Medical malpractice law in Maryland has a few interesting quirks not found in the majority of states. Contributory negligence and non-binding arbitration, in particular, are of note when considering filing a medical malpractice claim in the Old Line State. Read on for an overview of Maryland laws that could affect your case.
Medical malpractice claims in Maryland are subject to a fairly straightforward statute of limitations. Claims must be filed within five years of the date the alleged medical malpractice occurred, or within three years from the time the injury was discovered, whichever is earlier in time.
Minors are not subject to the statute of limitations until the age of 11, or, in cases where the injury is to the reproductive system or involves a foreign object, age 16. Upon reaching either 11 or 16, the normal statute of limitations begins to run.
A wrongful death suit in Maryland must be brought within three years of the decedent’s passing.
Within 90 days of filing a medical malpractice complaint, a Maryland plaintiff must file a certificate of merit from a qualified medical expert. The certificate must state the specific injury complained of, the alleged breach of the standard of care, what the defendant doctor or doctors should have done to meet the standard of care, and must infer that the defendant doctor(s) breach of the standard of care proximately caused the plaintiff’s injuries. Defendant physicians in Maryland medical malpractice claims must also file certificates from qualified experts indicating that they either complied with the standard of care or that the alleged breach did not cause plaintiff’s injury.
In the past, all Maryland medical malpractice cases were subject to mandatory pre-suit arbitration, meaning that before you could go to court, you had to go through arbitration. Arbitration could only be waived if both parties agreed to the waiver. Recent changes to the law now allow arbitration to be unilaterally waived, meaning that if one party doesn’t want to arbitrate, the case does not go to arbitration and instead proceeds directly to suit.
If both parties agree to try arbitration, the arbitrators will decide whether the medical professional has any liability, and will also create an itemized list of damages (as opposed to a general award). Either party can reject the arbitration award, but doing so does involve some risk. All findings made by the arbitration panel are taken into consideration by the judge or jury and are deemed to be accurate unless the judge rules otherwise. Furthermore, if you reject the arbitration panel’s findings and then lose in court, you will be forced to pay the other side’s costs.
Maryland medical malpractice cases follow general Maryland law by defining a qualified expert as an individual who is a licensed professional or comparably licensed or certified professional under the laws of another jurisdiction, knowledgeable in the accepted standard of care in the same discipline as the licensed professional against whom the claim is filed. Additionally, the expert cannot be a party, an employer or partner of a party, an employee or stockholder of a professional corporation of which a party is a stockholder or a person having a financial interest in the outcome of the claim. Md. Code Ann., Sec. 3-2C-01.
Contributory negligence is still the law of the land in Maryland. Maryland is one of a small number of states that continues to recognize this controversial doctrine. In a contributory negligence state, a plaintiff is prevented from recovering damages if a judge or jury finds that the plaintiff is at-fault for any portion of his or her injuries. So in a medical malpractice case, if a judge or jury found that your doctors were 99% responsible for your injuries, but you yourself were 1% responsible, you could not collect on any judgment. Recovery is barred.
Medical malpractice damages are capped in Maryland cases. The non-economic damage cap was frozen at $650,000.00 in 2009, and has increased by $15,000.00 annually since, making the 2015 non-economic damage cap $740,000.00.
The cap applies to all claims and defendants arising from the same injury, meaning that if your spouse brings a loss of consortium claim because your injuries have affected the physical portion of your marriage, the two of you may still only draw from the same $740,000.00 pool. This cap also applies to wrongful death cases with only one beneficiary, i.e. a surviving spouse or a single surviving child. In a wrongful death case involving more than one beneficiary, the cap is $887,500.00.