CQE Extension: A.C. v. Kennedy
The Baltimore Medical Malpractice Lawyer Blog features Maryland appellate opinions in medical malpractice cases. This post focuses specifically on the September 5, 2024, unreported opinion by the Appellate Court of Maryland in A.C. v. Kennedy Krieger Children’s Hospital, Inc., et al., No.1922. The main issue concerns extension to file a CQE,
In 2018, the Neurobehavioral Unit (NBU) at the Kennedy Krieger Institute treated the plaintiff. Afterward, he filed a claim for medical malpractice in the Health Care Alternative Dispute Resolution Office (HCADRO). HCADRO then transferred the case to the Circuit Court for Baltimore City. The court subsequently dismissed the complaint for failure to file a compliant certificate of qualified expert (CQE). The plaintiff then appealed. (Op. at 1).
Factual Background
The plaintiff, who has autism spectrum disorder, alleges that the NBU administered noise exposure therapy, which consisted of being locked in a room and forced to listen to the ear-piercing sounds of screaming babies. The plaintiff contended that he was so traumatized that he asked repeatedly to be let out, then hit his head running into an observation window, causing a brain injury. (Id. at 2).
The plaintiff did not file a CQE in HCADRO by the deadline of 90 days from the filing of the complaint. CJP 3-2A-04(b)(1)(i)1. The plaintiff sought and was granted an extension until 10/1/21. On 8/21, the plaintiff filed a two-page letter as a CQE and a motion to identify experts and requested three additional months to file a CQE. (Id.).
On 12/15, the defense filed a motion seeking an extension to file their CQE. HCADRO granted the motion, and the defense filed their CQE before the extended deadline. (Id. at 3).
HCADRO transferred the case to the circuit court, including a motion for summary judgment that the plaintiff had filed. The defense then filed a motion to strike the CQE in the circuit court. The plaintiff also filed two more motions for summary judgment based on the defense’s failure to file an answer within 30 days of service of the complaint. The circuit court denied them and granted the defense’s motion to strike. The court dismissed the case without prejudice. The plaintiff appealed. (Id. at 4).
Appellate Court Analysis of CQE Extension
The plaintiffs contended that the defense filed its CQE almost a year late. It was deficient because they used their former employee doctor. (Id. at 5-6). The defense filed its CQE within the extended deadline. The Appellate Court called the plaintiff’s contention that it was untimely “completely meritless.” (Id. at 10).
Similarly, the plaintiff’s contention that the defense failed to file an answer when due “had no basis whatsoever.” Rule 2-321 extended the defense’s time to file an answer until 15 days after ruling on the defense’s motion to dismiss. When the plaintiff filed the motion, the defense was not yet obligated to file an answer, so the court did not err in denying the motions. (Id. at 12).
The court also confirmed no prohibition against a former employee signing the CQE. (Id.).
The plaintiff argued that the court wrongfully deprived him of an extension to file a CQE. (Id.). The court noted that the CQE was obviously deficient. The plaintiff received a 90-day extension of time and failed to file a compliant CQE. The plaintiff had received all the time to which he was entitled and failed to comply with the rule. (Id. at 14).
The plaintiff also contends that the defense obstructed his efforts to obtain needed documents, and the court’s failure to give him the opportunity to get them denied him the ability to file a supplemental CQE (Id.).
However, the Appellate Court ruled that the plaintiff could not file a supplemental CQE under CJP 3-2A-06D. The deficiencies in the plaintiff’s CQE were entirely within his knowledge. There was no good cause for a further extension of time. (Id. at 16).
The plaintiff had exhausted all time extensions, and his CQE was noncompliant. Dismissal without prejudice was appropriate under CJP 3-2A-04(b)(1)(i)1.
Commentary by the Baltimore Medical Malpractice Lawyer
Courts don’t often reject arguments as “completely meritless” and having “no basis whatsoever.” In this case, the plaintiff filed repeated motions for summary judgment based on the defense’s failure to file an answer. However, the answer was not due yet. The applicable rule extended the time to answer until after the court decided a dispositive motion. That rule is one of the basic rules of civil procedure. Ignorance of that rule probably caused the court to use exasperating language in denying the plaintiff’s motions.
The rules and case law concerning CQEs are much more challenging. There has been significant litigation over CQE requirements, with courts often setting high standards for what constitutes a compliant CQE. Experienced medical malpractice practitioners have to take care to meet all of these requirements. The plaintiff had six months during the litigation to file a compliant CQE and failed to do so. Many practitioners prepare their CQE before they file in HCADO.
The remedy for a noncompliant CQE is dismissal without prejudice. This dismissal allows the plaintiff to re-file within the statute of limitations and try again to submit a compliant CQE. We will see if they attempt that.
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.