Canton Harbor Healthcare v. Robinson

Canton Harbor Healthcare Center, Inc. v. Felicia Robinson, et al., No. 22, September

Term, 2024. Opinion by Biran, J.

HEALTH CARE MALPRACTICE CLAIMS ACT – CERTIFICATE OF A

QUALIFIED EXPERT SUBMITTED BY A REGISTERED NURSE –

PROXIMATE CAUSE – PRESSURE ULCERS – Under the Health Care Malpractice

Claims Act (the “HCMCA” or the “Act”), unless the sole issue in a claim is lack of

informed consent, a claimant must file a “certificate of a qualified expert … attesting to

departure from standards of care, and that the departure from standards of care is the

proximate cause of the alleged injury[.]” Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 3-

2A-04(b)(1)(i)1 (1974, 2020 Repl. Vol.). A plurality of the Supreme Court of Maryland

held that, where a patient was previously diagnosed as having developed a pressure ulcer

at a skilled nursing facility, a registered nurse may be qualified to attest in a certificate that

a breach of the applicable standards of nursing care at the facility proximately caused the

pressure ulcer. A registered nurse who relies on a pre-existing diagnosis does not make a

diagnosis concerning the injury itself in a certificate filed under the HCMCA. Rather, the

nurse accepts the accuracy of the pre-existing diagnosis made by another health care

provider(s). A registered nurse does not exceed the bounds of nursing practice when the

nurse opines in a certificate that a departure from the standards of nursing care is the

proximate cause of a previously diagnosed pressure ulcer that developed while the patient

resided at a skilled nursing facility.

HEALTH CARE MALPRACTICE CLAIMS ACT – CERTIFICATE OF A

QUALIFIED EXPERT SUBMITTED BY A REGISTERED NURSE – PEER-TO-

PEER REQUIREMENT – The HCMCA contains a peer-to-peer requirement with

respect to a “health care provider” who signs a certificate of a qualified expert: such a

“health care provider … [s]hall 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[.]” CJP § 3-2A-02(c)(2)(ii)1A. A registered nurse is included in the

HCMCA’s definition of a “health care provider.” Id. § 3-2A-01(f)(1). The Supreme Court

of Maryland held that a registered nurse meets the HCMCA’s peer-to-peer requirement to

the extent the nurse attests to alleged breaches of standards of nursing care. A nurse does

not meet the peer-to-peer requirement to the extent the nurse attests to the standard of care

applicable to a physician and to a physician’s alleged departure from that standard of care.

Circuit Court for Baltimore City

Case No.: 24-C-22-001200 MM

Argued: January 7, 2025

IN THE SUPREME COURT

OF MARYLAND

No. 22

September Term, 2024

CANTON HARBOR HEALTHCARE

CENTER, INC.

v.

FELICIA ROBINSON, ET AL.

Fader, C.J.

Watts

Booth

Biran

Gould

Eaves

Killough,

JJ.

Opinion by Biran, J.

Watts, J., concurs.

Booth, Eaves, and Killough, JJ.,

concur and dissent.

Pursuant to the Maryland Uniform Electronic Legal Filed: July 29, 2025

Materials Act (§§ 10-1601 et seq. of the State

Government Article) this document is authentic.

2025.07.29

10:37:39 -04'00'

Gregory Hilton, Clerk

Under Maryland’s Health Care Malpractice Claims Act, a person who has a claim

against a health care provider for damage due to a medical injury must go through an

arbitration process. As part of that process, unless the sole issue in the claim is lack of

informed consent, the claimant must file a “certificate of a qualified expert … attesting to

departure from standards of care, and that the departure from standards of care is the

proximate cause of the alleged injury[.]” Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 3-

2A-04(b)(1)(i)1 (1974, 2020 Repl. Vol.). In this case, we consider whether a registered

nurse may be qualified to attest to these matters in a claim against a skilled nursing facility

for negligently allowing a patient to develop pressure ulcers.

After receiving treatment for a stroke, Everett Robinson was transferred to Canton

Harbor Healthcare Center, Inc. d/b/a FutureCare-Canton Harbor (“Canton Harbor”), for

inpatient follow-up care. Canton Harbor is a skilled nursing facility. During his stay at

Canton Harbor, Mr. Robinson developed pressure ulcers, also known as decubitus ulcers

or, in more common parlance, bedsores. Mr. Robinson was transferred to other facilities,

where his pressure ulcers allegedly worsened. Mr. Robinson subsequently passed away.

Mr. Robinson’s widow, Felicia Robinson, along with Mr. Robinson’s surviving

children (collectively, the “Robinsons”) filed a Complaint in the Circuit Court for

Baltimore City against Canton Harbor. The Robinsons alleged that Canton Harbor’s

negligence allowed Mr. Robinson’s pressure ulcers to develop, spread, and become

infected, and that Canton Harbor’s negligence caused Mr. Robinson’s wrongful death.

During the arbitration process that preceded the filing of their Complaint in the circuit

court, the Robinsons filed a certificate of qualified expert signed by Anjanette Jones-Singh,

a registered nurse (the “Jones-Singh Certificate” or the “Certificate”). In the Certificate,

Nurse Jones-Singh attested that Canton Harbor “breached the standard of care and the

breach was the proximate cause of … the development of [Mr. Robinson’s] pressure

ulcers.” A report written by Nurse Jones-Singh was attached to and incorporated into the

Certificate. In her report, Nurse Jones-Singh provided more information concerning what

she described as the applicable standard of care, how Canton Harbor’s staff breached that

standard of care, and how those breaches caused Mr. Robinson’s pressure ulcers.

The circuit court granted Canton Harbor’s motion to dismiss the Complaint on the

ground that, as a registered nurse, Nurse Jones-Singh is not qualified to attest to the

proximate cause of Mr. Robinson’s pressure ulcers. The Robinsons appealed. The

Appellate Court of Maryland held that, in negligence cases alleging breach of nursing

standards for preventing and treating pressure ulcers, a registered nurse is not disqualified

per se to attest that failure to adhere to such standards proximately caused the plaintiff’s

injuries. Robinson v. Canton Harbor Healthcare Ctr., Inc., 261 Md. App. 560, 588 (2024).

The Appellate Court vacated the order of dismissal and remanded the case to the circuit

court for further proceedings.

We affirm the judgment of the Appellate Court. 1

1

Chief Justice Fader, Justice Watts, Justice Biran, and Justice Gould concur in the

mandate set forth at the conclusion of this opinion. Chief Justice Fader, Justice Biran, and

Justice Gould join this plurality opinion in full. Justice Watts has filed a separate concurring

opinion. Justice Booth, Justice Eaves, and Justice Killough would reverse the judgment of

the Appellate Court, for the reasons stated in a concurring and dissenting opinion authored

by Justice Booth.

2

I

Background

A. The Health Care Malpractice Claims Act

The Health Care Malpractice Claims Act (the “HCMCA” or the “Act”), CJP §§ 3-

2A-01 through 3-2A-10, “was enacted … as part of Maryland’s answer to what was

deemed to be the malpractice insurance crisis.” Bovey v. Exec. Dir., Health Claims Arb.

Off., 292 Md. 640, 641 (1982). “The purpose of the Act is to screen malpractice claims,

ferret out meritless ones, and, in theory, thereby lower the cost of malpractice insurance

and the overall costs of health care.” Adler v. Hyman, 334 Md. 568, 575 (1994).

To accomplish this purpose, the Act established the Health Care Alternative Dispute

Resolution Office (the “HCADRO”) as a unit in the Executive Department headed by a

Director (the “Director”) appointed by the Governor and confirmed by the Senate. CJP § 3-

2A-03(a). Any person “having a claim against a health care provider for damage due to a

medical injury” must initially file the claim with the Director and proceed with an

arbitration process. See id. § 3-2A-04(a)(1)(i). Under the Act, “[h]ealth care provider”

means:

a hospital, a related institution as defined in § 19-301 of the Health – General

Article, a medical day care center, a hospice care program, an assisted living

program, a freestanding ambulatory care facility as defined in § 19-3B-01 of

the Health – General Article, a physician, a physician assistant, an osteopath,

an optometrist, a chiropractor, a registered or licensed practical nurse, a

dentist, a podiatrist, a psychologist, a licensed certified social worker-

3

clinical, and a physical therapist, licensed or authorized to provide one or

more health care services in Maryland.

Id. § 3-2A-01(f)(1). “Medical injury” means “injury arising or resulting from the rendering

or failure to render health care.” Id. § 3-2A-01(g).

After a claim against a health care provider is filed with the Director, the Director

must cause a copy of the claim to be served upon the health care provider. Id. § 3-2A-

04(a)(1)(ii). The health care provider must then file a response with the Director and serve

a copy on the claimant and on all other health care providers named in the response. Id.

§ 3-2A-04(a)(1)(iii).

Unless the sole issue in the claim is lack of informed consent, the claimant 2 must

file a “certificate of a qualified expert with the Director attesting to departure from

standards of care, and that the departure from standards of care is the proximate cause of

the alleged injury, within 90 days from the date of the complaint[.]” Id. § 3-2A-

04(b)(1)(i)1. A “report of the attesting expert” must be attached to the certificate. Id. § 3-

2A-04(b)(3)(i). If a claimant fails to file the required certificate, the claim “shall be

2

The Act requires a “claimant or plaintiff” to file a certificate of a qualified expert.

CJP § 3-2A-04(b)(1)(i)1. After going through the arbitration process and filing a claim in

court, a plaintiff in some circumstances must file another certificate of a qualified expert.

See id. § 3-2A-06B(g) (“After the filing of an election to waive arbitration under this

section, if a party joins an additional health care provider as a defendant in an action, the

party shall file a certificate of qualified expert required by § 3-2A-04(b) of this subtitle

with respect to the additional health care provider.”); Retina Grp. of Washington, P.C. v.

Crosetto, 237 Md. App. 150, 171-72 (2018) (“The Act specifically provides a vehicle by

which a defendant who was not named in the arbitration proceeding may be joined, and

that procedure requires that the plaintiff file a certificate identifying the new defendant and

specifying the applicable standard of care and that the defendant breached it, causing the

plaintiff’s injuries.”). For convenience, we refer only to a “claimant” when describing the

provisions of the Act that relate to the certificate.

4

dismissed, without prejudice[.]” Id. § 3-2A-04(b)(1)(i)1. In lieu of dismissing the claim or

action, the chairman of the arbitration panel or the court “shall grant an extension of no

more than 90 days for filing the certificate” if “[t]he limitations period applicable to the

claim or action has expired” and “[t]he failure to file the certificate was neither willful nor

the result of gross negligence.” Id. § 3-2A-04(b)(1)(ii).

A claim may be adjudicated in favor of the claimant on the issue of liability “if the

defendant disputes liability and fails to file a certificate of a qualified expert attesting to

compliance with standards of care, or that the departure from standards of care is not the

proximate cause of the alleged injury,” within 120 days of being served with the claimant’s

certificate. Id. § 3-2A-04(b)(2)(i). Like the claimant’s certificate, a defendant’s certificate

must attach a report of the attesting expert. Id. § 3-2A-04(b)(3)(i). “Discovery is available

as to the basis of the certificate” submitted both by the claimant and the defendant. Id. § 3-

2A-04(b)(3)(ii).

A “health care provider who attests in a certificate of a qualified expert … may not

have devoted more than 25% of the expert’s professional activities[3] to activities that

directly involve testimony in personal injury claims during the 12 months immediately

before the date when the claim was first filed.” Id. § 3-2A-04(b)(4)(ii). 4 Once a health care

provider meets this requirement (commonly referred to as the “25 percent rule”), “the

3

“[P]rofessional activities” means “all activities arising from or related to the health

care profession.” CJP § 3-2A-04(b)(4)(i).

4

This requirement is also applicable to a health care provider who testifies in

relation to a proceeding before an arbitration panel or a court concerning compliance with

or departure from standards of care. CJP § 3-2A-04(b)(4)(ii).

5

health care provider shall be deemed to be a qualified expert” for the purpose of the 25

percent rule “during the pendency of the claim.” Id. § 3-2A-04(b)(4)(iii).

In addition, the HCMCA effectively requires a peer-to-peer relationship between

the defendant and the attesting expert:

In addition to any other qualifications, a health care provider who attests in

a certificate of a qualified expert … concerning a defendant’s compliance

with or departure from standards of care [s]hall 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[.]

Id. § 3-2A-02(c)(2)(ii)1. 5 If the defendant is board certified in a specialty, the attesting

health care provider must be board certified in the same or a related specialty as the

defendant. Id. § 3-2A-02(c)(2)(ii)1B. 6

A party may not serve as a party’s certificate expert, and the certificate may not be

signed by a party, an employee or partner of a party, or an employee or stockholder of any

professional corporation of which the party is a stockholder. Id. § 3-2A-04(b)(7).

