Breslin v. Powell
2011 Md. LEXIS 518
| Md. | 2011Background
- Maryland's Health Care Malpractice Claims Act requires a Certificate of Merit from a qualified expert in medical malpractice cases.
- Powell filed a suit against Breslin and others; Dr. Burt, an anesthesiologist, signed the Certificate alleging departures from standard of care by Breslin (vascular surgeon).
- Dr. Burt admitted in deposition he lacked qualifications to opine on a vascular surgeon's standard of care for epidural hematoma; this raised questions about the Certificate's validity.
- The circuit court granted summary judgment in Breslin's favor, interpreting the statute to allow SJ for an unqualified attestor.
- The Court of Special Appeals reversed, holding that the remedy for any certificate deficiency is dismissal without prejudice, regardless of which provision was violated.
- The Maryland Court of Appeals granted certiorari to decide whether noncompliant certificates mandate dismissal without prejudice and bar summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does an unqualified expert certificate require dismissal without prejudice? | Breslin asserts 3-2A-02(c)(2)(ii) creates qualifications but 3-2A-04(b)(1) only addresses no filing, so SJ is available. | Powell contends the combined effect of 3-2A-02 and 3-2A-04 requires dismissal without prejudice for any certificate deficiency. | Dismissal without prejudice required |
| Can summary judgment be appropriate when a certificate is defective because of an unqualified attestor? | The statute does not explicitly authorize dismissal with prejudice or SJ; Rules incorporation supports SJ. | Plain reading and caselaw require dismissal without prejudice for any certificate failure. | Not appropriate; SJ not required |
| Should CJ §§ 3-2A-02 and 3-2A-04 be read together to determine the remedy for certificate deficiencies? | Their interaction is unclear; some interpretive tools would permit a broader remedy. | The provisions operate in tandem; a deficient certificate triggers dismissal without prejudice. | Yes; read together, they mandate dismissal without prejudice |
Key Cases Cited
- Walzer v. Osborne, 395 Md. 563 (2006) (weighs the purpose and gatekeeping function of the certificate)
- Debbas v. Nelson, 389 Md. 364 (2005) (discovery can invalidate a facially valid certificate when circumstances arise post-filing)
- Carroll v. Konits, 400 Md. 167 (2007) (dismissal without prejudice when proper certificate not filed; purpose to weed out non-meritorious claims)
- Kearney v. Berger, 416 Md. 628 (2010) (dismissal without prejudice for failure to attach proper expert report to certificate)
- D'Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631 (2004) (recognizes that failure to file a conforming certificate can be treated as failure to file at all)