Identifying Defendant: Otto v. UPMC 2
The Baltimore Medical Malpractice Lawyer Blog features Maryland appellate opinions in medical malpractice cases. In this two-part post, I examine a recent case involving the plaintiff’s Certificate of Qualified Expert (CQE) and report. The case is the December 11, 2025, unreported opinion by the Appellate Court of Maryland in Otto v. UPMC Western Maryland Corp., No. 1596. In part 1, I discussed the related specialty requirement. In part 2, I dissect identifying the defendant in a CQE and the standard of care requirements.
Factual Background on Identifying the Defendant in a CQE & Standard of Care
The plaintiff filed a medical malpractice case in the circuit court for Allegheny County, alleging that the hospital was negligent in its prevention, diagnosis, and treatment of his sacral decubitus ulcer. (Op at 1).
The plaintiff entered the emergency room with drowsiness and loss of consciousness. He stayed two weeks, and many doctors and nurses treated him. (Id. at 2).
Although the plaintiff was heavy, the medical providers did not order a bariatric bed for him until eight days into his admission. At that time, they diagnosed him with a sacral pressure ulcer. The patient underwent surgical debridement of the ulcer and was discharged from the hospital three days later. (Id. at 2-3).
Two weeks after discharge, after losing consciousness, the plaintiff went to another hospital, where he was diagnosed with a stage three sacral decubitus ulcer. He received further treatment, was transferred to another hospital, and then subsequently discharged. For six months, he would have severe discomfort from the ulcer, including the inability to sit for more than two hours at a time. (Id. at 3).
The plaintiff then filed his claim in the Healthcare Alternative Dispute Resolution Office (HCADRO). (Id. at 3). The plaintiff also filed a CQE and a report from his proposed expert witness addressing the allegations of breach. The defense moved to dismiss, arguing that the CQE and report were insufficient under CJP 3-2A –01. Afterward, the circuit court granted the motion to dismiss. (Id. at 1).
The plaintiff then appealed. (Id. at 1). In part 1, I discussed the Appellate Court of Maryland’s holding that the plaintiff’s CQE met the related specialty requirement. Examining for decubitus ulcers was a procedure shared by both general surgeons and internal medicine doctors.
Appellate Court of Maryland
The following two issues that the appellate court addressed were whether the CQE and report sufficiently stated the standard of care and identified the defendant.
A valid CQE must identify with specificity the defendants against whom the plaintiff brought claims, include a statement that the defendants breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff’s injuries. CJP § 3-2A-04(b)(1)(i). (Id. at 14).
Identification of Defendant
The Appellate Court rejected the defense’s contention that the CQE and report failed to identify the medical providers specifically. The court noted that the CQE specifically listed the providers’ names. All of them were either defendant hospital employees or apparent agents because they treated the plaintiff at the defendant’s hospital. There was no allegation that the hospital gave notice that those employees were independent contractors. (Id. at 16).
Moreover, the plaintiff had alleged in his complaint that the prior providers were agents, servants, and employees of the defendant. His CQE identified the defendant and its agents, servants, and employees. Naming the providers was equivalent to naming the defendant and satisfied the identification requirement. (Id.).
Standard of Care
A CQE must include a statement that the defendants breached the applicable standard of care. CJP § 3-2A 04(b)(1)(i). The report or CQE must indicate what the applicable standard of care was or how the named provider departed from the standard of care. (Id. at 16).
CQE & Report
The plaintiff expert’s report addressed two scenarios due to conflicting evidence. The first was if the fact finder determined that the decubitus ulcer was not present on admission:
All treating healthcare providers who saw the plaintiff during his time at the hospital until November 14 failed to adhere to the standard of care in failing to monitor him for the development of an ulcer, failing to properly order nursing instructions for the preemptive treatment to avoid the development of the ulcer, in failing to take note of the objective findings that would indicate a need to prevent the development of the ulcer, and in ultimately allowing the ulcer to develop. (Id. at 17-18).
If the fact finder determined that the ulcer was present on admission:
All treating healthcare providers who saw the plaintiff from the time of admission until November 14 failed to adhere to the standard of care in documenting, monitoring, treating, and requesting consultations for the ulcer. (Id. at 18).
The expert added that after November 14, all health care providers treating the plaintiff failed to adequately control the ulcer’s development and then allowed it to progress to an ultimately unstageable ulcer. (Id.).
The Appellate Court found that the plaintiff’s expert identified how each provider treated the plaintiff, and that the actions were insufficient as to the applicable standard of care. The CQE makes clear that the alleged standard of care required the providers to monitor, document, and request consultations to treat the ulcer. (Id. at 18). As a result, the CQE was not deficient, and the circuit court erred in granting the motion to dismiss. (Id. at 19).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Identifying the Defendant in a CQE & the Standard of care
On the issues of sufficient identification of the defendant and stating the standard of care, the Appellate Court had no problems in efficiently concluding that the CQE was adequate.
The primary basis for the circuit court’s erroneous ruling was its conclusion that the CQE did not meet the related specialty requirement. However, the defendant’s pressing of the two arguments on identification of the defendant and stating the standard of care shows that defendants will go to lengths to take advantage of trial courts’ lack of understanding in this area of the law.
The CQE in this case easily defeated all three of the defendants’ arguments. Unfortunately, the trial court’s ruling in favor of the defense on one issue resulted in a lengthy delay in this litigation. Fortunately, the appellate court has corrected that error and also has returned the plaintiff’s case to him.
Until the trial courts get a firm grasp on CQE law, defendants will continue to make their unsupported arguments, and these arguments will continue to generate delay.
You can read other Blog posts on issues involving Expert Testimony, including:
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.