CQE Extension Right: Dunham v. UMD 2
The Baltimore Medical Malpractice Lawyer Blog examines issues in Maryland medical malpractice cases. In this post, I discuss the right to a filing extension and the timing requirements for a Certificate of Qualified Expert (CQE). The case is the Court of Special Appeals published opinion in Dunham v. University of MD Med. Ctr., 237 Md. App. 628 (2018). This post is Part 2 of a Blog series on this case. In Part 1, I discussed the issue of naming agents in the CQE.
Factual Background
The plaintiffs filed suit against two related hospitals, alleging the failure to prevent and then treat pressure ulcers. (Op. at 1). The defendants filed a motion to strike the plaintiffs’ CQE for failing to identify individual medical providers. (Id. at 6). The plaintiffs opposed the motion and also, in the alternative, asked for their right to an extension to file an amended CQE. (Id. at 6-7). The circuit court then granted the motion to strike, declined to give an extension, and dismissed the case. The statute of limitations had expired by this time. (Id. at 8-9 & n.5)
Before filing an appeal, the plaintiffs filed a motion in HCADRO to extend the time to file a CQE using the same claim number. (Id. at 9-10). HCADRO granted a 60-day extension. (Id. at 11).
The plaintiffs filed a second CQE with HCADRO and then filed a complaint in the circuit court. The defendants moved to strike, arguing that the case was on appeal and the circuit court no longer had jurisdiction. (Id. at 12). The circuit court refused to stay the case and dismissed it. (Id. at 13). The plaintiffs appealed both cases, and the Court of Special Appeals consolidated them. (Id. at 14).
Court of Special Appeals on Right to CQE Extension
CJP § 3-2A-04(b)(1)(ii) states, in pertinent part:
(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.
The CSA held that the right to CQE extension is mandatory where:
- The limitations period has expired.
- There is no finding of gross negligence and willful failure by the plaintiff.
- At most, 180 days have passed since the filing of the claim.
The CSA found that all were present in this case. (Id. at 29). As a result, the circuit court erred in failing to grant a 90-day extension and dismissing the case. Accordingly, the CSA vacated the order and instructed the circuit court to grant an extension. (Id. at 30-31).
The CSA then turned to the question of how long the extension should be. Starting from the date the plaintiffs filed their claim in HCADRO, the 180 period had not expired when the circuit court dismissed the first filing. The dismissal prevented the plaintiffs from filing an amended CQE. Accordingly, the CSA directed that the plaintiffs now have 35 days to file an amended CQE. That is the number of days that remained in the 180 days on the date the circuit court dismissed the first filing. (Id. at 31-32).
Second Filing
The CSA also stated that the plaintiffs’ second filing using the same claim number was ineffective. Once the court dismissed the matter, the plaintiffs’ remedy was to re-file in HCADRO. Even if the court had not dismissed the case, the plaintiffs’ filing of the second CQE was untimely because it was on day 192, past 180 days. This decision underscores the importance of timely and effective filings in medical malpractice cases.
Because the CSA gave the plaintiffs relief in the appeal from the first filing, the plaintiffs’ appeal from the second filing was moot. This decision highlights the procedural complexities that can arise in medical malpractice cases, and the importance of understanding and adhering to the relevant timing requirements.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the Right to an Extension for a CQE
Dunham is another example of the intricate nature of the CQE requirements, a challenge that both lawyers and courts have grappled with. In this instance, the complexity revolved around the timing of filing the CQE and the availability of an extension. Other cases have delved into the content requirements of the CQE and the qualifications of who can sign one. For more in-depth discussions on these issues, refer to the Blog posts under expert testimony.
In Dunham, the circuit court’s ruling was significant. The judge recognized that the appellate courts have held that an insufficient CQE is the same as not filing one. However, the judge’s rationale did not distinguish those cases. Instead, it appears the judge made a contrary ruling because of a disagreement with those cases. This ruling underscores the profound impact of judicial decisions on the outcome of cases.
One interesting aspect of the CSA opinion is the time left on the extension. The CSA chose the date the court dismissed the first filing, which allowed the plaintiffs 35 more days. The plaintiffs already have their second CQE. However, in other cases, the plaintiffs may not.
For any plaintiff who has a rejected CQE, the message is clear: prompt action is crucial. It’s important to pursue an acceptable CQE without delay, especially during the pendency of a motion for the right to a CQE extension. This urgency is a key factor in navigating the legal process effectively.
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.