CONTROVERSIAL ISSUE

SUMMARY: Legislation was filed in the 1996 session to require a certificate of a qualified expert to be filed in any malpractice claim against a licensed professional. The professional groups specified in the bill included architects, interior designers, landscape architects, engineers and land surveyors.

Current law provides for filing a certificate of a qualified expert for health care malpractice claims (Section 3-2A-04, Courts and Judicial Proceedings Article). In addition, Maryland Rule 5-702 allows the court to admit expert testimony to assist the trier of fact to understand evidence or determine a fact in issue. This rule allows the court to decide whether a witness is a qualified expert, whether the expert's testimony is appropriate, and whether a sufficient factual basis exists to support the testimony.

Under the provisions of the 1996 legislation, a qualified expert, defined as a licensed professional in Maryland who practices in the same field as the defendant and who devotes at least 80% of the professional time to that discipline, would be required to certify any malpractice claim. The qualified expert's statement would have to include an opinion that the licensed professional being sued failed to meet the standard of care within the profession and caused the injury through negligence, misconduct, error or omission. The bill set a 90-day limit, with a possible extension upon a finding of good cause, for the plaintiff to file the certificate of merit.

The 1996 proposal attempted to mirror the qualified expert approach used in health care malpractice claims, but failed to reconcile the significant differences in the methods for handling the respective cases. Unlike medical malpractice suits, where there is a statutory right to get records from the health care provider and where hospitals and other health care facilities may provide additional information, there is no independent source of background data to document the cause of action against construction and design professionals. Any suit against a surveyor, architect, engineer, interior designer, or landscape architect would be a case in which the defendant possesses all of the pertinent information and has a proprietary interest in controlling that information.

Supporters of the certificate of merit approach contend that design and construction professionals must pay high insurance premiums to protect themselves against the possibility of frivolous lawsuits, and must spend additional funds to prepare their defense when weak cases are filed. They believe that the certificate of merit requirement would stop marginal lawsuits early in the process and save them these insurance and defense costs.

On the other side are those who disagree with the underlying premise of the proposal. They dispute the proponents’ claim that there are a multitude of frivolous lawsuits being filed. The opponents also state that adding another step to the litigation process would slow down cases, add to costs, and have a chilling effect on citizens with meritorious cases. They say that passage of the bill in all likelihood would lead to the growth of a cottage industry of "qualified experts" who would be available to certify claims. Lastly, they complain that the 90 day, or even 180 day, time frame for filing the certificate of merit is too constrictive to conduct a sufficient analysis of a potential claim.

When the certificate of merit bill was filed in 1997, the MSBA supported the bill with amendments. The changes proposed by the MSBA focused on allowing qualified professionals from other states to serve as experts, expanding the time frame available to claimants to obtain a certificate, and providing claimants with access to information that would have been discoverable in civil actions. This legislation passed the House of Delegates with most of the MSBA-proposed amendments, but did not come up for a vote in the Senate before the General Assembly adjourned.

A bill containing all of the MSBA-endorsed amendments to the 1997 measure was approved overwhelmingly by the General Assembly in the 1998 session.  Since that time there have been no bills to change the law in this area.

MSBA 2002 POSITION: No position until legislation is available.

SAMPLE LEGISLATION:
House Bill 1347, General Assembly of Maryland, 1997
House Bill 188, General Assembly of Maryland, 1998

Return to 2002 Final State Legislative Program Table of Contents

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