How Medical Malpractice Cases Differ in Different Areas

The rules for the filing of medical malpractice cases vary wildly from jurisdiction to jurisdiction. Maryland, Virginia, and District of Columbia each have their own unique set of rules that can trap unwary plaintiff’s attorneys.

Maryland

In Maryland, all medical malpractice claims must first be brought in Health Claims Arbitration. Under Maryland Courts and Judicial Proceedings §3-2A-04, any person having a claim against a health care provider for medical negligence must first file a claim with the Health Claims Arbitration Office. The current director of that office is Harry Chase, Esq. The director then causes a copy of the suit to be served on all health care providers named in the claim.

Under the same statute, the plaintiff must file a Certificate of Qualified Expert and Report within 90 days of the filing of the plaintiff’s claim. The Certificate of Qualified Expert and Report must be completed by a health care provider and must assert not only that there was a departure from the standard of care but also that the departure from the standard of care was a proximate cause of injury to the plaintiff. After filing of a Certificate of Qualified Expert and Report, under Maryland Courts and Judicial Proceedings §3-2A-06A, the plaintiff can then unilaterally waive out of Health Claims Arbitration, and the claim will be transferred to the appropriate Maryland circuit court for litigation.

In recent years, there has been much litigation regarding what constitutes a proper Certificate of Qualified Expert and Report. This legal minefield is best left to experienced Maryland medical malpractice attorneys.

The District of Columbia

In the District of Columbia, medical malpractice cases attorneys do not have to file a claim with a Health Claims Arbitration Board. However, there are requirements that must be met prior to filing a lawsuit against a health care provider. Under D.C. Code §16-2802, the plaintiff’s attorney must, within 90 days prior to filing a lawsuit, provide notice to any medical provider that they intend to sue.

The notice is required to “include sufficient information to put the defendant on notice of the legal basis for the claim and the type and extent of the loss sustained, including information regarding the injuries suffered.” If, in a D.C. medical malpractice case, the lawyer finds himself within 90 days of the statute of limitations, the notice under D.C. Code §16-2802 must still be sent. However, the statute of limitations will be extended to 90 days from the date of the notice. The law is unclear whether the date of the notice is the date that it is mailed or served. Accordingly, D.C. medical malpractice attorneys need to be very careful and should serve any notice by hand.

Virginia

Virginia medical malpractice lawyers can file directly in the appropriate Virginia circuit court. However, prior to requesting service on any defendant, the medical malpractice attorney must obtain a certification from a qualified medical expert that there was a departure from the standard of care and that the departure from the standard of care was a proximate cause of injury to the plaintiff.

Further details of the letter can be found in Virginia Code §8.01-20.1. Any certifying expert must be a health care provider that the medical malpractice attorney reasonably believes would be qualified to serve as under §8.01-581.20. Defense counsel can request certification from plaintiff’s counsel that proper certification was obtained. Plaintiff’s counsel, then, has 10 days to certify that a proper certification was obtained. Failure to do so may result in the dismissal of the Virginia plaintiff’s attorney’s medical malpractice case. Defendants do not have the right to obtain the certification or ascertain the name of the certifying expert.

As anyone can see, Virginia, Maryland, and DC medical malpractice cases can be a minefield for attorneys. Accordingly, we highly recommend that anyone thinking of bringing such a case retain experienced legal counsel from Simeone & Miller, LLP.

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