Philadelphia Top Injury Lawyer Blog

Here in Pennsylvania, our legislature requires each legal claim for medical negligence against an individual doctor to be followed within 60 days by a certificate of merit written by a medical expert witness. As a Pennsylvania medical malpractice lawyer, I was therefore interested to see a ruling about a similar state law in Maryland. In Breslin v. Powell, the Maryland Court of Appeals ruled that Dr. Jeffery Breslin should not have been granted summary judgment in a medical malpractice case filed by the family of Jackie Powell. Instead, the Powells' case should have been dismissed without prejudice when the trial court found that his Certificate of Merit did not meet legal standards. The decision still ends the case, but allows the Powells to try again if they choose and can produce a proper Certificate of Merit.

Powell was admitted to Good Samaritan Hospital in Baltimore for renal surgery that was intended to keep him off dialysis. Unfortunately, the anesthesia caused a spinal cord injury that paralyzed Powell from the waist down, and his family alleged that this led to his death 15 months later. The family filed suit against the hospital and the anesthesiologist, a Dr. Monford Wolf; they later added more hospital defendants and Breslin. In support, they filed a Certificate of Merit authored by a Dr. Ronald Burt, an anesthesiologist. At deposition, Burt acknowledged that he was not qualified to testify as an expert about Breslin's specialty, vascular surgery. Breslin moved to dismiss or, in the alternative, for summary judgment.

The Powells had other experts waiting in the wings, but this was not enough for the trial court, which granted summary judgment. The Powells then moved to reconsider, arguing that Maryland law requires dismissal without prejudice, not summary judgment, which is essentially dismissal with prejudice. This too was denied. The Powells appealed to the Maryland Court of Special Appeals and won a reversal. Breslin appealed to the Maryland Court of Appeals. On appeal, the court reviewed the history of medical malpractice laws in Maryland, then turned to the task of interpreting the statute. Its plain language says a claim "shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert[.]" Breslin argued that this passage refers to failure to file any certificate at all, but caselaw, legislative intent and the plain language of the statute all say otherwise, the Court of Appeals said. Thus, it upheld the special appeals court.

As a Pennsylvania medical negligence lawyer, I can hardly see how the appeals court could have come to any other conclusion, given the language of the law. This is a good reminder that even when a trial court makes a mistake, you can and often should keep asking higher courts to reverse that mistake. It is also a reminder that it's best to have an attorney's help preparing required legal documents like this certificate, to ensure that the case is not delayed unnecessarily and its costs don't spiral out of control through mistakes. While the Powells are entitled to a second chance at their case, their first chance could have succeeded with a better expert. As a Philadelphia birth injury lawyer, I work hard to ensure that my clients' cases are free of procedural problems and can be considered on the merits.