After the exchange of certificates, the Director and the parties engage in statutorily

defined steps to select an arbitration panel. See id. § 3-2A-04(c) through (e). At any time

5

Like the 25 percent rule, this peer-to-peer requirement is also applicable to a health

care provider who testifies in relation to a proceeding before an arbitration panel or a court

concerning compliance with or departure from standards of care. CJP § 3-2A-04(c)(2)(ii)1.

6

The board certification requirement does not apply if either: (1) the defendant was

providing care or treatment to the plaintiff unrelated to the area in which the defendant is

board certified, CJP § 3-2A-02(c)(2)(ii)2A; or (2) the health care provider taught medicine

in the defendant’s specialty or a related field of health care. Id. § 3-2A-02(c)(2)(ii)2B.

6

before the hearing of a claim with the HCADRO, the parties may agree mutually to waive

arbitration of the claim. Id. § 3-2A-06A(a). Arbitration may also be waived by the claimant

or any defendant unilaterally after the claimant has filed their certificate. Id. § 3-2A-06B(a)

through (c).

Whether arbitration is waived mutually or unilaterally, within 60 days of the election

to waive arbitration, the plaintiff must file a complaint with the appropriate circuit court or

United States District Court. Id. §§ 3-2A-06A(c)(1) & 3-2A-06B(f)(1). No later than 15

days after the date that discovery in the lawsuit is required to be completed,

a party shall file with the court a supplemental certificate of a qualified

expert, for each defendant, that attests to:

(i) The certifying expert’s basis for alleging what is the specific standard of

care;

(ii) The certifying expert’s qualifications to testify to the specific standard of

care;

(iii) The specific standard of care;

(iv) For the plaintiff:

1. The specific injury complained of;

2. How the specific standard of care was breached;

3. What specifically the defendant should have done to meet the

specific standard of care; and

4. The inference that the breach of the standard of care proximately

caused the plaintiff’s injury; and

(v) For the defendant:

1. How the defendant complied with the specific standard of care;

2. What the defendant did to meet the specific standard of care; and

7

3. If applicable, that the breach of the standard of care did not

proximately cause the plaintiff’s injury.

Id. § 3-2A-06D(b)(1). In addition, “[t]he facts required to be included in the supplemental

certificate of a qualified expert shall be considered necessary to show entitlement to relief

sought by a plaintiff or to raise a defense by a defendant.” Id. § 3-2A-06D(b)(3). As is the

case with respect to an initial certificate, a party may not serve as a party’s supplemental

certifying expert, and the supplemental certificate may not be signed by a party, an

employee or partner of a party, or an employee or stockholder of any professional

corporation of which the party is a stockholder. Id. § 3-2A-06D(e).

B. Mr. Robinson’s Stay at Canton Harbor

According to the Complaint that the Robinsons filed in the circuit court, Mr.

Robinson “came under the treatment and care of [Canton Harbor] after being transferred

from Johns Hopkins Hospital for follow up care due to a stroke.” The Complaint further

alleged that Mr. Robinson “developed left leg ulcers which were brought to the attention

of the facility … which should have been properly treated and care[d] for.” However,

according to the Complaint, Mr. Robinson’s “bedsores” were allowed to develop and

spread, and the “areas became infected.” Mr. Robinson allegedly was transferred from

Canton Harbor and received further treatment and care for his condition at other facilities.

However, the Complaint alleges, Mr. Robinson’s condition worsened, and he became

septic and died.

8

C. The Jones-Singh Certificate and Attached Report

The Robinsons filed a claim against Canton Harbor with the Director, which was

assigned case number 2021-145. On September 10, 2021, the Robinsons filed the Jones-

Singh Certificate in the HCADRO. In the Certificate, Nurse Jones-Singh attested that she

is “familiar with and knowledgeable of the standards of care applicable to the treatment

and care of an individual under the circumstances of the treatment and care as provided to

[Mr.] Robinson in this matter.” Nurse Jones-Singh further attested that she had reviewed

“the pertinent medical records pertaining to [Mr. Robinson’s] treatment and care” and, that

in her opinion “to a reasonable degree of medical certainty,” 7 Canton Harbor “breached the

standard of care and the breach was the proximate cause of Mr. Robinson’s injuries,” i.e.,

“the development of his pressure ulcers.” Nurse Jones-Singh further stated that she

incorporated into the Certificate her report dated September 7, 2021 (the “Report”).

The 19-page Report opened with an overview of Mr. Robinson’s experience at

Canton Harbor, which began with Mr. Robinson’s admission on August 16, 2018, and

ended with his discharge from the facility on January 5, 2019. Nurse Jones-Singh stated

that when Mr. Robinson was admitted to Canton Harbor, he was “completely dependent

for care and was unable to communicate effectively.” He was unable to move

independently and relied on staff “to turn and reposition him, assist him with ADL care,[8]

7

As discussed below, attesting experts need not assert in their certificates that they

hold their opinions to a reasonable degree of certainty or probability. See Kearney v.

Berger, 416 Md. 628, 652-53 (2010).

8

Nurse Jones-Singh did not say in the Report what “ADL care” refers to. We

understand that ADL is an acronym for “activities of daily living,” which are defined as

9

provide him with nutrition, and anticipate his needs.” According to the Report, during his

stay at Canton Harbor, Mr. Robinson “developed pressure ulcers to his right buttock and

left buttock, which were then merged into a sacral ulcer.”

The Report then listed the records that Nurse Jones-Singh reviewed, 9 Mr.

Robinson’s admitting medical diagnoses, 10 and the medications ordered for Mr. Robinson

upon admission to Canton Harbor. Nurse Jones-Singh noted that Mr. Robinson “was not

started on Eliquis until September 11, 2018, nearly a month after being admitted at …

Canton Harbor[.]” Nurse Jones-Singh further stated that the delay in ordering Eliquis, an

anti-coagulant, “led to a decrease in Mr. Robinson’s tissue perfusion,” which she linked to

his subsequent development of arterial ulcers at a different facility.

The Report then chronicled Mr. Robinson’s experience at Canton Harbor from his

initial assessment to developing pressure ulcers. Nurse Jones-Singh averred that Mr.

Robinson was admitted without pressure ulcers, according to the initial assessment

“basic routine tasks that most healthy individuals can perform without assistance. These

activities include personal care tasks such as eating, dressing, bathing, toileting, managing

continence, and transferring (moving from 1 position to another).” Peter F. Edemekong,

Deb L. Bomgaars, Sukesh Sukumaran, and Caroline Schoo, Activities of Daily Living,

National Center for Biotechnology Information, available at https://perma.cc/64GE-FME3.

9

These records included an admission assessment, subsequent skin assessments,

nutritional assessment, “MDS” (which stands for “Minimum Data Set”), care plans,

physician’s progress notes, nurse practitioner’s progress notes, and wound evaluations.

10

These admitting diagnoses included, among other things, acute embolism, acute

laryngotracheitis, altered mental status, aphasia (difficulty speaking), atherosclerotic heart

disease, cerebral infarction, cerebrovascular disease, dysphagia (difficulty swallowing),

hypertension, hemiplegia (paralysis to one side of the body), hyperlipidemia, seizures, and

tachycardia.

10

conducted by Tracey Tralany, a registered nurse, but was determined to be at high risk of

developing pressure ulcers per the “initial Braden scale” score of 11. Based on this Braden

scale result, Canton Harbor implemented several orders: float heels; turn and reposition;

barrier cream; pressure reducing mattress; and pressure reducing cushion. Subsequent

Braden scale assessments on August 28, 2018, and September 11, 2018, placed Mr.

Robinson at high risk and then very high risk for developing pressure ulcers, but Mr.

Robinson had already developed both a right buttock ulcer and a left buttock ulcer by

August 20, 2018 – four days after his admission to Canton Harbor.

In addition to the buttock pressure ulcers, Mr. Robinson developed a sacral ulcer,

which was initially observed as a stage 2 ulcer and declined to a stage 3 ulcer, where it

needed a topical debriding agent for which Santyl was ordered. According to the Report,

when the skin impairment that developed into the sacral ulcer was initially observed on

August 20, 2018, it was incorrectly classified as incontinence-associated dermatitis.

A Canton Harbor weekly skin report dated September 28, 2018, noted that Mr.

Robinson had a suspected deep tissue injury (“SDTI”) surrounding his sacral ulcer.

According to Nurse Jones-Singh, an SDTI is damage to underlying skin “only caused by

friction and/or shearing. Therefore, … Canton Harbor directly caused the SDTI to the

sacrum noted on Mr. Robinson as there is no other etiology for this type of wound.”

Nurse Jones-Singh observed that, on October 8, 2018, Mr. Robinson developed

excoriation to his perineal area. According to the Report, this condition is “more than likely

to develops [sic] with prolonged exposure to both urine/fecal matter,” and “would have

been prevented if Barrier Cream was being used with each incontinent change.”

11

The Report then analyzed a September 13, 2018 nutritional assessment. According

to Nurse Jones-Singh, “Mr. Robinson had been noted with hypoalbuminemia, indicative of

malnutrition, and needed a specific amount of protein and calories per day to compensate

for … noted weight loss and low protein levels.” Nurse Jones-Singh further noted that Mr.

Robinson “never had any supplements ordered for wound healing such as Vitamin C, Zinc

Sulfate, or Prosource.”

The Report also provided information about Mr. Robinson’s assessments by a

Canton Harbor primary care physician, Dr. Viray Shah. Dr. Shah conducted Mr.

Robinson’s initial physical examination on August 17, 2018, as well as eight subsequent

examinations between August and December 2018. According to the Report, Dr. Shah did

not mention Mr. Robinson’s pressure ulcers in any of his assessments.

Based on her review of Mr. Robinson’s medical records, Nurse Jones-Singh opined

in the Report “to a reasonable degree of nursing certainty” that Canton Harbor “breached

the standard of care for skilled nursing facilities/post-acute rehabilitation.” She attested that

“[t]he facts and clinical analysis in this report represent a deviation from the acceptable

standard of nursing care.” According to the Report, “[t]his includes violations of federal

and state regulations, which are part of the acceptable standard of care and also [Canton

Harbor’s] own policies and procedures, which are part of the acceptable standard of care.”

The federal regulations upon which the Report relied in identifying the standard of care

were 42 C.F.R. §§ 483.21 and 483.25. According to Nurse Jones-Singh, these federal

regulations required Canton Harbor to develop a comprehensive care plan for each resident

and to take various other steps to prevent avoidable pressure ulcers, and Canton Harbor

12

failed to abide by these regulations with respect to Mr. Robinson. Nurse Jones-Singh

opined that Canton Harbor’s “statutory breaches” caused Mr. Robinson to develop the

injuries to his left buttock and right buttock, as well as the sacral ulcer and SDTI.

Specifically, Nurse Jones-Singh opined in the Report that Canton Harbor departed

from the standard of nursing care through: “[f]ailure to prevent, monitor, document,

manage, and treat skin injury”; “[f]ailure to provide personal hygiene such that actual harm

occurred”; “[f]ailure to train and monitor staff compliance related to: Routine skin and pain

assessments, ITD[11] communication and coordination of care, and care of blistering (lower

leg extremity) skin”; “[f]ailure to provide adequate nutrition”; “[f]ailure to address

abnormal labs”; and “[f]ailure to accurately complete MDS assessments driving the care

planning process[;]” i.e., “[f]ailing to write and maintain up to date care plan interventions

that support skin breakdown prevention [and] healing.”

Nurse Jones-Singh also opined concerning Dr. Shah’s failure to order pain

medication for Mr. Robinson. According to the Report, “[t]he standard of practice would

require that a patient/resident who has multiple wounds or stage 3-4 wounds receive pain

medication 30 minutes to an hour prior to dressing changes.” Because Dr. Shah failed to

11

Nurse Jones-Singh did not say what “ITD” stands for in the Report. We have seen

reference in wound care-related literature to “ITD” as an acronym for intertriginous

dermatitis. See Holly M. Hovan, Intertriginous Dermatitis: Risk Factors, Diagnosis,

Prevention, and Treatment, WOUND SOURCE (Oct. 7, 2021), available at

https://perma.cc/J9HM-G9LQ. “[A]lso referred to as intertrigo, [ITD] is an inflammatory

condition that affects opposing skin surfaces and can occur anywhere on the body where

two surfaces are in contact.” Id.

13

prescribe pain medication for Mr. Robinson, Nurse Jones-Singh opined that Mr. Robinson

“suffered unnecessary pain during his dressing changes[.]”

