No Report: Wilcox v. Orellano
The Baltimore Medical Malpractice Lawyer Blog discusses issues in Maryland medical malpractice cases. In this post, I examine what happens when a plaintiff fails to submit a report along with the Certificate of Qualified Expert (CQE). The case is the Court of Appeals reported opinion in Wilcox v. Orellano, 443 Md. 177 (2015).
Factual Background
The plaintiff saw the defendant, a general surgeon, to remove breast cancer from her left breast surgically. Afterward, the surgical site became swollen and red. The defendant then prescribed antibiotics for the plaintiff. (Op. at 9).
However, the condition did not improve, and the defendant did not provide any additional treatment. The plaintiff then went to a different medical provider. A test subsequently revealed MRSA, and the plaintiff had surgery to remove infected tissue from her breast. (Id. at 9-10).
The plaintiff filed suit in the Health Claims Alternative Dispute Resolution Office (HCADRO). HCADRO granted her an automatic 90-day extension to file her certificate of qualified expert and report from her expert witness. CJP §3-2A-04(b)(1), (3). The plaintiff requested and received an additional extension. The plaintiff filed a CQE, but not a report. (Id. at 10-11).
The plaintiff waived arbitration and filed a complaint in the Circuit Court for Howard County. The defense moved to dismiss for no expert report with the CQE. Before the court considered the motion, the plaintiff voluntarily dismissed the complaint by stipulation, signed by both parties, as the defendant had already filed an answer. (Id. at 11).
About a week later, the plaintiff filed a second claim in HCADRO, including a CQE and report. The plaintiff waived arbitration and then filed a complaint in the Circuit Court for Prince George’s County. (Id. at 11-12). The defendant moved to dismiss based on the statute of limitations, and the circuit court granted the motion. The plaintiff appealed. The Court of Special Appeals affirmed, and the plaintiff appealed to the Court of Appeals. (Id. at 13).
Court of Appeals
The plaintiff’s re-filing took place after the statute of limitations had expired. The plaintiff sought to invoke CJP 5-119. That section allows a plaintiff to re-file a claim that the court dismissed once for filing no expert report. The time allowed for re-filing is the later of the time remaining in the statute of limitations, or 60 days. The plaintiff re-filed within the 60-day time frame. (Id. at 8, 11).
However, CJP 5-119(a)(1) states that the savings provision “does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim.” The issue before the Court of Appeals is whether a stipulation of dismissal signed by both parties falls within this definition. (Id. at 14). The CA concluded that it did. (Id. at 15).
The CA noted a long history of considering treating stipulations of dismissal as voluntary dismissals by the party that filed the complaint. (Id. at 16).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Providing No Expert Report with the CQE
The interplay between general rules and medical malpractice-specific roles can be complex and a minefield. When the court dismisses a case for no expert report with the CQE, the plaintiff can re-file the case. However, if the plaintiff voluntarily dismisses for the same reason, they are precluded from re-filing. This complexity underscores the need for professional analysis in such cases.
These differing results under different circumstances are not something that comes intuitively; rather, the lawyer must glean them by applying the rules. The consequence of failing to do so was great, as the court precluded the plaintiff from pursuing the case for providing no expert report. This case highlights the crucial importance of carefully considering and applying legal rules at every stage of a legal process.
It is noteworthy, however, that this was a claim that many medical malpractice lawyers would not have pursued. Firstly, without minimizing the damages incurred, the damages here are not the type of permanent damages typically associated with a medical malpractice case. Secondly, MRSA cases can be challenging to pursue, particularly with causation, because they are such complicated infections. These considerations underscore the importance of strategic planning and thoughtful consideration of potential challenges in medical malpractice cases.
As a result, even though the court barred the plaintiff from pursuing her case for no expert report, it likely would’ve been a very challenging case to prevail on.
For additional posts on CQEs and other expert issues, 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.