CQE & Report: Powell v. Wurm
This post from the Baltimore Medical Malpractice Lawyer Blog explores a crucial issue in Maryland medical malpractice cases—the relationship between the Certificate of Qualified Expert (CQE) and the report that a plaintiff must submit. The case under discussion is the reported opinion by the Court of Special Appeals in Powell v. Wurm, 221 Md. App. 223 (2015).
Factual Background on CQE & Report – Medical Malpractice
The patient suffered from chronic pulmonary emboli. She underwent placement of a filter in the inferior vena cava by the defendant radiologist. During the procedure, the filter perforated the wall of the inferior vena cava. It did not end up in the correct location. The patient needed an additional surgery to remove the filter and repair the damage. The patient died a year later. There was no wrongful death claim that the procedure caused the death. (Op. at 1-2).
The decedent’s husband filed a medical malpractice claim in the Circuit Court for Prince George’s County. He included a certificate of qualified expert (CQE) and report from a radiologist expert witness. CJP § 3-2A-04(b)(1)(i), (3)(i). The defendant moved to dismiss the case, contending that the expert’s report was insufficient. The defense argued that the report merely repeated the CQE and failed to explain how the defendant breached the standard of care, with some details supporting the CQE. (Id. at 3).
The plaintiff responded that discovery was necessary to determine what exactly caused the perforation. The circuit court granted the motion to dismiss. The plaintiff appealed. (Id. at 4-5).
Court of Special Appeals
On appeal, the plaintiff noted that the statute does not mandate the contents of the report, but only requires that it be attached to the CQE. (Id. at 5).
The CSA observed that the statute requires the CQE to state that there was a departure from standards of care that proximately caused injury. It does not state what the report should contain. (Id. at 6).
The CSA found that the plaintiff’s CQE satisfied the CQE requirements. The CSA then reviewed Maryland opinions on reports, concluding that the report must state the standard of care and provide some information on how or why the defendant failed to meet it. (Id. at 8).
The CSA found that the report satisfied the case law standard. The report specified that the applicable standards of care the defendant allegedly violated were the standards of care in the placement of an inferior vena cava filter, and then asserted that the defendant violated this standard of care by the doctor’s failure to exercise appropriate care and technique. It stated that, as a consequence of his failure to exercise proper care and technique, the doctor perforated the wall of the patient’s inferior vena cava and deposited the filter in an extravascular location, thus necessitating subsequent surgery to remove the filter and repair the caval laceration. (Id. at 8).
Further, this additional information was not in the CQE, so the report did not merely duplicate the CQE. (Id.).
Further Analysis
The CSA’s approach is straightforward: even if a report is deemed insufficient, the court will consider the CQE and report together to determine if they collectively meet the statutory requirements. This combined approach means that a report that duplicates the CQE is not necessarily invalid, as long as all the necessary information is present in the CQE.
In fact, the CSA stated that a single document can suffice as long as it provides the required information. In sum, the expert’s submission must identify the defendant physician; state that the defendant breached the applicable standard of care; opine that such a departure from the standard of care was the proximate cause of the plaintiff’s injuries; and provide some details as to what the standard of care was and how the defendant physician failed to meet it. (Id. at 11).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on CQE & Report
This reported opinion is a significant case on the interplay between CQE and reports. Defendants have repeatedly tried to assert form over substance in challenging plaintiffs’ expert submissions.
This case sets a clear precedent for Maryland courts, emphasizing the need to consider the CQE and report together when evaluating their collective compliance with the information requirements.
Despite the clarity provided by this case, plaintiff medical malpractice lawyers should remain vigilant in this area. This opinion, issued by the intermediate Maryland appellate court, may not be the final word. Defendants will likely continue to exploit any potential technicality involving CQE and report to defeat claims.
Many medical malpractice lawyers, anticipating potential challenges, submit a CQE that states the defendant breached the standard of care, which was the proximate cause of the injury. They then attach a report that provides additional information about each of these components. This meticulous combination not only satisfies the statute but also preempts any argument that the report adds nothing to the CQE.
Note on Damages
Another interesting aspect of this case was the injury alleged. The patient was required to undergo a second procedure to fix the damage and remove the filter. Due to the extensive time and high expense of pursuing these cases, many medical malpractice lawyers will not pursue a claim unless the malpractice causes a permanent physical injury. It does not appear that that was the situation here.
In addition, many medical malpractice lawyers will not pursue a case where the patient died from a cause unrelated to the medical malpractice.
After remand, the parties dismissed the case without prejudice. This dismissal often indicates that the parties settled; however, we cannot be certain.
For additional Blog posts on expert witness issues, including CQEs and reports, see the Expert Testimony category.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.