According to Nurse Jones-Singh, given Mr. Robinson’s high-risk assessments, a

“potential for impaired skin integrity care plan should have been completed on admission

or no later than 72 hours after,” but was only implemented on September 17, 2018, one

month after admission. Further, Nurse Jones-Singh attested that a nutritional deficit care

plan, a weight loss care plan, and a “Pain r/t Wounds” care plan were required under the

standard of care, but Canton Harbor did not develop any of these care plans. Nurse Jones-

Singh also attested that “several breaches occurred causally related to Mr. Robinson’s

decline in health such that harm occurred including … [c]ompleting Braden Scales

correctly to proactively adapt the careplanning process based on accurate assessment

findings” and “[c]onduct[ing] a comprehensive and routine pain assessment.” In addition,

Nurse Jones-Singh opined that “the facility failed to meet Mr. Robinson’s nutritional

requirements thereby contributing to his skin breakdown.”

D. The Circuit Court Proceedings

Canton Harbor elected to waive arbitration under CJP § 3-2A-06B, and the case

accordingly was transferred from the HCADRO. The Robinsons subsequently filed their

Complaint against Canton Harbor in the Circuit Court for Baltimore City. Count One,

brought by Mrs. Robinson in her individual capacity and as the personal representative of

Mr. Robinson’s estate, alleged negligence based on Canton Harbor having allowed Mr.

Robinson to develop pressure ulcers that spread and became infected. The negligence claim

further alleged that, after Mr. Robinson was transferred from Canton Harbor, “this

14

condition worsened and he became septic and died.” Count Two, brought by Mrs.

Robinson and Mr. Robinson’s surviving children, alleged wrongful death.

Canton Harbor moved to dismiss the Complaint on the ground that, as a registered

nurse, Nurse Jones-Singh is not qualified to attest to the proximate cause of Mr. Robinson’s

medical injuries. Canton Harbor observed that, under Maryland law, the practice of

registered nursing includes making a “nursing diagnosis.” See Md. Code Ann., Health Occ.

(“HO”) § 8-101(o)(1) (1981, 2021 Repl. Vol., 2024 Supp.). Canton Harbor also noted in

its motion that Maryland regulations define “[n]ursing diagnosis” as “a description of the

actual or potential, overt or covert health problems which registered nurses are licensed to

treat.” COMAR 10.27.09.01B(16) (emphasis added by Canton Harbor). Canton Harbor

further observed, by way of comparison, that “[p]ractice medicine” is defined under

Maryland law as “to engage, with or without compensation, in medical: (i) Diagnosis;

(ii) Healing; (iii) Treatment; or (iv) Surgery.” HO § 14-101(o)(1) (emphasis added by

Canton Harbor). Because “medical diagnosis” is not defined by statute or regulation,

Canton Harbor pointed to dictionary definitions of “diagnosis,” including two of Merriam-

Webster’s definitions of the term: “the art or act of identifying a disease from its signs and

symptoms,” and “investigation or analysis of the cause or nature of a condition, situation,

or problem.” 12 Thus, Canton Harbor argued, a “medical diagnosis” means the

determination of medical conditions, as well as the cause or nature of such conditions –

tasks that are outside of the scope of a registered nurse’s practice.

12

Merriam-Webster, Diagnosis, available at https://perma.cc/6F2Z-CSG8.

15

Opposing the motion to dismiss, the Robinsons noted that they had not brought a

claim against a physician. Rather, because their claim is against Canton Harbor – a skilled

nursing facility – Nurse Jones-Singh “is providing peer to peer review,” as required under

the Act. According to the Robinsons, if the General Assembly had intended that only

physicians opine on the issue of proximate causation, it specifically would have said so in

CJP § 3-2A-02(c)(2)(ii), rather than referring more generally to “a health care provider,”

which, as defined in CJP § 3-2A-01(f)(1), includes a registered nurse. The Robinsons also

argued that, if the court were to rule that Nurse Jones-Singh was not qualified to attest to

proximate causation, good cause existed to grant the Robinsons a 90-day extension of time

to secure a certificate from another expert.

The Robinsons attached an affidavit of Nurse Jones-Singh to their opposition to the

motion to dismiss. In her affidavit, Nurse Jones-Singh averred that she had been a

registered nurse for more than 16 years, over which time she had “routinely perform[ed]

skin evaluations on [her] patients, identified pressure ulcers, classified the staging of each

ulcer and proposed a treatment and care plan to heal the ulcer.” She stated that she had

made these determinations for over 500 patients. At the time she signed her affidavit, Nurse

Jones-Singh was “a long-term care Director of Nursing and Resident Assessment

Coordinator.” Previously, she worked as a wound care nurse where, according to Nurse

Jones-Singh, she “routinely diagnosed the cause of pressure ulcers.”

The circuit court held a hearing on Canton Harbor’s motion to dismiss, in the course

of which the Robinsons abandoned their wrongful death claim. The court determined that,

as a registered nurse, Nurse Jones-Singh is qualified to attest to the standard of care for

16

nurses and to the departure from that standard of care. However, the court concluded that

a registered nurse “cannot make a medical diagnosis, and therefore, cannot determine a

medical condition nor the cause of a condition.” Thus, the circuit court ruled, Nurse Jones-

Singh may not attest in a certificate that a departure from the standard of care is the

proximate cause of Mr. Robinson’s alleged injury. The court further determined that the

Robinsons had not shown good cause for an extension of time to secure a certificate from

another expert on the issue of proximate causation. The court entered a written order

dismissing the Complaint.

E. Appeal

Mrs. Robinson 13 appealed the dismissal of the Complaint to the Appellate Court of

Maryland, which reversed. The Appellate Court held that “under Maryland’s statutory and

regulatory framework governing nursing services at a skilled nursing facility like Canton

Harbor, a [certificate] may be predicated on the attestation of a registered nurse that breach

of nursing standards for preventing and treating decubitus ulcers proximately caused the

ulcer injury alleged in the negligence complaint.” Robinson, 261 Md. App. at 583. The

Appellate Court reasoned that “Canton Harbor’s argument that ‘nursing diagnosis’ is

merely a ‘description of … health problems’ and therefore precludes nurses from opining

13

The brief urging affirmance of the Appellate Court’s judgment indicates that it

has been filed on behalf of “Felicia Robinson, et al. (the Respondents).” As noted above,

the Robinsons abandoned their wrongful death claim at the hearing on Canton Harbor’s

motion to dismiss. Thus, we agree with the Appellate Court that the viability of Count One

– the negligence claim brought by Mrs. Robinson alone – is the only live issue on appeal.

See Robinson, 261 Md. App. at 563 n.1. From this point forward, we will refer only to Mrs.

Robinson as the plaintiff in this case.

17

on proximate causation in all cases ignores how nursing diagnosis fits within the

regulations concerning standards of practice for registered nurses.” Id. at 585. Those

regulations “implicitly require[] registered nurses, acting within the scope of their duties,

to assess the probable cause of further injury if nursing intervention is unsuccessful.” Id.

Thus, the Appellate Court held that “in negligence cases alleging breach of nursing

standards for preventing and treating decubitus ulcers, a registered nurse is not disqualified

per se to attest that failure to adhere to such standards proximately caused the plaintiff’s

ulcer injury.” Id. at 588. The Appellate Court determined that the Jones-Singh Certificate

met the Act’s requirements. Id. at 590-91. The Appellate Court vacated the circuit court’s

judgment and remanded for further proceedings. Id. at 591-92. 14

Canton Harbor subsequently filed a petition for writ of certiorari, which we granted.

Canton Harbor Healthcare Ctr. v. Robinson, 488 Md. 386 (2024). We agreed to review

three questions, 15 which we have rephrased and condensed to two:

14

Because the Appellate Court concluded that Nurse Jones-Singh was qualified

under the Act to sign the Certificate, the Appellate Court did not address Mrs. Robinson’s

alternative argument that the circuit court erred in not granting an extension of time to file

an additional certificate on the issue of proximate causation signed by a different expert.

261 Md. App. at 591 n.11.

15

The three questions in Canton Harbor’s petition were:

1. Whether a registered nurse can be a “qualified expert” to attest “that

the departure from standards of care is the proximate cause of the

alleged injury” as required by CJP §3-2A-04(b)(1)(i), even though

offering a medical diagnosis is outside of the authorized scope of

nursing practice in Maryland.

18

1. Did the circuit court correctly conclude that Nurse Jones-Singh is not

qualified to attest in the Certificate that Canton Harbor’s alleged

departure from the applicable standard of care is the proximate cause

of Mr. Robinson’s pressure ulcers?

2. May a registered nurse attest in a certificate of qualified expert to the

standard of care applicable to a physician and to a physician’s alleged

departure from that standard of care?

We answer both questions in the negative.

II

Standard of Review

The sufficiency of a certificate of a qualified expert is a question of law that we

review de novo. See Carroll v. Konits, 400 Md. 167, 180 n.11 (2007); Jordan v. Elyassi’s

Greenbelt Oral & Facial Surgery, P.C., 256 Md. App. 555, 567 (2022).

III

Discussion

As it did below, Canton Harbor argues here that, although a registered nurse may

be qualified to attest to a breach in the standard of nursing care for preventing and treating

pressure ulcers, a registered nurse is not qualified to attest to the proximate cause of a

particular pressure ulcer. Canton Harbor also contends that Nurse Jones-Singh violated the

2. Whether a registered nurse can opine whether physicians wrongfully

failed to prescribe medicines or undertake appropriate treatment

plans[.]

3. Whether the Appellate Court improperly relied on federal regulations

governing Medicare/Medicaid funding of nursing facilities in

determining the qualifications of a registered nurse to give a medical

causation opinion.

19

Act’s peer-to-peer rule by attesting in the Certificate to the standard of care applicable to

Canton Harbor’s physicians and the physicians’ breaches of those standards of care.

Mrs. Robinson contends that an experienced registered nurse, such as Nurse Jones-

Singh, may provide an opinion on the cause of pressure ulcers in a certificate filed under

the Act.

Resolution of the parties’ competing contentions requires us to interpret pertinent

provisions of the Act and other statutes. The goal of statutory interpretation is to “ascertain

and effectuate the actual intent of the General Assembly in enacting the law under

consideration.” Matter of Collins, 468 Md. 672, 689 (2020). In conducting this inquiry,

“we begin with the plain language of the statute, and ordinary, popular understanding of

the English language dictates interpretation of its terminology.” Blackstone v. Sharma, 461

Md. 87, 113 (2018) (internal quotation marks and citations omitted). If the statutory

language is “unambiguous and clearly consistent with the statute’s apparent purpose, [the]

inquiry as to legislative intent ends ordinarily and we apply the statute as written, without

resort to other rules of construction.” Lockshin v. Semsker, 412 Md. 257, 275 (2010). We

“neither add nor delete language so as to reflect an intent not evidenced in the plain and

unambiguous language of the statute, and we do not construe a statute with forced or subtle

interpretations that limit or extend its application.” Id. (internal quotation marks and

citations omitted). Rather, we construe the statute “as a whole so that no word, clause,

sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Mayor

& Town Council of Oakland v. Mayor & Town Council of Mountain Lake Park, 392 Md.

301, 316 (2006). We do not “read statutory language in a vacuum, nor do we confine

20

strictly our interpretation of a statute’s plain language to the isolated section alone.”

Lockshin, 412 Md. at 275. “Rather, the plain language must be viewed within the context

of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the

Legislature in enacting the statute.” Id. at 276. We presume “that the Legislature intends

its enactments to operate together as a consistent and harmonious body of law, and, thus,

we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent

with the statute’s object and scope.” Id. To the extent there is ambiguity in statutory

language, we strive to resolve it by “searching for legislative intent in other indicia,

including the history of the legislation or other relevant sources intrinsic and extrinsic to

the legislative process.” Id. We also often review legislative history to determine whether

it confirms the interpretation suggested by our analysis of the statutory language. See, e.g.,

In re O.P., 470 Md. 225, 255 (2020). Further, we “check our interpretation against the

consequences of alternative readings of the text,” Bell v. Chance, 460 Md. 28, 53 (2018),

which “grounds the analysis.” In re O.P., 470 Md. at 255. Doing so helps us “avoid a

construction of the statute that is unreasonable, illogical, or inconsistent with common

sense,” Mayor & Town Council of Oakland, 392 Md. at 316; see also Bell, 460 Md. at 53

(explaining that, throughout the statutory interpretation process, “we avoid constructions

that are illogical or nonsensical, or that render a statute meaningless”).

