What Is Required to Bring a Maryland Malpractice Case?

There are small differences between medical malpractice and negligence. The duty owed by a doctor is the degree of care and skill which is expected of a reasonably competent practitioner confronted with similar circumstances. This standard of care accounts for the specialized knowledge or skill of a physician. So a cardiologist has a different standard than a primary care doctor. The duty owed in an ordinary negligence lawsuit is the “reasonably prudent person” would have done under similar circumstances.”

The reason Maryland courts require expert testimony in medical malpractice cases is that juries and judges may not infer medical negligence without expert opinions because whether a doctor made a mistake and whether that mistake caused harm is not a task that a non-medical expert can determine.

The Health Care Malpractice Claims Act (“Health Claims Act”) requires victims claiming an injury from medical malpractice of a ‘health care provider’ and more than $ 30,000 in damages must first file their claims not in a Maryland Circuit Court but in Maryland Health Claims Arbitration. Within 90 days of the filing of the claim, the plaintiff must file a certification by a qualified medical expert who attests to a departure from proper standards of medical care. So you cannot wait to produce your expert to avoid the dismissal of your claim.

Once a claim is filed in Health Claims Arbitration and an expert opinion has been filed, either party can waive the arbitration requirement. This is routinely done. But a Health Claims filing is required as a “condition precedent” to later filing a lawsuit in Circuit Court.

There are occasional “obvious injury” cases that do not require medical testimony in Maryland malpractice claims. But these cases are extremely rare. You are better served assuming you need an expert to bring your claim if you want to avoid the risk of dismissal.

An expert in a Maryland medical malpractice case must say there has been a breach of the standard of care and an injury. The expert must also testify that she holds these opinions to a reasonable degree of medical probability or certainty.

A reasonable degree of medical probability or certainty in medical malpractice cases essentially means that the expert believes that it is more likely than not that his opinion is correct. So the expert does not have to testify that she is sure that the plaintiff’s doctor made a mistake. But the testimony must a minimum be that is it is more likely than not that the doctor’s mistake caused the injury.

Maryland Rule 5-702 provides that for expert testimony to be admissible, there must be a sufficient factual basis to support the expert’s testimony. The two sub-factors to this requirement are: (1) the opinion must be based on an adequate supply of data, and (b) the opinion must be based on a reliable methodology.

The doctrine of res ipsa loquitur can be used in medical malpractice cases. But its application is rare because medical negligence is hard to infer from any action without other information.

There is no cap on economic damage in Maryland. You can recover whatever economic damages you can prove. But there is a limit on pain and suffering and other noneconomic damages. Currently, the cap on pain & suffering damages is $830,000 for an injury case and $1,037,500 for a wrongful death case with 2 or more survivors.

There is a time limit on every Maryland malpractice claim. Most are three years but the deadline to file or provide notice of a filing may be less. In rare cases, the statute of limitations is expanded to 5 years.

There is a cap for malpractice actions but it is a bit different than the cap for a living victim. A wrongful death generally creates two causes of action. The survival action brought by the personal representative of the decedent and the wrongful death action brought by statutory beneficiaries of the decedent. There are different caps in these two actions. But when the claims are brought together, you can what is called a cap and a quarter. Which means the cap for the combined cause of action is 125% of the pain and suffering cap. So in 2020, the combined wrongful death and survival action cap is $1,037,500 which is 125% of the $830,000 cap.

Maryland’s wrongful death statute permits only one wrongful death lawsuit to be brought by the beneficiaries of a decedent. Maryland Courts & Judicial Article § 3-904(f). So all wrongful death beneficiaries have to be in the same lawsuit. But they can have separate lawyers. The Personal Representative of the Estate controls the survival action claim.