Imprecise Record-Keeping May Disqualify Experts in Maryland Medical Malpractice Cases Under the Twenty Percent Rule

Retaining legally qualified experts to testify in your medical malpractice case is a crucial part of a successful claim. The Court of Special Appeals of Maryland discussed some of these requirements in a recent medical malpractice case, Streaker v. Boushehri (Md. Ct. Spec. App. Sept. 28, 2016).medical malpractice

In Streaker, the plaintiff brought a negligence and breach of contract action against a nurse midwife and her practice. The lower court granted the defendant’s motion to exclude the plaintiff’s expert testimony, finding that the expert devoted more than 20 percent of his professional activity to testifying in personal injury claims. The plaintiff appealed that decision to the higher court.

To file a medical malpractice action in Maryland, a plaintiff must initially file a certificate of a qualified expert, attesting that the defendant departed from the standard of care and that the departure proximately caused the alleged injury to the plaintiff. In medical malpractice cases, a qualified expert is not only measured by education, experience, and expertise, pursuant to Maryland Rule 5-702, but also by an additional statutory threshold. Commonly referred to as the “Twenty Percent Rule,” it provides that qualified experts may not devote annually more than 20 percent of their professional activities to activities that directly involve testimony in personal injury claims.

In determining whether an expert is qualified under this rule, the court must identify activities that directly involve testimony in personal injury claims, such as the time the doctor spends in court, in depositions, and in preparation to testify, time spent responding to interrogatories and other forms of discovery, reviewing notes and other materials, preparing reports, and conferring with attorneys, and time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor. The court divides that time by the expert’s professional activities, which are those that contribute to and involve the individual’s active participation in the profession to which he or she belongs.

In Streaker, the appeals court held that the plaintiff had the burden to prove that her expert was qualified. In reviewing the record, which the appeals court described as messy, disputed, and incomplete, it found that the trial court made a reasonable calculation in determining that the expert’s time devoted to personal injury claims was greater than 20 percent of his total professional activities. In particular, the appeals court noted that the trial court was not presented with detailed records of the expert’s activities during the relevant period and had to resolve discovery disputes over records the doctor had and hadn’t produced. This led the trial court to assess the relative credibility of the evidence and the doctor’s testimony regarding it, which the appeals court upheld.

The appeals court went on to explain that while experts aren’t required to maintain compulsive, tenth-of-an-hour timesheets to satisfy the Twenty Percent Rule, in Streaker, the uncertainty surrounding the nature and extent of the plaintiff’s expert’s activities due to less than adequate record-keeping or failing to provide records risks a finding that he’s not qualified. Accordingly, the appeals court held that it was within the circuit court’s discretion to find that the plaintiff’s expert was not qualified under the Twenty Percent Rule.

At the Maryland firm of Foran & Foran, P.A., our medical malpractice attorneys have the resources and skills necessary to bring your personal injury claim. With dedication and experience, we provide trusted legal representation to victims hurt in motor vehicle collisions, faulty medical procedures, and other instances of negligence. To learn more about pursuing damages through an injury claim, contact our law office by phone at (301) 441-2022 or online and schedule an appointment.

More Blog Posts:

Maryland Court of Special Appeals Rules in Medical Malpractice Case, Maryland Personal Injury Blog, published June 24, 2015

Maryland Court Denies Expert Medical Testimony in Negligence Claim, Maryland Personal Injury Blog, published June 14, 2016