20 Percent Rule: Streaker v. Boushehri
The Baltimore Medical Malpractice Lawyer Blog delves into crucial issues in Maryland medical malpractice cases. In this Post, I delve into the pivotal 20 Percent Rule. This rule mandates that certifying expert witnesses in medical malpractice cases to allocate no more than 20% of their professional activities to activities directly involving testimony in personal injury cases. The case in focus is the Court of Special Appeals reported opinion in Streaker v. Boushehri, 230 Md. App. 101 (2016).
Factual Background
The plaintiff filed a complaint for negligence and breach of contract against a certified nurse midwife in the Circuit Court for Prince George’s County. The court then transferred the case to the Circuit Court for Howard County. The complaint specifically sought damages for surgery and kidney disease allegedly caused by malpractice. (Op. at 1).
The plaintiffs enlisted the expertise of an OB/GYN expert to opine on a breach of the standard of care and causation of the damages. In his certificate of qualified expert (CQE), the doctor stated that he did not devote more than 20% of his professional time to an activity that directly involved testimony in personal injury claims, as required by statute. Accordingly, this is the 20 Percent Rule in action. (Id. at 1-2, 7). This is one of a number of expert requirements that a lawyer must know in hiring experts.
At his de bene esse deposition, the expert testified that he spent 15% of his professional time on work that directly involves testimony in personal injury actions. The defense filed a motion in limine to exclude the expert based on a violation of the 20 Percent Rule. (Id. at 3).
The trial court noted that in a recent year, the expert had earned $324,600 from his expert work, billing at $400 per hour. This equates to 811 hours or 16 hours per week. The court concluded that this represented 33.12% and granted the motion to exclude. As the plaintiff did not have another expert, the court granted the defense’s motion for summary judgment. Subsequently, the plaintiff appealed. (Id. at 4-5).
Court of Special Appeals of Maryland on the 20 Percent Rule
The CQE requirement is in CJP 3-2A-04(b)(1)(i). The 20% Rule is in subsection (b)(4). (Id. at 6-7).
The court must make a calculation. It divides the time spent on testimony in personal injury claims by the time of professional activities in general. The activities that directly involve testimony in personal injury claims are:
(1) the time the doctor spends in, or traveling to or from, court or deposition to testify, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor’s preparation to give testimony. (Id. at 7).
Professional activities contribute to or advance the profession to which the individual belongs or involve the individual’s active participation. (Id.).
Burden of Proof
The CSA first held that the plaintiff has the burden of proof to establish that their expert complies with the 20 Percent Rule. (Id. at 8-10). The court noted that the record before the trial court was disputed and incomplete. There were discovery disputes and lingering questions over what information may be missing. The plaintiff’s expert also had moved in his home state to quash a subpoena for his office calendar and list of prior depositions. (Id. at 11).
The plaintiff argued that the trial court erred by including income from initial case reviews in the analysis because it involved matters in which the expert did not testify. The plaintiff added that the testimony time would have been less than 20% if removed. (Id. at 13). The CSA did not address the initial case review claim directly. Instead, it noted that the plaintiff’s expert did not provide time records. In addition, the appearance that he did not give all of his 1099s called into question the plaintiff’s calculations. (Id. at 13-14).
The CSA concluded that the trial court was well within its discretion in concluding that the defense’s calculation was more accurate based on the available evidence than the plaintiff’s calculation. (Id. at 14). The CSA affirmed the judgment. (Id. at 15).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the 20 Percent Rule
The CSA’s ruling on the burden of proof was key to the result in this case. Once the CSA placed the burden on the plaintiff, the CSA was not sympathetic to the plaintiff’s complaints, because the difficulty in making the calculations was directly attributable to the plaintiff’s expert’s failure to provide relevant information.
The CSA stated that an expert who leaves uncertainty about the nature and extent of his activities directly involving testimony in personal injury claims risks a finding that he’s not qualified. (Id. at 14).
A plaintiff lawyer must ensure that their experts maintain and provide the information needed to satisfy the 20 Percent Rule. This task is not always easy. Many doctors who testify are very busy and are not always the most organized and compliant in providing this information.
The High Stakes of Non-Compliance with the 20 Percent Rule
The consequences for failing to provide clear evidence to satisfy the rule are catastrophic for the injured plaintiff when the court dismisses their case. It also can mark the end of the testifying career of the expert doctor.
In the case here, the expert doctor moved to quash the subpoena for evidence related to the 20% Rule. This court opinion does not mean experts generally must roll over and allow overly broad subpoenas into any of their professional information. A plaintiff expert will be in the best position to oppose any overly intrusive subpoena if the expert can show that they have already provided sufficient information to demonstrate compliance with the 20 Percent Rule.
You can also read other Blog posts on expert testimony issues.
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.