CQE Agents: Dunham v. UMD
In this post series, I discuss the content and timing of filing a certificate of qualified expert in the context of a specific Maryland medical malpractice case, Dunham v. University of MD Med. Ctr., 237 Md. App. 628 (2018). The case involves a medical malpractice claim against a hospital for failing to prevent and treat pressure ulcers. The issue of whether the plaintiff has to name agents in the CQE when the defendants are corporations is a key aspect of this case. Part 1 focuses on this issue.
Factual Background on Identifying Agents in CQE
The CQE is a crucial document in a medical malpractice case. It is a report prepared by a qualified expert that identifies the breach of standard of care and also the resulting injury. In this case, the plaintiffs submitted a CQE and report that identified the corporate defendants, through their agents, as breaching the standard of care and causing injury. However, the CQE did not identify specific agents. (Op. at 3-4).
The Defendants filed a motion to strike the CQE and report and also a motion to dismiss. The defense argued that the CQE and report failed to identify individual healthcare providers. The plaintiffs responded that there is no requirement to identify agents only when the case is against corporate defendants. Plaintiffs also argued that their allegations allowed the defendants to determine which agents were involved. In addition, many doctors and nurses were involved, and many of the records had illegible entries as to their identities. The circuit court found that the CQE and report were deficient.
Court of Special Appeals
Initially, the plaintiffs argued on appeal that they did not have to identify individuals because they were pursuing direct corporate liability against the corporate defendants, not vicarious liability through their agents. However, the Court of Special Appeals noted that the plaintiffs did not raise that argument below, and accordingly, they waived it. The court also noted that the plaintiffs grounded their claims on agents’ actions. (Id. at 19-22).
Statute
The plaintiffs then argued that no statute section requires a CQE and report to name individual agents. CJP 3-2A-04(b) provided, in relevant part:
Unless the sole issue in the claim is lack of informed consent:
(1) (i) 1. Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint; * * *
(ii) In lieu of dismissing the claim or action, the panel chairman or the court shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if:
1. The limitations period applicable to the claim or action has expired; and
2. The failure to file the certificate was neither willful nor the result of gross negligence.
(Id. at 18).
However, the CSA observed that Maryland appellate cases have made clear that the CQE must explicitly mention the name of the licensed professional who breached the standard of care. (Id. at 22) (citing Carroll v. Konits, 400 Md. 167, 196 (2007). The court concluded that the circuit court had properly determined that the CQE was deficient. (Id. at 23).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Identifying Agents in CQE
The plaintiffs believed they did not have to identify the agents because they were only suing the corporate defendants. The CSA found that the instruction from Carroll and other cases clearly required such identification. At the very least, the language of those cases should have given pause to a medical malpractice lawyer considering filing a CQE without naming individuals.
Interestingly, the plaintiffs then attempted to cure the problem by filing a CQE listing 29 medical providers. This number raises an interesting strategy question and invites the audience to consider the implications of such a decision.
Since the plaintiffs alleged that the defendants failed to prevent and properly treat bedsores, the actions at issue covered all three months that the plaintiff was in the defendants’ hospitals. The plaintiffs’ identification of 29 medical providers probably covered nearly all defendants’ agents who cared for the plaintiff and arguably should have prevented or treated the bedsores better.
Strategy Pointers
However, there is a real risk that this plays right into the defendants’ hands. The more people that the plaintiff alleged committed malpractice, the more unlikely it is to have happened. The defense would argue, did 29 medical providers really commit medical malpractice in this case?
A better strategy would have been to identify the medical providers primarily involved in setting and supervising the care, which would have involved bedsore prevention and treatment.
In Part 2 of this Blog series, I will discuss the court’s ruling on the timing of the filing of the CQE and report and its implications for future medical malpractice cases in Maryland.
You can read more Blog posts on the subject of expert testimony.
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.