Two families can face nearly identical allegations of negligent obstetric care yet encounter very different procedures before their cases ever reach the discovery stage.
One child might have been delivered at a Maryland hospital. Another might have been born less than two hours away in Philadelphia. Both cases could involve questions about fetal monitoring, delayed delivery, neonatal treatment or another alleged departure from the standard of care.
But Maryland and Pennsylvania do not use the same gateway for medical-malpractice litigation.
That distinction can matter when a family lives in one state but treatment occurred in another. Someone consulting a birth injury lawyer in Philadelphia should not assume that the filing process will resemble a Maryland medical-malpractice case simply because the underlying medical questions are similar.
Maryland Starts Outside the Ordinary Trial Court Process
Maryland has a distinctive procedural system for healthcare malpractice claims.
Under Maryland Courts and Judicial Proceedings § 3-2A-04, a person asserting a claim against a healthcare provider for damages caused by a medical injury must first file the claim with the state’s Health Care Alternative Dispute Resolution Office.
That is an important distinction from simply drafting a malpractice complaint and filing it in circuit court.
Unless the claim involves only lack of informed consent, the claimant generally must also file a certificate from a qualified expert within 90 days after filing the claim. The certificate must address both a departure from the applicable standard of care and whether that departure approximately caused the alleged injury.
An expert report must accompany the certificate.
Houlon Berman’s own discussion of medical malpractice claims reflects why expert review plays such an important role: a bad medical outcome by itself does not establish that a healthcare provider violated the legal standard of care.
In a birth-injury case, the certificate requirement can therefore force an early evaluation of the medical theory behind the case.
Maryland’s Arbitration System Does Not Necessarily Mean the Case Will Be Arbitrated
The name “Health Care Alternative Dispute Resolution Office” can create another misunderstanding.
Filing there does not necessarily mean a malpractice dispute will ultimately be decided through arbitration.
Maryland law permits arbitration to be waived. Under § 3-2A-06B, a claimant may generally elect to waive arbitration after filing the required certificate of qualified expert.
Once arbitration is waived under the statute, the plaintiff has 60 days to file the complaint and the election to waive arbitration in the appropriate circuit court or federal district court.
The result is a somewhat unusual sequence.
A Maryland malpractice case can begin in an administrative dispute-resolution system, satisfy the expert-certification requirement there, and then move into an ordinary trial court.
The Maryland Supreme Court has described the certificate requirement as a procedural prerequisite to pursuing the malpractice action. Failure to satisfy it correctly can lead to dismissal, although Maryland law provides specific extension and refiling rules in certain circumstances.
Pennsylvania Uses a Different Certificate-of-Merit Structure
Cross into Pennsylvania and the opening procedure changes.
Pennsylvania Rule of Civil Procedure 1042.3 applies when a lawsuit alleges that a licensed professional departed from an acceptable professional standard.
Instead of requiring the malpractice claim to begin in a separate health-claims office, Pennsylvania permits the civil action to be filed in court. The plaintiff’s attorney or an unrepresented plaintiff must then file a certificate of merit with the complaint or generally within 60 days after the complaint is filed.
One method of satisfying the rule is obtaining a written statement from an appropriately licensed professional establishing a reasonable probability that the defendant’s care fell outside acceptable professional standards and that the conduct caused the claimed harm.
The Pennsylvania Judiciary explains the certificate-of-merit requirement as a mechanism for ensuring that professional-liability claims have support from a properly qualified professional.
The purpose resembles Maryland’s expert-screening requirement, but the procedure is not the same.
The Difference Matters in Birth-Injury Cases With Multiple Defendants
Birth-injury litigation can make these procedural rules particularly important because the case may involve several healthcare professionals and institutions.
A claim could potentially concern an obstetrician, hospital, nursing staff, neonatal providers or other specialists. The relevant standard of care may differ among them.
Pennsylvania’s Rule 1042.3 contains specific provisions governing certificates when multiple defendants or theories of professional responsibility are involved.
Maryland likewise places substantive requirements on its qualified-expert certificate. Maryland appellate decisions have addressed whether a certificate adequately identifies the healthcare providers alleged to have breached the standard of care and whether the certifying professional is legally qualified to offer the required opinions.
The certificate is therefore not simply a formality in either jurisdiction.
It helps define the professional-negligence theory that will eventually have to be supported by admissible evidence.
Where the Family Lives Does Not Automatically Determine the Procedure
Interstate medical care can complicate the picture.
A Maryland family might travel to Philadelphia for specialized maternal-fetal treatment or delivery. A Pennsylvania resident might receive part of prenatal care in Maryland before delivering elsewhere.
After an injury, it can be tempting to assume that the law of the family’s home state controls the case.
That is not necessarily correct.
Questions involving jurisdiction, venue, applicable substantive law and procedural requirements can depend on where treatment occurred, which healthcare providers are defendants, where those providers operate and other facts surrounding the claim.
The analysis can become particularly important when alleged negligence occurred over a period of time rather than during one isolated event.
Prenatal management might occur in one jurisdiction, delivery in another and neonatal treatment somewhere else.
Determining what conduct allegedly caused the injury can therefore affect more than the medical theory. It can influence which state’s legal system becomes important.
Expert Review Comes Before the Courtroom Battle
Maryland and Pennsylvania illustrate two different procedural approaches to the same underlying concern.
Medical-malpractice lawsuits usually involve questions that cannot be resolved simply by looking at the outcome.
As Houlon Berman has discussed in its broader explanation of what counts as medical malpractice, a complication or unsuccessful result is not automatically negligence. The issue is whether the provider departed from the applicable standard of care and whether that departure caused injury.
Birth-injury litigation magnifies that distinction because the evidence can include prenatal records, fetal monitoring strips, delivery notes, imaging, neurological findings and long-term developmental assessments.
The states may disagree about the procedural doorway through which that evidence reaches court.
The need to develop a supportable medical theory, however, comes much earlier.
Similar Injuries Can Follow Different Legal Paths
For families, the important lesson is that “medical malpractice” is not a single national procedure.
A Maryland case generally begins with the Health Care Alternative Dispute Resolution Office and a qualified-expert certificate. A Pennsylvania professional-liability case follows the state’s civil court process and its separate certificate-of-merit rule.
Neither framework can be understood simply by looking at where the injured child now lives.
When medical treatment crosses state lines, identifying where the allegedly negligent care occurred and which providers were involved can become one of the first legal questions not an administrative detail addressed after the lawsuit begins.
This article provides general information about Maryland and Pennsylvania medical-malpractice procedure and is not legal advice for an individual case.