Kearney v. Berger
416 Md. 628
| Md. | 2010Background
- Estate of Kevin M. Kearney sues Dr. Robert S. Berger for medical malpractice over a 2001–2002 mole biopsy alleged to have been delayed, leading to melanoma and death in 2003.
- Case began in HCACRO; petition included a 'Claim Form' with a certificate by Max H. Cohen, M.D., stating deviations from standard of care proximately caused injury.
- Berger unilaterally waived arbitration after the claim was filed, transferring the case to circuit court; petitioners later filed in circuit court with similar claims.
- Walzer v. Osborne (2006) held that a certificate is incomplete without the attesting expert’s report and mandates dismissal if no report is attached.
- Petitioners sought extensions for good cause under §§ 3-2A-04(b)(5) and 3-2A-05(j); trial court found no good cause and dismissed the case.
- Court of Special Appeals later held the certificate insufficient and allowed attacks on waiver issues; ultimately this Court addressed whether waiver and good cause complied with the statute.
- This Court held the certificate was insufficient due to lack of an attached attesting expert report, and no good cause existed to extend the filing deadline; dismissal without prejudice was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Law of the case applicability and scope | Law of the case should not prevent new arguments. | Law of the case bars new issues from previous appeals. | Law of the case did not bind this Court; Loveday exception applies despite prior bypass certification. |
| Whether the certificate of qualified expert was sufficient | Certificate, with attached attesting expert report, satisfied § 3-2A-04(b). | Certificate insufficient for lacking attesting expert report and standard-of-care details. | Certificate insufficient because no attesting expert report attached; standard-of-care details missing. |
| Identification of the health care provider(s) who violated standard of care | Berger identified as the sole defendant; certificate identifies him. | Certificate must specifically name the provider who violated standard of care. | Certificate sufficiently identified Berger as the defendant; meets Carroll’s specificity requirement. |
| Whether the certificate must state the standard of care and how it was breached | Certificate satisfied by attesting that care fell below standard and proximate cause. | Certificate must state the standard and how it was departed from. | Certificate fails because it does not state the standard of care or explain how Berger departed from it. |
| Whether the certificate need not state that the attesting expert satisfies § 3-2A-04(b)(4) or opinions to medical probability | No need to include those explicit statements; focus on merit of claim. | Attesting expert must satisfy § 3-2A-04(b)(4) and express opinions at probability level. | Section 3-2A-04(b)(4) need not be stated in the certificate; opinions need not be expressly medical-probability level at this stage. |
| Whether Berger waived the certificate challenge by unilateral waiver of arbitration | Berger's waiver of arbitration forecloses waiver challenges to the certificate. | Waiver of arbitration does not waive challenges to certificate sufficiency. | Berger did not waive certificate-sufficiency challenge; waiver did not invalidate § 3-2A-04(b) procedures. |
| Whether good cause existed to extend the certificate filing deadline | Walzer and government-official reliance created good cause. | No good cause shown; reliance on Walzer did not excuse statutory requirements. | No good cause found; extension denied; dismissal without prejudice appropriate. |
Key Cases Cited
- Walzer v. Osborne, 395 Md. 563 (Md. 2006) (holding that certificate must include attesting expert report attached to it)
- Carroll v. Konits, 400 Md. 167 (Md. 2007) (certificate must state standard of care and how departed from it; supports exclusivity of report requirement)
- D'Angelo v. St. Agnes, 157 Md.App. 631 (Md. 2004) (early articulation of certificate requirements under HCMCA)
- Marousek v. Sapra, 87 Md.App. 205 (Md. 1991) (waiver considerations in HCMCA context (mutual waiver); distinguishable from unilateral waiver)
- Rice v. UMMS, 186 Md.App. 551 (Md. 2009) (addressed waiver implications in certificate/sufficiency context)