the plaintiff’s case to proceed. The court explained that normally, a lower court’s failure to conduct this specific type of hearing would not excuse a plaintiff’s non-compliance with court rules. The court also noted that attorney inadvertence is similarly not a satisfactory reason for non-compliance. However, under these facts, the court determined that the “equities militate in favor of permitting a facially meritorious action to proceed.”

The court explained that this case presents an “extraordinary circumstance” in which excusal is permitted. The court used this as an opportunity to express the need for a better docket-management system in the lower courts, in hopes of preventing this type of error in the future.

Maryland’s Affidavit Requirement

As in the case above, Maryland law requires medical malpractice plaintiffs to file an expert affidavit in support of their claim. This requirement is extremely important, since decisions like the one discussed above are rare, and more often than not a case is dismissed, completely foreclosing a plaintiff’s ability to recover damages. Anyone who believes they have been a victim of medical malpractice should reach out to discuss their case with a dedicated Maryland medical malpractice attorney as soon as possible.

Have You Been a Victim of Medical Malpractice?

If you believe that you or a loved one has recently been a victim of negligent medical treatment, you may be entitled to monetary compensation through a Maryland medical malpractice lawsuit. The dedicated Maryland medical malpractice attorneys at the law firm of Lebowitz & Mzhen Personal Injury Lawyers have extensive experience representing the victims of medical malpractice in cases against doctors, nurses, and hospitals. We provide free consultations to accident victims to help them understand their rights. Call 410-654-3600 to schedule your free consultation today.

More Blog Posts:

Court Answers Statute of Limitations Question in Recent Medical Malpractice Case, Maryland Accident Law Blog, December 22, 2017.

Court Resolves Dog Bite Case in Favor of Plaintiff, Maryland Accident Law Blog, January 2, 2018.

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