We conclude that, where a patient was previously diagnosed as having developed a

pressure ulcer at a skilled nursing facility, a registered nurse who meets the peer-to-peer

requirement of CJP § 3-2A-02(c)(2)(ii)1A may attest in a certificate that a breach of the

applicable standards of nursing care at the facility proximately caused the pressure ulcer,

21

provided that the nurse’s opinion consists of a nursing diagnosis and does not address

medical causation. Here, according to the Report, Mr. Robinson was diagnosed by Canton

Harbor staff as suffering from pressure ulcers that he developed while a patient at Canton

Harbor. Nurse Jones-Singh meets the peer-to-peer requirement to the extent she attests to

alleged breaches of care by Canton Harbor’s nurses. She does not meet the peer-to-peer

requirement to the extent she attests to the standards of care applicable to Canton Harbor’s

physicians and to the physicians’ alleged departures from those standards of care.

A review of the Certificate and attached Report shows that Nurse Jones-Singh

attested to alleged breaches of care by Canton Harbor’s nurses and to those breaches having

proximately caused Mr. Robinson’s pressure ulcers. In so doing, Nurse Jones-Singh did

not make a medical diagnosis. Because the Certificate meets the requirements of the Act,

Mrs. Robinson’s negligence claim may go forward.

A. In Some Circumstances, a Registered Nurse May Attest in a Certificate That a

Breach of the Applicable Standard of Nursing Care Is the Proximate Cause of

a Pressure Ulcer.

1. A Registered Nurse Who Attests in a Certificate Concerning a Previously

Diagnosed Pressure Ulcer Does Not Exceed the Bounds of Nursing Practice.

As discussed above, the Act contemplates that a “health care provider” will “attest[]

in a certificate of a qualified expert … concerning a defendant’s compliance with or

departure from standards of care[.]” CJP § 3-2A-02(c)(2)(ii)1. Under the Act, a registered

nurse is a “health care provider.” Id. § 3-2A-01(f)(1). Thus, the plain language of the Act

demonstrates that a registered nurse may be a “qualified expert” who attests in a required

22

certificate “to departure from standards of care, and that the departure from standards of

care is the proximate cause of the alleged injury[.]” Id. § 3-2A-04(b)(1)(i)1.

Canton Harbor recognizes that a registered nurse, in some circumstances, may attest

to the applicable standards of nursing care and to the departure from those standards of

care. However, Canton Harbor draws the line at a registered nurse attesting that a departure

from the standards of nursing care is the proximate cause of a patient’s medical injuries.

According to Canton Harbor, allowing a registered nurse to attest to the proximate cause

of a medical injury would be tantamount to allowing a registered nurse to make a medical

diagnosis, which in turn would mean that the nurse is practicing outside the scope of their

nursing license. In the circumstances of this case, we disagree.

Two points are central to our analysis. First, where a patient has previously been

diagnosed with a particular medical injury by another health care provider, a registered

nurse who relies on that pre-existing diagnosis does not make a diagnosis concerning the

injury itself in a certificate filed under the Act. Rather, the nurse accepts the accuracy of

the pre-existing diagnosis made by another health care provider(s). A different situation

arises where a registered nurse purports to diagnose a medical condition or other medical

injury in the first instance in a certificate.

Second, a registered nurse does not exceed the bounds of nursing practice when the

nurse opines in a certificate that a departure from the standards of nursing care is the

proximate cause of a previously diagnosed pressure ulcer that developed while the patient

resided at a skilled nursing facility.

23

Maryland’s Nursing Practice Act defines “[p]ractice registered nursing” as

the performance of acts requiring substantial specialized knowledge,

judgment, and skill based on the biological, physiological, behavioral, or

sociological sciences as the basis for assessment, nursing diagnosis,

planning, implementation, and evaluation of the practice of nursing in order

to:

(i) Maintain health;

(ii) Prevent illness; or

(iii) Care for or rehabilitate the ill, injured, or infirm.

HO § 8-101(o)(1).

Maryland regulations set forth standards of care for registered nurses. See COMAR

10.27.09.02. Among other things, a nurse must collect client health data, including

physical, psychological, sociocultural, spiritual, cognitive, functional abilities,

developmental, economic, technology, and lifestyle data. COMAR 10.27.09.02A(2)(b).

Data collection must be “comprehensive, systematic, and ongoing.” COMAR

10.27.09.02A(6). “Relevant health status data, including changes, shall be documented in

an authorized record which is accessible and in a retrievable form.” COMAR

10.27.09.02A(7).

An important part of a nurse’s duties is to make a “nursing diagnosis,” when

appropriate. As Canton Harbor observes, Maryland regulations define “[n]ursing

diagnosis” as “a description of the actual or potential, overt or covert health problems

which registered nurses are licensed to treat.” COMAR 10.27.09.01B(16). But other

regulations make clear that arriving at a nursing diagnosis may require significant time,

effort, and expertise. A nurse must “analyze the assessment data[,]” COMAR

24

10.27.09.02B(1), “consider the options …, and make a determination as to whether the

selected options are appropriate for the needs of the client.” COMAR 10.27.09.02B(2)(a).

A nursing diagnosis must be “[d]erived in a complete, systematic, and ongoing manner

from the assessment of data,” “[v]alidated with the client, family, significant others, and

other members of the health care team, when possible,” and “[d]ocumented in a manner

that facilitates the determination of expected outcomes and plan of care.” COMAR

10.27.09.02B(2)(b). A nursing diagnosis must “identify the nature and extent of the client’s

health status, capabilities, and limitations.” COMAR 10.27.09.02B(2)(c).

Once a nurse makes a nursing diagnosis, the nurse’s work does not stop there.

Rather, a nurse is required to “identify expected outcomes individualized to the client.”

COMAR 10.27.09.02C(1). Such outcomes must, among other things, be “[d]erived in a

comprehensive, systematic, and ongoing manner from the diagnoses,” and “[d]irected

toward management of the client’s health problems.” COMAR 10.27.09.02C(2)(a)(i) and

(ii).

A nurse must then “develop a plan of care that prescribes interventions to attain

expected outcomes.” COMAR 10.27.09.02D(1). That plan, among other things, must be

“[i]ndividualized in a comprehensive, systematic and ongoing manner[.]” COMAR

10.27.09.02D(2)(a)(i). The nurse must then “implement the interventions identified in the

plan of care … [c]onsistent with the established plan of care[,]” among other criteria.

COMAR 10.27.09.02E. Finally, a nurse must “evaluate the client’s progress toward

attainment of outcomes.” COMAR 10.27.09.02F. That evaluation must be “systematic,

ongoing, and criterion based.” COMAR 10.27.09.02F(2)(a). Among other measurement

25

criteria, the nurse’s evaluation must use “[o]ngoing assessment data … to evaluate the

process of care and to revise the nursing diagnosis, outcomes, and the plan of care[,]”

COMAR 10.27.09.02F(2)(c), and “[t]he responses to interventions” must “be documented

and communicated to the client and other members of the health care team.” COMAR

10.27.09.02F(2)(f).

These regulations highlight the complexity of modern nursing – a practice that

extends far beyond a mere “description” of health problems. The practice of registered

nursing requires identifying and collecting data in a comprehensive and ongoing manner,

analyzing such data to create a nursing diagnosis that identifies the nature and extent of the

client’s health status, identifying expected outcomes, developing a plan of care that

prescribes interventions to attain expected outcomes, implementing the interventions, and

evaluating the client’s progress toward attainment of those outcomes.

In addition, federal Medicare and Medicaid regulations applicable to skilled nursing

and other long-term care facilities require such facilities, consistent with professional

standards of practice, to prevent pressure ulcers unless they are unavoidable, and to treat

existing pressure ulcers. See 42 C.F.R. § 483.25(b). 16 Indeed, federal regulations classify

16

42 C.F.R. § 483.25(b) provides:

Based on the comprehensive assessment of a resident, the facility must

ensure that—

(i) A resident receives care, consistent with professional standards of

practice, to prevent pressure ulcers and does not develop pressure ulcers

unless the individual’s clinical condition demonstrates that they were

unavoidable; and

26

“[t]reatment of extensive decubitus ulcers or other widespread skin disorder” as skilled

nursing services. Id. § 409.33(b)(6). 17 A Maryland statute governing quality assurance

programs in nursing homes similarly identifies “prevention of decubitus ulcers” as “nursing

care.” Md. Code Ann., Health-Gen. § 19-1410(b)(5)(ii) (1982, 2023 Repl. Vol.).

Identification, prevention, and treatment of pressure ulcers fall comfortably within

the scope of nursing care – especially in the context of skilled nursing facilities. And it is

at least an open question whether identifying the proximate cause of a pressure ulcer is

within the proper scope of rendering a nursing diagnosis and does not constitute or require

making a medical diagnosis. See Robinson, 261 Md. App. at 587 (“Because managing

decubitus ulcers constitutes the type of core ‘skilled nursing services’ that may be within

the expertise of a registered nurse,” a “registered nurse may be qualified to attest that breach

of applicable standards of nursing care for preventing and treating decubitus ulcers

proximately caused the plaintiff’s ulcer injury.”). 18 Thus, where a nursing diagnosis is

(ii) A resident with pressure ulcers receives necessary treatment and services,

consistent with professional standards of practice, to promote healing,

prevent infection and prevent new ulcers from developing.

17

Pertinent to the third question contained in its petition for certiorari, Canton

Harbor contends that the Appellate Court improperly determined that 42 C.F.R.

§ 483.25(b) and other federal regulations that Nurse Jones-Singh cited in her Report

establish the standard of care applicable to Canton Harbor. Canton Harbor is incorrect. The

Appellate Court did not conclude that these federal regulations establish the standards of

nursing care that apply to this case. Rather, the Appellate Court explained that the federal

regulations, in conjunction with the Maryland regulations we have discussed above,

demonstrate that managing pressure ulcers falls within the scope of skilled nursing

services. See Robinson, 261 Md. App. at 585-86. We agree with the Appellate Court.

The academic literature that Justice Booth discusses in her separate opinion, see

18

Concurring and Dissenting Op. of Booth, J., at 32-37, suggests that it is an open question

27

explicitly or implicitly claimed to suffice to opine concerning the proximate cause of a

pressure ulcer, a registered nurse may attest as to proximate causation in a certificate.

Because a registered nurse cannot render an opinion on medical causation, we add

the qualification that the patient’s pressure ulcer must have been previously diagnosed by

another qualified health care provider, unless the certifying registered nurse, in the course

of personally examining the patient, observed the wound and identified it as a pressure

ulcer. If a registered nurse knows (based on a pre-existing diagnosis) that the patient

developed a pressure ulcer while a resident of a skilled nursing facility, the nurse may be

qualified to attest in a certificate that a breach of the applicable standard of nursing care is

the proximate cause of the pressure ulcer. 19 This interpretation harmonizes the certificate

provisions of the HCMCA with the definition of “practice registered nursing” in the

Nursing Practice Act. See Lockshin, 412 Md. at 276 (explaining that this Court “presume[s]

that the Legislature intends its enactments to operate together as a consistent and

harmonious body of law”).

whether pressure ulcers can be identified through a nursing diagnosis as opposed to a

medical diagnosis. See also note 25 below.

19

The federal and Maryland regulations that the Appellate Court and we have cited

reflect that registered nurses at skilled nursing facilities who examine clients’ wounds are

expected to be able to identify those wounds that are pressure ulcers and to treat them

accordingly. If a nurse has not personally examined a patient and identified a wound as a

pressure ulcer in conjunction with making a nursing diagnosis, the nurse may not in the

first instance diagnose the wound as a pressure ulcer in a certificate or attached report,

which would constitute making a medical diagnosis.

28

2. In a Claim Against a Skilled Nursing Facility, a Registered Nurse May Be

Qualified Under CJP § 3-2A-02(c)(2)(ii)1A to Attest to Breaches of the

Applicable Standard of Care by Nurses at the Facility, but Not by Physicians.

As discussed above, the Act contains a peer-to-peer qualification requirement. That

is, a health care provider attesting in a certificate must 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 five years of the date of the alleged act

or omission giving rise to the cause of action. CJP § 3-2A-02(c)(2)(ii)1A.

Canton Harbor observes that Nurse Jones-Singh’s Certificate and Report “identify

nurses generally, individual nurses, and named and unnamed physicians whom she accuses

of breaching the standard of care.” Canton Harbor asserts that Nurse Jones-Singh is not

qualified under the peer-to-peer rule to attest that any named or unnamed physician at

Canton Harbor breached a physician’s standard of care. Canton Harbor therefore takes

issue with several of the Report’s contentions, including that: (1) Dr. Shah should have

prescribed pain medications for Mr. Robinson; (2) Dr. Shah failed to properly document

Mr. Robinson’s pressure ulcers; and (3) a physician should have prescribed Eliquis, an

anticoagulant, for Mr. Robinson earlier than it was actually prescribed. On this point, we

agree with Canton Harbor.

