Currently, in Maryland, an expert in a medical malpractice claim who testifies as to the “standard of care” is required to devote no more than 20% of her professional activities to activities that directly involve testimony in personal injury claims. Generally, the standard of care is described as the degree and skill expected of a reasonably competent physician in the same general area of practice in the same or similar situation. If a physician is found to have acted outside of the “standard of care,” then her actions may be considered negligent. Maryland’s “20% Rule” was enacted to discourage the use of professional expert witnesses or “hired guns,” in medical malpractice cases since expert testimony is required on the issue of negligence. By limiting the expert’s work in personal injury claims to 20% of her professional activities, the Rule is intended to ensure that an expert, who is testifying with respect to another physician’s treatment of a patient, actually is engaged in treating patients.
The “20% Rule” however, is about to change. Effective October 1, 2019, the “20% Rule” will become the “25% Rule.” Health care providers who dedicate no more than 25% of their professional activities to testimony work will now be qualified to serve as experts in Maryland medical malpractice cases. Currently, the statute requires that the expert not devote annually more than 20% of her professional activities to testimony each year. The period of the expert’s practice in which the Rule fell was not explicitly clear, but has generally been considered to be the time in which the litigation is taking place, and years prior. The amended statute provides clarification and provides that the “25% Rule” will be limited to the expert’s professional activities in the 12 months immediately before the date when the plaintiff first filed the claim. The new bill was initially introduced as a “50% Rule,” and was limited to the expert’s professional activities during the calendar year of the event giving rise to the claim, which could have been years before the suit is actually filed.
The amendment also mitigates the severity of the consequences that a party may suffer as a result of failing to comply with the statute. In Maryland, the standard of care expert is required to file a Certificate of Qualified Expert, and a valid Certificate must strictly conform to the statute’s requirements. For a plaintiff, the failure to file a proper Certificate can result in dismissal of her suit. If dismissal occurs, unless the deficiency was willful or the result of gross negligence, the plaintiff has 90 days to refile the suit if the statute of limitations has passed. The legislature has now enlarged the time in which a noncompliant plaintiff will be permitted to refile her suit. Effective October 1, 2019, parties may refile their suit before the later of the expiration of the statute of limitations, or 120 days after the date of its dismissal – in other words, the statute of limitations is extended 120 days, as opposed to 90 days under the current law. The statute makes clear, however, that the suit may only be refiled once.
The new 25% Rule widens the pool and permits currently unqualified experts to testify in medical malpractice cases in Maryland. It poses the risk of gently pushing open the door to the very scenario the legislature originally intended to prevent: the hired gun. In some cases, plaintiffs may face difficulty finding local physicians to support their claims; they are forced to find experts outside of the State or through expert services. Starting in October, plaintiffs will benefit from a wider pool of experts to choose from, as well as a longer time to take a second bite at the apple should the statute warrant dismissal of their first claim due to a noncompliant Certificate.
For more information, please contact any member of the Tydings health care practice group.
This alert has been prepared by Tydings for informational purposes only and does not constitute legal advice.