The Maryland medical malpractice lawyer needs to get one or more independent doctors to support a case to file it. At least one of those doctors must sign a Certificate of Qualified Expert. Different qualifications enable a doctor to sign a CQE, including particular teaching experience.
Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery, P.C. et al.
The Appellate Court of Maryland issued a reported opinion in Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery, P.C. et al. (December 29, 2022). The case involved a dispute over the plaintiff’s CQE, and specifically, whether the expert’s teaching experience met the law’s requirements.
The Maryland CQE Statute
CJP 3-2A-02(c)(2)(ii) provides the different ways in which a health care provider can qualify to sign a CQE. Specifically, the health care provider:
A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and
B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.
2. Subsubparagraph 1B of this subparagraph does not apply if:
A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or
B. The health care provider taught medicine in the defendant’s specialty or a related field of health care
The issue before the Jordan Court was the underlined portion in 2B. (Id. at 1-2).
The Circuit Court
The defendant was board-certified in oral and maxillofacial surgery, but the plaintiff’s CQE expert was not. However, within five years of the malpractice, the CQE expert had clinical experience within a related field. He also taught as an assistant professor in the same field for two years in the 1970s. The procedure did not exist at that time. As a result, the circuit court struck the CQE, holding that the teaching experience was not recent enough. Consequently, the circuit court dismissed the case with prejudice. (Id. at 2-3).
The procedure at issue involved inserting two implants and bone grafting. The treatment failed and afterward caused an infection. (Id. at 3-4). The plaintiff had a periodontist sign the CQE. Periodontics is a related field to oral and maxillofacial surgery. (Id. at 4).
The plaintiff’s expert taught periodontics for two years in the 1970s as a full-time assistant clinical professor. At that time, implants and bone grafting were not a treatment option. After leaving that position, he practiced periodontics for 30 years but did not become board-certified. When implants and bone grafting became available in the 1980s and 90s, he incorporated them into his practice. He recently retired but returned to practice part of the time. He stopped doing implants but continued to do some bone grafts. (Id. at 5).
The circuit court struck the CQE, concluding that the plaintiff’s expert had not taught within the last five years, and dismissed the complaint with prejudice. (Id. at 6).
Appellate Court of Maryland
The Maryland high court has held that the CQE requirements are unambiguous on multiple occasions. (Id. at 17). Correspondingly, the Jordan Court held that the provision “taught medicine in the defendant’s specialty or a related field of health care” is not ambiguous. It is not time-bound. As a result, a retired professor would qualify. (Id. at 19).
The Court then examined the circuit court’s decision to dismiss the case with prejudice. If a plaintiff fails to file a CQE, the remedy is dismissal without prejudice, allowing the plaintiff to re-file. CJP 3-2A-04(b)(1)(i). The Jordan Court held that there is no statutory authority for dismissal without prejudice relating to a CQE. Therefore, whether the issue is failure to file or filing an inadequate one, the remedy is the same – dismissal without prejudice. It does not matter if the statute of limitations has already run. (Id. at 29-30).
The defense in Jordan advocated adding a restriction to the CQE statute that is not in it. That restriction would have required that the teaching experience in 2(B) be within five years of the malpractice.
Fortunately, the Jordan Court found that the law’s language was unambiguous, that the General Assembly had decided not to institute such a time restriction, and that it was not the Court’s role to add one.
This decision is significant for Maryland medical malpractice lawyers. Find doctors willing to testify in a medical malpractice case can be challenging. Significantly, there can be pressure against those doctors from their boards, employers, and peers not to support plaintiffs. Any restriction on the qualifications required of an expert would make finding experts even more challenging.
The Jordan decision confirms and clarifies several things: Firstly, the CQE language is unambiguous. There is no time restriction on the teaching component in 2(B). Last, any dismissal relating to the CQE can only be without prejudice. This clarity will be helpful to the Maryland medical malpractice lawyer.
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