Although Canton Harbor is the defendant in this case, its alleged liability is

vicarious. That is, if Canton Harbor is liable for negligence in the care of Mr. Robinson,

that is because one or more of its agents was negligent. See Retina Grp. of Washington,

P.C. v. Crosetto, 237 Md. App. 150, 172 n.13 (2018) (“[A] health care provider agent need

29

not be sued individually for the agent’s principal to be liable under respondeat superior. It

is sufficient that the principal is sued.”). The fact that both physicians and registered nurses

treated Mr. Robinson at Canton Harbor does not mean that Nurse Jones-Singh is qualified

under CJP § 2-3A-02(c)(2)(ii)1A to attest to alleged breaches of the different standards of

care that apply to the physicians and nurses at Canton Harbor. Nurse Jones-Singh does not

have a peer-to-peer relationship with Dr. Shah or with any other physician who treated Mr.

Robinson at Canton Harbor. However, if Nurse Jones-Singh has the requisite qualifications

under CJP § 3-2A-02(c)(2)(ii)1A and otherwise qualifies to attest in a certificate under the

Act, then she may attest to breaches of the applicable standards of nursing care by Canton

Harbor’s nurses in their treatment of Mr. Robinson. 20

20

Nurse Jones-Singh’s Certificate and Report did not identify particular nurses who

allegedly breached the standards of nursing care at Canton Harbor. Where an expert is able

to identify in an initial certificate a specific health care provider whose departure from the

standard of care proximately caused the patient’s injury, the expert should identify that

person. See Carroll v. Konits, 400 Md. 167, 195-96 (2007). However, there may be

instances in which a certifying expert is unable to specifically identify the responsible

health care providers in an initial certificate. See Retina Grp. of Washington, 237 Md. App.

at 170-71 n.12 (“There may be situations in which, until discovery is undertaken, the

plaintiff cannot determine the name of a health care provider agent whose conduct is

implicated in causing the injury or death at issue. Until clarified in discovery, the health

care provider agent can be identified by position or role. Similarly, there may be situations

in which only through discovery does it become known that a particular health care

provider agent was involved in the care at issue at all.”). Where, as here, the certifying

expert attests to breaches of the standards of nursing care through omissions, it may well

be that the expert will be unable to specifically identify in an initial certificate the nurses

who failed to take the actions the expert believes caused the patient’s injuries. In such a

situation, “the plaintiff’s certifying expert’s supplemental certificate, filed after the close

of discovery” under CJP § 3-2A-06D, “can attest to a breach of the standard of care by

such an agent and, of course, should fully identify all health care provider agents alleged

to have breached the standard of care.” Id. at 171 n.12.

30

B. The Circuit Court Erred in Dismissing the Negligence Claim.

At this stage of the case, the record reflects that Nurse Jones-Singh is qualified to

make the required attestations in a certificate. As a registered nurse, Nurse Jones-Singh

meets the definition of “[h]ealth care provider.” CJP § 3-2A-01(f)(1). In addition, Nurse

Jones-Singh averred in the Certificate that she met the 25 percent rule. 21 And, according to

her affidavit, Nurse Jones-Singh had been a registered nurse for more than 16 years, and

was currently a “long-term care Director of Nursing and Resident Assessment

Coordinator.” To the extent that Canton Harbor may be vicariously liable for its nurses’

negligence in this case, these averments, on their face, are sufficient to show that Nurse

Jones-Singh “had clinical experience … 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.” CJP § 3-2A-02(c)(2)(ii)1A.

In keeping with the mandate of CJP § 3-2A-04(b)(1)(i)1, Nurse Jones-Singh attested

in the Certificate that Canton Harbor breached standards of nursing care that proximately

caused Mr. Robinson’s pressure ulcer injuries. The Report stated that Canton Harbor’s

nurses were responsible for identifying, documenting, preventing, and treating pressure

In moving to dismiss the Complaint, Canton Harbor did not assert that the Jones-

Singh Certificate was invalid because it and the Report failed to specifically identify the

nurses whose breaches of the standard of care proximately caused Mr. Robinson’s pressure

ulcers. Nor did Canton Harbor put any of its records from Mr. Robinson’s stay before the

circuit court and argue that Nurse Jones-Singh, based on her review of those records, could

have specifically identified the nurses who allegedly breached the standards of care.

21

Nurse Jones-Singh was not required to aver in the Certificate that she met the 25

percent rule. See Kearney v. Berger, 416 Md. 628, 650-51 (2010).

31

ulcers. It identified specific standards of nursing care relating to the prevention and

treatment of pressure ulcers, drawing from state and federal regulations, as well as Canton

Harbor’s own policies and procedures. The Report also stated several ways in which

Canton Harbor’s staff breached those standards of care with respect to the treatment of Mr.

Robinson, and how those breaches caused Mr. Robinson’s pressure ulcers. This sufficed to

satisfy the requirements of CJP § 3-2A-04(b)(1)(i)1. To this extent, Nurse Jones-Singh’s

opinions are in the nature of a nursing diagnosis, not a medical diagnosis. 22

To be sure, the Report contained several opinions that relate to conditions other than

the “pressure ulcers” and “bedsores” that are alleged to be the actionable injuries in Count

One of the Complaint. For example, the Report referred to arterial ulcers that Mr. Robinson

developed at another facility and to excoriation to Mr. Robinson’s perineal area. In

addition, the Report included several opinions with respect to which Nurse Jones-Singh

did not meet the peer-to-peer requirement of CJP § 3-2A-02(c)(2)(ii)1A. For example,

22

We note that the supplemental certificate that Mrs. Robinson will be required to

file within 15 days following the completion of discovery must contain more specifics,

compared to an initial certificate, concerning the applicable standard of care, how the

defendant breached that standard, and how the breach proximately caused the patient’s

injury. See CJP § 3-2A-06D(b)(1)(i) through (iv) (supplemental certificate must attest,

among other things, to the certifying expert’s “basis for alleging what is the specific

standard of care”; the expert’s “qualifications to testify to the specific standard of care”;

the “specific standard of care”; for the plaintiff, “[h]ow the specific standard of care was

breached”; “[w]hat specifically the defendant should have done to meet the specific

standard of care”; and “[t]he inference that the breach of the standard of care proximately

caused the plaintiff’s injury”). Canton Harbor will also have to file a supplemental

certificate signed by a qualified expert if it wishes to contest liability at trial. See id. § 3-

2A-06D(a)(2) & 3-2A-06D(b)(1)(i) through (iii) and (v). For both a plaintiff and a

defendant, “[t]he facts required to be included in the supplemental certificate of a qualified

expert shall be considered necessary to show entitlement to relief sought by a plaintiff or

to raise a defense by a defendant.” Id. § 3-2A-06D(b)(3).

32

Nurse Jones-Singh opined that Dr. Shah should have prescribed pain medication for Mr.

Robinson and that Eliquis should have been ordered for Mr. Robinson sooner than

occurred.

The presence of opinions in the Report that go beyond the scope of the alleged

injuries in the Complaint and violate the peer-to-peer requirement does not invalidate the

Certificate. The Act’s certificate requirement is designed to ensure “that a health care

provider who is not a party has reviewed the claim. It helps ensure that completely spurious

claims do not go forward.” Breslin v. Powell, 421 Md. 266, 285 (2011) (quoting Final

Report, November 2004 Governor’s Task Force on Medical Malpractice and Health Care

Access, at 31). The Jones-Singh Certificate serves that function to the extent it attests to

standards of nursing care involving pressure ulcers, Canton Harbor’s departures from those

standards of care, and that those departures proximately caused Mr. Robinson’s pressure

ulcers. 23

This is not to say that Nurse Jones-Singh will ultimately be permitted to testify at

trial, assuming that Mrs. Robinson designates Nurse Jones-Singh as a testifying expert

witness. That will be a decision, in the first instance, for the trial court to make. To that

23

The out-of-state cases cited by Canton Harbor and their amici concern

requirements beyond those set forth in CJP § 3-2A-02(c)(2)(ii)1A, involve proffered expert

testimony at trial, and/or involve opinions about subjects, unlike pressure ulcers, that are

outside a nurse’s area of expertise and venture into medical diagnosis, including cause of

death. See, e.g., Leckrone v. Kimes Convalescent Ctr., 168 N.E.3d 565, 569-70 (Ohio Ct.

App. 2021) (analyzing an “affidavit of merit” under Ohio law, which must meet a reliability

requirement); Freeman v. LTC Healthcare of Statesboro, Inc., 766 S.E.2d 123, 126 (Ga.

Ct. App. 2014) (affirming summary judgment for facility where cause of decedent’s

respiratory failure and death was beyond nurse’s area of expertise). As such, these cases

are not helpful in analyzing the application of Maryland law in this pressure ulcer case.

33

end, it is possible there will be a hearing under Rochkind v. Stevenson, 471 Md. 1 (2020)

(adopting framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993)), to determine whether Nurse Jones-Singh’s opinions are admissible under

Maryland Rule 5-702; i.e., whether: (1) Nurse Jones-Singh is qualified as an expert by

knowledge, skill, experience, training, or education; (2) the appropriateness of her

proffered expert testimony on the particular subject; and (3) whether a sufficient factual

basis exists to support her expert testimony. The fact that Nurse Jones-Singh meets the

Act’s peer-to-peer requirement does not mean that the trial court necessarily will conclude

that she “is qualified as an expert by knowledge, skill, experience, training, or education,”

Md. Rule 5-702(1), to testify as an expert at trial. In addition, it is not our task (or that of

the trial court) at this stage to opine concerning the reliability of any of the opinions

included in Nurse Jones-Singh’s Report. See Kearney v. Berger, 416 Md. 628, 652-53

(2010) (“The claimant or plaintiff is not required to prove his or her case with the

certificate, but instead must present an expert’s opinion that provides enough information

to support the conclusion that the defendant may have violated the standard of care. For

this purpose, the HCADRO or trial court accepts the assertions in the certificate, just as

courts accept a plaintiff’s well-pleaded facts and allegations in a complaint.”) 24; see also

24

Justice Watts is concerned that our decision will require the “HCADRO, which is

a unit in the Executive Department headed by the Director,” to “schedule the filing of

memoranda, hold contested hearings, and issue rulings” as to certifying experts’

qualifications, a requirement that the “HCADRO is not prepared to screen for or make a

determination about.” Concurring Op. of Watts, J., at 15, 18. There is a difference between

determining that a certificate does not, on its face, meet the requirements of the HCMCA

because, for example, it does not address proximate cause at all, and determining that a

certificate is invalid because the attesting healthcare provider lacks the requisite

34

id. (certificate need not state opinions to a reasonable degree of medical probability). 25 We

express no view as to whether the federal regulations upon which Nurse Jones-Singh relied

in the Report provide the applicable standard of care in this case. Nor do we express any

view concerning the merits of any of the other opinions included in the Report. These are

matters that may be explored in discovery and in further proceedings in the trial court.

qualifications to opine concerning proximate cause. We do not envision that the Director

will make a determination concerning the latter type of issue prior to the case going before

an arbitration panel or, if arbitration is waived, the case being filed in court. See Kearney,

416 Md. at 664 (“Nothing in the HCMCA instructs the Director to evaluate the

certificate[.]”); CJP § 3-2A-04(b)(1)(ii) (providing that, “[i]n lieu of dismissing the claim

or action, the panel chairman or the court shall grant an extension of no more than 90 days

for filing the certificate required by this paragraph” if certain conditions are met) (emphasis

added). Once a case is before an arbitration panel or a court, a party may seek relief on the

ground that a certificate is invalid due to the attesting healthcare provider lacking the

necessary qualifications, as occurred in this case.

25

As noted above, there seemingly is an open question in the scientific and medical

community about whether pressure ulcers can be identified through a nursing diagnosis as

opposed to a medical diagnosis. Based on our review of the literature, it strikes us as

possible that the cause of some pressure ulcers can be ascertained by way of a nursing

diagnosis, while other cases may require a medical diagnosis. The import of Nurse Jones-

Singh’s certificate is that this is a case in which a medical diagnosis is unnecessary. Canton

Harbor can contest that in a Daubert-Rochkind hearing challenging Nurse Jones-Singh’s

qualifications if it chooses to do so. Or it can challenge Nurse Jones-Singh’s opinion as to

proximate causation on the merits. In either event, the proper vehicle for the challenge is

not a motion to dismiss claiming a deficiency in the certificate. Similarly, Canton Harbor

can complain about the allegedly “ipse dixit” nature of Nurse Jones-Singh’s opinion, see

Concurring and Dissenting Op. of Booth, J., at 37-38, in a Daubert-Rochkind hearing.

