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Medical Malpractice – Expert Witnesses

Maryland has enacted significant limitations on the ability of Plaintiffs to use expert witnesses in Maryalnd medical malpractice cases. In 1976, the Maryland Health Claims Arbitration Act was enacted to help address a perceived medical malpractice insurance crisis. In 1986, the legislature further amended the Act to include a certificate of qualified expert requirement. As proposed in Senate Bill 559, an expert only would be qualified to sign a certificate if he or she did not receive 50 percent or more income from testimony and other activities related to personal injury claims. That language was amended to become the 20 Percent Rule; i.e., in order to qualify, a certifying expert cannot devote more than 20 percent of his or her professional activities to activities directly involving testimony in personal injury claims. The dichotomy that the General Assembly sought to reconcile was the desire, on the one hand, to exclude certain “professional witnesses” from the “pool of eligible experts” available to sign certificates of merit, while on the other, it did not want to “shrink” the size of that pool so as to “deny the parties the ability to pursue and defend these [malpractice] claims.” This balance was achieved by the aforementioned language changes which “keyed the critical numerical measurement to time, instead of income,” and narrowing the activities described as “related to” personal injury claims to the more circumscribed world of activities “directly involving testimony in personal injury claims.”

In December 2004, a Maryland General Assembly Special Session passed further amendments to the Act, addressing the issues of how much and what kind of experience an expert witness must have to be qualified to execute a certificate of merit or to testify before a panel or court on the issue of a defendant’s compliance with the standards of care. Those amendments require that a certifying or testifying expert witness: “have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action . . .”

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