We do not rule out the possibility that, in another case, a court or arbitration panel

could find a registered nurse’s certificate invalid either because: (1) the nurse’s proximate

causation opinion is, in actuality, a medical diagnosis, not a nursing diagnosis; or (2) it is

established in that case that a nursing diagnosis is not sufficient to determine the proximate

cause of the pressure ulcer in question. In other words, we do not hold that, as a matter of

law and in every case, a registered nurse may validly attest in a certificate concerning the

proximate cause of a pressure ulcer.

35

IV

Conclusion

Where a patient was previously diagnosed as having developed a pressure ulcer at

a skilled nursing facility, a registered nurse who meets the peer-to-peer requirement of CJP

§ 3-2A-02(c)(2)(ii)1A may attest in a certificate that a breach of the applicable standards

of nursing care at the facility proximately caused the pressure ulcer. It is undisputed that

Mr. Robinson was diagnosed by Canton Harbor staff as suffering from pressure ulcers that

he developed during his stay at Canton Harbor. Nurse Jones-Singh meets the peer-to-peer

requirement to the extent she attests to alleged breaches of standards of nursing care by

Canton Harbor’s nurses. In the Certificate and attached Report, Nurse Jones-Singh attested

to alleged breaches of care by Canton Harbor’s nurses and to those breaches having

proximately caused Mr. Robinson’s pressure ulcers. Accordingly, the Certificate met the

requirements of the Act. The Appellate Court correctly concluded that Mrs. Robinson’s

negligence claim against Canton Harbor may go forward.

Chief Justice Fader and Justice Gould join this opinion.

JUDGMENT OF THE APPELLATE

COURT AFFIRMED. COSTS TO BE

PAID BY PETITIONER.

36

Circuit Court for Baltimore City

Case No. 24-C-22-001200

Argued: January 7, 2025

IN THE SUPREME COURT

OF MARYLAND

No. 22

September Term, 2024

______________________________________

CANTON HARBOR HEALTHCARE

CENTER, INC.

v.

FELICIA ROBINSON, ET AL.

______________________________________

Fader, C.J.

Watts

Booth

Biran

Gould

Eaves

Killough,

JJ.

______________________________________

Concurring Opinion by Watts, J.

______________________________________

Filed: July 29, 2025

Respectfully, I concur. I agree with the Majority that the Circuit Court for Baltimore

City erred in dismissing the complaint in the case. See Maj. Slip Op. at 31, 36. I also

would affirm the judgment of the Appellate Court of Maryland. But, because I would

affirm the judgment of the Appellate Court for different reasons than the Majority, I write

separately.

In this case, Everett Robinson was transferred to Canton Harbor Healthcare Center,

Inc. d/b/a FutureCare-Canton Harbor (“Canton Harbor”), Petitioner, in August 2018 after

suffering a stroke that left him unable to move independently and completely dependent

on others for care. While at Canton Harbor, Mr. Robinson developed bedsores and the

areas became infected. Mr. Robinson was eventually transferred to another facility to

receive treatment, but, unfortunately, his wounds became septic and he died in March 2019.

Felicia Robinson, Mr. Robinson’s wife, as well as Mr. Robinson’s three children

(collectively, “the Robinsons”), Respondents, filed a claim against Canton Harbor alleging

negligence and wrongful death. To comply with the Health Care Malpractice Claims Act

(“HCMCA”), the Robinsons filed a certificate of qualified expert (“CQE”) authored by a

registered nurse, Anjanette Jones-Singh.

In the circuit court, Canton Harbor moved to dismiss the Robinsons’ complaint,

challenging the CQE’s sufficiency. Canton Harbor argued that Nurse Jones-Singh was not

qualified to offer an opinion on the medical or proximate cause of Mr. Robinson’s

bedsores, as she, a registered nurse, is not qualified to make medical diagnoses. The circuit

court granted the motion to dismiss.

The HCMCA is set forth at Md. Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl.

Vol.) (“CJ”) §§ 3-2A-01 through 3-2A-10. The General Assembly’s purpose in enacting

the HCMCA was to provide for a “mandatory arbitration system for all medical malpractice

claims in excess of a certain amount[.]” 1976 Md. Laws 495 (Vol. I, Ch. 235, S.B. 436).1

The statute was part of a “multi-phase response to a malpractice insurance ‘crisis’ that arose

in 1974” when the company that insured approximately 85% of physicians practicing in

Maryland ceased offering medical malpractice insurance in the State. Witte v. Azarian,

369 Md. 518, 526, 801 A.2d 160, 165 (2002). The HCMCA was “an attempt by the

General Assembly, in substantial part, to limit the filing of frivolous malpractice claims”

and to provide for screening of malpractice claims prior to the filing of lawsuits. Carroll

v. Konits, 400 Md. 167, 176-78, 929 A.2d 19, 25-26 (2007) (citations omitted).

The CQE requirement was added to the HCMCA in 1986. See Breslin v. Powell,

421 Md. 266, 282-84, 26 A.3d 878, 887-89 (2011). The General Assembly’s purpose in

amending the HCMCA to include the CQE requirement was to “weed out” non-meritorious

claims. See id. at 284, 26 A.3d at 889 (citations omitted); see also Walzer v. Osborne, 395

Md. 563, 582, 911 A.2d 427, 438 (2006) (“[T]he General Assembly enacted the [HCMCA]

for purposes of weeding out non-meritorious claims and to reduce the costs of litigation.”).

In describing the merits of the CQE requirement, the Governor’s 2004 Task Force on

Medical Malpractice and Health Care Access stated:

This certificate requirement ensures that a health care provider who is not a

party has reviewed the claim. It helps ensure that completely spurious claims

1

Consistent with the authority granted by the HCMCA, see CJ § 3-2A-03(b)(3), the

Director of the Health Care Alternative Dispute Resolution Office has promulgated

regulations that are set forth in Title 01, Subtitle 03 of the Code of Maryland Regulations.

-2-

do not go forward. It also provides a mechanism for the Board of Physicians

to receive notice of a claim.

See Final Report, November 2004 Governor’s Task Force on Medical Malpractice and

Health Care Access, at 31, available at https://msa.maryland.gov/megafile/msa/speccol/

sc5300/sc5339/000113/000000/000455/unrestricted/20040962e.pdf [https://perma.cc/

2ATM-X5NQ]; see also Breslin, 421 Md. at 284-85, 26 A.3d at 890.

The HCMCA sets forth two main options—(1) that a claim will be reviewed by an

arbitration panel with an award either being denied or established with procedures under

which the claimant can either accept or reject the award or (2) that the claimant and

defendant can agree to waive arbitration and take the case directly to a trial court or either

party can file a request to waive arbitration. Unless the only issue in the claim is lack of

informed consent, a claimant must file a CQE to advance to arbitration or obtain a waiver.

The function of the HCMCA is to screen out spurious medical malpractice claims and

allow non-frivolous claims to be sent to arbitration or to permit a waiver of arbitration after

a CQE has been filed. The statute does not function to determine the admissibility of expert

testimony at trial.

The HCMCA anticipates that CQEs may be filed by health care professionals who

are not physicians and no provision of the subtitle mandates that, to render an opinion in a

CQE, a health care provider must be qualified to make a certain type of diagnosis. To attest

in a CQE, the statute requires that a health care provider must satisfy two basic criteria: (1)

generally, the health care provider must have experience, provided consultation, or taught

medicine in the defendant’s specialty or a related field within 5 years of the act or omission

-3-

giving rise to the cause of action, see CJ § 3-2A-02(c)(2); and (2) the health care provider

may not have devoted more than 25% of the provider’s professional activities to activities

that directly involve testimony in personal injury claims during the 12 months immediately

before the date when the claim was first filed, see CJ § 3-2A-04(b)(4)(ii). In addition, the

HCMCA provides that a health care provider cannot be liable unless it is established that

the health care provider’s conduct was not in accordance with the standards of practice of

health care providers of the same health care profession with similar training and

experience situated in the same or similar communities as the defendant at the time of the

alleged act giving rise to the cause of action. See CJ § 3-2A-02(c)(1). This provision

requires that, to attest in a CQE, a health care provider must not only have similar training

or experience as a defendant but must also have obtained the training and experience in the

same or a similar community where the defendant was situated at the time of the alleged

act.2

To ascertain whether the CQE filed by the Robinsons satisfies the requirements of

the HCMCA, one would begin by examining the plain language of the statute. The goal in

statutory construction “is to ascertain and effectuate the actual intent of the General

Assembly.” Johnson v. Md. Dep’t of Health, 470 Md. 648, 674, 236 A.3d 574, 588 (2020)

(citation omitted). In interpreting a statute, we first examine the plain meaning of the

statutory language. See id. at 674, 236 A.3d at 588. “If the language of the statute is

unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry

2

The locality requirement of CJ § 3-2A-02(c)(1) is not at issue in this case.

-4-

ordinarily comes to an end, and we apply the statute as written, without resort to other rules

of construction.” Id. at 674, 236 A.3d at 588-89 (citation omitted). The language of the

HCMCA is unambiguous with respect to the qualifications necessary for a health care

provider to attest in a CQE and the content of a CQE.

CJ § 3-2A-01(f)(1) defines a health care provider as

a hospital, a related institution as defined in § 19-301 of the Health--General

Article, a medical day care center, a hospice care program, an assisted living

program, a freestanding ambulatory care facility as defined in § 19-3B-01 of

the Health--General Article, a physician, a physician assistant, an osteopath,

an optometrist, a chiropractor, a registered or licensed practical nurse, a

dentist, a podiatrist, a psychologist, a licensed certified social worker-

clinical, and a physical therapist, licensed or authorized to provide one or

more health care services in Maryland.

CJ § 3-2A-02(a)(1) provides, among other things, that all claims against health care

providers “in which damages of more than the limit of the concurrent jurisdiction of the

District Court are sought” are governed by the HCMCA. CJ § 3-2A-02(c)(1) states:

In any action for damages filed under this subtitle, the health care provider is

not liable for the payment of damages unless it is established that the care

given by the health care provider is not in accordance with the standards of

practice among members of the same health care profession with similar

training and experience situated in the same or similar communities at the

time of the alleged act giving rise to the cause of action.

CJ § 3-2A-02(c)(2)(ii) contains two subparagraphs that state:

1. In addition to any other qualifications, a health care provider who attests

in a certificate of a qualified expert or testifies in relation to a proceeding

before a panel or court concerning a defendant’s compliance with or

departure from standards of care:

A. Shall 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

-5-

the date of the alleged act or omission giving rise to the cause of

action; and

B. Except as provided in subparagraph 2 of this subparagraph, if the

defendant is board certified in a specialty, shall be board certified in

the same or a related specialty as the defendant.[3]

2. Subparagraph 1B of this subparagraph does not apply if:

A. The defendant was providing care or treatment to the plaintiff

unrelated to the area in which the defendant is board certified; or

B. The health care provider taught medicine in the defendant's

specialty or a related field of health care.

CJ § 3-2A-03(a) establishes the Health Care Alternative Dispute Resolution Office

(“HCADRO”) as a unit of the Executive Department and states that the Office is to be

headed by a Director appointed by the Governor with the advice and consent of the Senate.

CJ § 3-2A-03(c)(1) also states that the Director shall prepare a list of qualified persons

willing to serve as arbitrators of health care malpractice claims.

CJ § 3-2A-04 is titled “Claims filed with Director; selection of arbitrators.” CJ § 3-

2A-04(b)(1) states:

(i) 1. Except as provided in item (ii) of this paragraph, a claim or

action filed after July 1, 1986, shall be dismissed, without prejudice,

if the claimant or plaintiff fails to file a certificate of a qualified expert

with the Director attesting to departure from standards of care, and

that the departure from standards of care is the proximate cause of the

alleged injury, within 90 days from the date of the complaint; and

2. The claimant or plaintiff shall serve a copy of the certificate

on all other parties to the claim or action or their attorneys of

record in accordance with the Maryland Rules; and

3

This is the peer-to-peer requirement. See Maj. Slip Op. at 6, 29.

-6-

(ii) In lieu of dismissing the claim or action, the panel chairman or the

court shall grant an extension of no more than 90 days for filing the

certificate required by this paragraph, if:

1. The limitations period applicable to the claim or action has

expired; and

2. The failure to file the certificate was neither willful nor the

result of gross negligence.

CJ § 3-2A-04(b)(4) provides:

(i) In this paragraph, “professional activities” means all activities arising

from or related to the health care profession.

(ii) A health care provider who attests in a certificate of a qualified expert or

who testifies in relation to a proceeding before an arbitration panel or a court

concerning compliance with or departure from standards of care may not

have devoted more than 25% of the expert's professional activities to

activities that directly involve testimony in personal injury claims during the

12 months immediately before the date when the claim was first filed.[4]

(iii) Once a health care provider meets the requirements of subparagraph (ii)

of this paragraph, the health care provider shall be deemed to be a qualified

expert as to subparagraph (ii) of this paragraph during the pendency of the

claim.

(iv) If a court dismisses a claim or action because a qualified expert failed to

comply with the requirements of this subsection, unless there is a showing of

bad faith, a party may refile the same claim or action before the later of:

1. The expiration of the applicable period of limitation; or

2. 120 days after the date of the dismissal.

(v) A claim or an action may be refiled under subparagraph (iv) of this

paragraph only once.

CJ § 3-2A-05 sets forth the arbitration proceedings to be used to determine liability.

CJ § 3-2A-06 governs the procedures for rejection of an award of arbitration.

4

This is the “25 percent rule.” See Maj. Slip Op. at 5-6.

-7-

CJ § 3-2A-06A sets forth, among other things, a procedure for the mutual waiver of

arbitration. CJ § 3-2A-06B sets forth the process by which either a claimant or defendant

may waive arbitration, without the agreement of the other party. CJ § 3-2A-06B(b)(1)

states:

Subject to the time limitation under subsection (d) of this section, any

claimant may waive arbitration at any time after filing the certificate of

qualified expert required by § 3-2A-04(b) of this subtitle by filing with the

Director a written election to waive arbitration signed by the claimant or the

claimant’s attorney of record in the arbitration proceeding.

CJ § 3-2A-06B(c)(1) similarly states:

Subject to the time limitation under subsection (d) of this section, any

defendant may waive arbitration at any time after the claimant has filed the

certificate of qualified expert required by § 3-2A-04(b) of this subtitle by

filing with the Director a written election to waive arbitration signed by the

defendant or the defendant’s attorney of record in the arbitration proceeding.

Under CJ § 3-2A-06B(d)(1), “[a] waiver of arbitration by any party under this

section may be filed not later than 60 days after all defendants have filed a certificate of

qualified expert under § 3-2A-04(b) of this subtitle.” CJ § 3-2A-06C sets forth the

procedures governing alternative dispute resolution of health care malpractice claims under

the HCMCA. CJ § 3-2A-06D requires, among other things, that a party must file a

supplemental CQE after discovery is complete.

CJ § 3-2A-07 concerns when the arbitration panel may require a party to pay the

adverse party’s costs, expenses, and attorney’s fees. CJ § 3-2A-08 prohibits the admission

of evidence of any advanced insurance payment made for damages until there is an award

or verdict, and then provides for the procedure relating to payment or adjustment of the

award. CJ § 3-2A-08A sets forth the procedure by which a party to an action for a medical

-8-

injury may serve, accept, or withdraw an offer of judgment. CJ § 3-2A-09 provides that

an award or verdict for noneconomic damages under the HCMCA may not exceed a certain

limit—a limit that increases each year. CJ § 3-2A-09 also concerns verdicts for past

medical expenses. Finally, CJ § 3-2A-10 states that

[e]xcept as otherwise provided in §§ 3-2A-08A and 3-2A-09 of this subtitle,

the provisions of this subtitle shall be deemed procedural in nature and may

not be construed to create, enlarge, or diminish any cause of action not

heretofore existing, except the defense of failure to comply with the

procedures required under this subtitle.

In this case, the Robinsons filed a CQE, Canton Harbor elected to waive arbitration,

and the case was transferred to the circuit court, where the Robinsons filed their complaint.

In the circuit court, Canton Harbor filed a motion to dismiss, alleging that Nurse Jones-

Singh was not qualified to attest to the proximate cause of Mr. Robinson’s medical injuries.

In a memorandum of points and authorities in support of the motion to dismiss, Canton

Harbor asserted that any expert opinion attested to in a CQE and report must comply with

Maryland Rule 5-702, which governs admissibility of expert testimony at trial, and that the

critical question was whether Nurse Jones-Singh as a registered nurse is “qualified to opine

on the issue of medical causation.” Based on the plain language of the HCMCA, this is

clearly wrong, for at least two reasons. First, the HCMCA requires that the expert render

an opinion concerning a breach of the standard of care and proximate cause. The term

“medical causation” is not used anywhere in the HCMCA. And, second, once an expert

meets the credential requirements set forth in the HCMCA, i.e., once it is determined that

the expert has not devoted more than 25% of the expert’s professional activities in the last

year to serving as an expert, that the expert has experience, provided consultation, or taught

-9-

medicine in a field similar to that of the defendant within 5 years of the date of the event

giving rise to the cause of action, and that the expert obtained the training and experience

in the same or a similar community where the defendant was situated at the time of the

alleged act, the expert may render an opinion in a CQE as to the applicable standard of care

and proximate cause.

The motion to dismiss was based on two faulty premises: (1) that the CQE must

comply with Maryland Rule 5-702; and (2) that to render an opinion in a CQE, Nurse

Jones-Singh must be qualified to render an opinion on medical causation, which Canton

Harbor equated with the ability to render a medical diagnosis. The transcript of the hearing

on the motion to dismiss shows that, ruling from the bench, the circuit court determined

that, based on Md. Code Ann., Health Occ. (1981, 2021 Repl. Vol.) (“HO”) §§ 14-101(o)

and 8-101(o) as well as Code of Maryland Regulation (“COMAR”) 10.27.09.01B(16), the

CQE was defective because a registered nurse cannot make a medical diagnosis and

therefore cannot determine a medical condition or the cause of a condition. 5 The circuit

court’s entire ruling was as follows:

Having considered the motion, the opposition and the argument

presented today, I have the following ruling for you.

The issued involved in this matter is whether a registered nurse can

serve as a qualified expert under Maryland Code Courts and Judicial

Proceedings section 3-2A-04(b)(1)([i]). The Court finds that the Plaintiff’s

designated expert Ms. Jones-Sing[h] is a healthcare provider as -- that’s

defined under Courts and Judicial Proceedings section 3-2A-01(f)(1). The

HO § 14-101(o) defines the term “practice medicine.” HO § 8-101(o) defines the

5

term “practice registered nursing.” COMAR 10.27.09.01B(16) defines the term “nursing

diagnosis” as “a description of the actual or potential, overt or covert health problems

which registered nurses are licensed to treat.”

- 10 -

Court further finds that she is qualified to attest to the standard of care and

deviation there for nurses.

However, when considering Maryland Code Health Occupations 14-

101(o) and 8-101(o) as well as COMAR section 10.27.09.01.B(16), the Court

finds that a registered nurse cannot make a medical diagnosis, and therefore,

cannot determine a medical condition nor the cause of a condition.

Therefore, the Court concludes that a registered nurse cannot attest that there

was a departure from the standard of care that’s the proximate cause of the

alleged injury as required by Courts and Judicial Proceedings section 3-2A-

04(b)(1)([i]).

As such, the Court finds that the certificate of qualified expert is

defective. And Courts and Judicial Proceedings section 3-2A-04(b)(1)([i])

mandates dismissal. Furthermore, the Court finds that there is -- there has

been no showing of good cause for an extension of time. And therefore, the

Court will not grant such. So the Court is going to enter an order of dismissal

of this matter for those reasons.

The circuit court concluded that a registered nurse cannot attest that there was a

departure from the standard of care that is the proximate cause of the alleged injury as

required by CJ § “3-2A-04(b)(1)([i]).” This is clearly a determination that reads

requirements into the HCMCA that do not exist. Aside from circuit court’s ruling being

inconsistent with the plain language of the provisions concerning the criteria that a health

care provider must satisfy to attest as an expert in a CQE and what a qualified expert may

attest to, as explained, CJ § 3-2A-10, titled “Construction of subtitle,” states that the

provisions of the HCMCA shall be deemed procedural in nature and may not be construed

to create, enlarge, or diminish any cause of action, except the defense of the failure to

comply with the procedures required under the HCMCA. This provision forecloses any

argument that a court can incorporate the standards of Maryland Rule 5-702 or Rochkind

v. Stevenson, 471 Md. 1, 236 A.3d 630 (2020), as a basis for finding that a CQE does not

meet the requirements of the HCMCA. Moreover, the head of HCADRO is a Director

- 11 -

appointed by the Governor and the Office is part of the executive branch of the government.

It is not the function of the Director or HCADRO to determine the admissibility of evidence

under Maryland Rule 5-702 or Rochkind or whether a health care provider can make a

particular type of diagnosis.

I would hold that, in all respects, Nurse Jones-Singh’s credentials satisfy the

requirements of the HCMCA for her to attest in a CQE concerning a breach of the standard

of care and proximate cause with respect to injuries allegedly caused by nursing staff of

Canton Harbor. Nurse Jones-Singh met the peer-to-peer and 25 percent requirements for

attesting to breaches of the standard of care by nursing staff at Canton Harbor. Stated

otherwise, Nurse Jones-Singh met the requirements set forth in the HCMCA for a health

care provider to render an opinion in a CQE. With her qualifications established, in her

CQE and report, Nurse Jones-Singh attested that breaches of standards of care by Canton

Harbor’s nursing staff were the proximate cause of Mr. Robinson’s bedsores. We have

stated that although the CQE filing requirement is important to the HCMCA, the Act’s

filing provisions do not establish, deny, or define a cause of action, nor do the provisions

define the standard of care applied or prescribe how liability is determined. See Lewis v.

Waletzky, 422 Md. 647, 665, 31 A.3d 123, 134 (2011). Rather, the filing provisions, as

part of a legislative scheme, are simply intended to control access to Maryland courts. See

id. at 134, 31 A.3d at 665.

There is nothing in the HCMCA that permits a determination by the HCADRO as

to whether an expert who meets all of the qualifications of the subtitle is otherwise qualified

to render an opinion about proximate cause with respect to a specific diagnosis or injury.

- 12 -

Once the parties enter arbitration or a party individually or the parties mutually waive

arbitration and proceed in the circuit court, such a determination may be made by the

arbitration panel or the court with respect to the admissibility of the expert’s testimony at

trial. See Kearney v. Berger, 416 Md. 628, 652-53, 7 A.3d 593, 607 (2010) (“[T]he

HCADRO or trial court accepts the assertions in the certificate, just as courts accept a

plaintiff’s well-pleaded facts and allegations in a complaint. . . . At the early stage when

the certificate is filed, neither the HCADRO nor the trial court is in a position to make

determinations about the strength of the expert’s opinions. Those determinations arise

later.” (Citation omitted)). The HCADRO serves as a screener of claims charged with

assuring that an expert with similar qualifications as a defendant has reviewed the

circumstances of a case and attested to a breach of the applicable standard of care and

proximate cause, not a judge or fact finder with respect to an expert’s qualifications to

render a specific diagnosis, which is a determination that is governed by Maryland Rule 5-

702.

In determining that Nurse Jones-Singh’s CQE satisfies the requirements of the

HCMCA, the Majority concludes:

Two points are central to our analysis. First, where a patient has

previously been diagnosed with a particular medical injury by another health

care provider, a registered nurse who relies on that pre-existing diagnosis

does not make a diagnosis concerning the injury itself in a certificate filed

under the Act. Rather, the nurse accepts the accuracy of the pre-existing

diagnosis made by another health care provider(s). A different situation

arises where a registered nurse purports to diagnose a medical condition or

other medical injury in the first instance in a certificate.

Second, a registered nurse does not exceed the bounds of nursing

practice when the nurse opines in a certificate that a departure from the

- 13 -

standards of nursing care is the proximate cause of a previously diagnosed

pressure ulcer that developed while the patient resided at a skilled nursing

facility.

Maj. Slip Op. at 23.

The Majority states that “it is at least an open question whether identifying the

proximate cause of a pressure ulcer is within the proper scope of rendering a nursing

diagnosis and does not constitute or require making a medical diagnosis[,]” and that a

registered nurse may be qualified to render an opinion in a CQE “that breach of applicable

standards of nursing care for preventing and treating decubitus ulcers proximately caused

the plaintiff’s ulcer injury” with the following qualification:

Because a registered nurse cannot render an opinion on medical

causation, we add the qualification that the patient’s pressure ulcer must have

been previously diagnosed by another qualified health care provider, unless

the certifying registered nurse, in the course of personally examining the

patient, observed the wound and identified it as a pressure ulcer. If a

registered nurse knows (based on a pre-existing diagnosis) that the patient

developed a pressure ulcer while a resident of a skilled nursing facility, the

nurse may be qualified to attest in a certificate that a breach of the applicable

standard of nursing care is the proximate cause of the pressure ulcer.

Maj. Slip Op. at 27-28 (footnote omitted).

Although the majority opinion states that Maryland Rule 5-702 will only be relevant

in determining whether Nurse Jones-Singh’s opinions are admissible at trial if she is called

as an expert witness, see Maj. Slip Op. at 33-34, in determining that Nurse Jones-Singh’s

CQE meets the requirements of the HCMCA because she did not make a medical diagnosis

and instead relied on a previous diagnosis made by another health care provider, see Maj.

Slip Op. at 22-23, the Majority in essence is making a determination about Nurse Jones-

Singh’s qualifications as an expert under Maryland Rule 5-702 and opining as to whether

- 14 -

Nurse Jones-Singh has the knowledge, skill, experience, training, or education necessary

to diagnose whether a patient had bedsores.6 Nothing in the HCMCA permits the

HCADRO, or a trial court for that matter, in determining whether a CQE meets the

requirements of the Act, to assess whether a health care provider is qualified to make a

particular diagnosis or to render an opinion in a CQE about a particular diagnosis. The

Majority’s holding reaches a conclusion not implicated by the HCMCA and holds Nurse

Jones-Singh’s qualifications to a standard which exceeds that authorized by the Act.

Aside from the plain language of the HCMCA not authorizing the inquiry the

Majority undertakes, as a practical matter, the HCADRO, which is a unit in the Executive

Department headed by the Director, is not equipped to schedule the filing of memoranda,

hold contested hearings, and issue rulings as to whether health care providers who submit

CQEs are qualified under Maryland Rule 5-702, or authorized under COMAR, to render

an opinion about a particular type of diagnosis. The parties may of course challenge

6

In addition, the Majority’s determination is inconsistent with case law concerning

the admissibility of expert testimony at trial. The Majority concludes that, for a nurse to

attest in a CQE about the proximate cause of a pressure ulcer, the diagnosis of the pressure

ulcer must have been made by “another qualified health care provider” unless the nurse has

personally examined the patient and identified the existence of a pressure ulcer. Maj. Slip

Op. at 28. In other words, the Majority concludes that a nurse may not review nursing

notes and reports concerning a patient’s condition and render an opinion as an expert that

the person has a pressure ulcer, i.e., a bedsore. Aside from addressing an issue that is not

at all part of the HCMCA, the Majority’s holding also contradicts the well-established

principle that, to render an opinion as an expert, a witness need not have personally treated

or examined the person at issue. See Levitas v. Christian, 454 Md. 233, 251, 164 A.3d

228, 239 (2017) (We rejected the defendant’s contention that an expert’s opinion lacked a

sufficient factual basis because the expert did not conduct his own examination of the

plaintiff and instead relied on another expert’s report, scientific research, school records,

discovery materials, and deposition testimony.).

- 15 -

whether a health care provider’s qualifications and the content of the CQE meet the

requirements of the HCMCA in court or at arbitration. As this Court stated in Kearney,

416 Md. at 653, 7 A.3d at 607:

If the HCADRO or trial court determines that some information required by

§ 3-2A-04(b) is missing from the certificate, dismissal is required because

the claimant or plaintiff has necessarily failed to establish that the claim has

merit. In this manner, the certificate requirement allows for the weeding out

of a non-meritorious claim. If the certificate includes the information that §

3-2A-04(b) requires, then the claimant or plaintiff has shown that the claim

may have merit and dismissal pursuant to § 3-2A-04(b) is inappropriate. At

the early stage when the certificate is filed, neither the HCADRO nor the trial

court is in a position to make determinations about the strength of the expert’s

opinions. Those determinations arise later. In further proceedings, the

defendant may challenge the expert’s opinions on the basis that they are not

expressed to a reasonable degree of medical probability.

(Paragraph break omitted).

Although the parties may challenge a health care provider’s qualifications and the

content of a CQE in court, the HCMCA contemplates that the Director or the HCADRO

will review the qualifications of the health care provider and the CQE to determine whether

they meet the requirements of the Act. CJ § 3-2A-04(b)(1)(i)1 states:

Except as provided in item (ii) of this paragraph, a claim or action filed after

July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff

fails to file a certificate of qualified expert with the Director attesting to

departure from standards of care, and that the departure from standards of

care is the proximate cause of the alleged injury, within 90 days from the date

of the complaint[.]

This provision makes clear that it is within the province of the Director or HCADRO to

determine whether a claim should be dismissed for a claimant’s failure to timely file a CQE

that complies with the requirements of the Act. Likewise, CJ § 3-2A-04(b)(2)(i) provides

that

- 16 -

[a] claim or action filed after July 1, 1986, may be adjudicated in favor of the

claimant or plaintiff on the issue of liability, if the defendant disputes liability

and fails to file a certificate of qualified expert attesting to compliance with

standards of care, or that the departure from standards of care is not the

proximate cause of the alleged injury, within 120 days from the date the

claimant or plaintiff served the certificate of qualified expert set forth in

paragraph (1) of this subsection on the defendant.

Again, this language makes clear that it is the duty of the Director or HCADRO to make a

determination as to whether a claim should be dismissed due to a defendant’s failure to

timely file a CQE that complies with the requirements of the Act. Moreover, CJ § 3-2A-

04(b)(4)(iii) provides that, “[o]nce a health care provider meets the requirements of

subparagraph (ii)[7] of this paragraph, the health care provider shall be deemed to be a

qualified expert as to subparagraph (ii) of this paragraph during the pendency of the claim.”

This language unequivocally states that upon satisfaction of the additional professional

activity requirement8 set forth in the statute, a health care provider shall be deemed a

qualified expert during the pendency of the claim. The majority opinion sets forth

additional requirements about a health care provider’s qualifications and the content of a

CQE that HCADRO is not required to screen for and will not be equipped to screen for,

which will result in the HCMCA being meaningless with respect to the Director’s or

HCADRO’s review of the new requirements imposed by the Majority.9

7

Subparagraph (ii) of CJ § 3-2A-04(b)(4) sets forth the requirement that a health

care provider may not have devoted more than 25% of the expert’s professional activities

to activities that involve testimony in personal injury claims during the 12 months that

immediately precede the filing of the instant claim.

8

The peer-to-peer requirement is set forth earlier in CJ § 3-2A-02(c)(2)(ii)1.

9

In Kearney, 416 Md. at 652-53, 7 A.3d at 607, in rejecting a doctor’s argument that

a CQE must contain opinions expressed to a reasonable degree of medical probability, we

- 17 -

Although the Majority concludes that Nurse Jones-Singh’s CQE is acceptable, its

analysis permits a trial court to dismiss a case based on a finding that a CQE does not meet

the requirements of the HCMCA because the attesting health care provider, a nurse, or

potentially another type of health care provider, is not qualified to make a particular

diagnosis or to render an opinion about proximate cause, even though the health care

provider has otherwise satisfied the requirements of the Act and the CQE was accepted by

the HCADRO. The majority opinion incorporates into the HCMCA a requirement that

does not exist and one that the HCADRO is not prepared to screen for or make a

determination about. As explained, to attest in a CQE, a health care provider must have

experience, provided consultation, or taught medicine in the defendant’s specialty or a

related field within 5 years of the act or omission giving rise to the cause of action, see CJ

§ 3-2A-02(c)(2), and may not have devoted more than 25% of the provider’s professional

activities to activities that directly involve testimony in personal injury claims during the

12 months immediately before the date when the claim was first filed, see CJ § 3-2A-

explained that a claimant or plaintiff is not required to prove their case with the CQE and

as explained above, we stated, among other things, that, “[i]f the HCADRO or trial court

determines that some information required by § 3-2A-04(b) is missing from the certificate,

dismissal is required because the claimant or plaintiff has necessarily failed to establish

that the claim has merit.” In addition, in concluding that the trial court did not abuse its

discretion in concluding that there was no good cause to extend the deadline for filing the

CQE, we also remarked that “[n]othing in the HCMCA instructs the Director to evaluate

the certificate, and [p]etitioners have presented nothing to suggest that that the Director

actually represented to them that the certificate was sufficient.” Id. at 664, 7 A.3d at

614. This remark in Kearney does not definitively resolve what level of review the

HCADRO is responsible for with respect to the qualifications of a health care provider who

attests in a CQE and the content of the CQE. The statute speaks for itself that the

HCADRO or Director shall make a determination as to whether the CQE was timely

submitted and contains the required information.

- 18 -

04(b)(4)(ii). In addition, the health care provider must have obtained training and

experience in the same or a similar community where the defendant was situated at the

time of the alleged act. See CJ § 3-2A-02(c)(1). These are easily verifiable criteria and do

not require the HCADRO or trial court to address whether a witness is qualified as an

expert by knowledge, skill, experience, training, or education to make a medical diagnosis

or to otherwise opine about proximate cause where a particular diagnosis is concerned.

Nothing in the HCMCA permits the HCADRO to deny a waiver of arbitration, apart

from the requirements of the statute concerning an expert’s credentials, the required content

of a CQE, and a time limit violation in filing an election to waive arbitration, an issue that

was not raised in this case. Once an expert has met the qualifications set forth in the statute,

it is not the HCADRO’s function to determine whether an expert is qualified to render an

opinion at trial on proximate cause with respect to a specific injury or diagnosis.10 At the

point that a health care provider submits a CQE, the HCADRO accepts the assertions in

the CQE, without determining whether the health care provider would be permitted to

10

All of the Majority’s concerns as to whether a nurse can make a medical diagnosis,

whether Nurse Jones-Singh in particular is qualified to diagnose bedsores, and the

application of COMAR to Nurse Jones-Singh’s testimony are issues to be addressed by the

circuit court if or when raised in a motion to exclude Nurse Jones-Singh’s testimony at trial

based on Maryland Rule 5-702, Rochkind, and Daubert, or other grounds for exclusion of

expert testimony. Nothing in an opinion from this Court holding that Nurse Jones-Singh’s

CQE satisfies the requirements of the HCMCA (which it does) would preclude Canton

Harbor from raising the exclusion of expert testimony type issues it attempted to have

reviewed under the HCMCA in a motion based on grounds for excluding expert testimony

at trial. Concluding that a health care provider is not qualified to render an opinion in a

CQE because the health care provider is not qualified to make a medical diagnosis or to

diagnose a particular condition is not a determination that is authorized under the HCMCA.

- 19 -

testify as an expert under Maryland Rule 5-702. See Kearney, 416 Md. at 652-53, 7 A.3d

at 607.

By virtue of the requirement that a health care provider who attests in a CQE have

similar credentials in terms of experience as the defendant, it stands to reason that a

registered nurse, with proper credentials, will meet the qualifications to render an opinion

in a CQE about the conduct of other nurses, who have the same experience, training, or

consultation background as the nurse. Whether the nurse is qualified to testify about a

certain diagnosis is a determination left to the trial court under Maryland Rule 5-702. This

is the role of the trial court as the gatekeeper with respect to expert testimony at trial.

If a court dismisses a claim or action because a CQE failed to comply with the

requirements of this subsection, unless there is a showing of bad faith, a party may refile

the same claim or action before the later of the expiration of the statute of limitations or

120 days after the dismissal. See CJ § 3-2A-04(b)(4)(iv). This provision demonstrates that

the goal of the HCMCA is not to dismiss claims for lack of admissibility of expert

testimony at trial but to permit non-frivolous claims an opportunity to be pursued, while

weeding out frivolous claims.11

As an aside, this Court’s holding in Carroll, 400 Md. at 172, 929 A.2d at 22, that

11

a CQE, among other things, must identify the defendant by name does not apply in this

case. Carroll and other cases like it either involved claims with multiple defendants who

were not specifically identified in a CQE or claims in which a certificate referred only to

the “defendant” without identifying or referencing the defendant named in the claim at

issue. In Carroll, 400 Md. at 196-97, 929 A.2d at 37, the expert’s report included the names

of five different physicians, two of whom were the named defendants in the case. The

report mentioned the two named defendants but also mentioned two unnamed physicians

and identified a third physician who was not a defendant in the case. See id. at 197, 929

- 20 -

For the above reasons, respectfully, I concur.

A.2d at 37. We stated that in so doing, the expert “failed to state with sufficient specificity

which physician or physicians breached the standard of care and which physician or

physicians were allegedly responsible for Carroll’s injuries[,]” and failed to state what the

standard of care was or how the named defendant departed from it. Id. at 197, 929 A.2d at

37.

In Carroll, 400 Md. at 195-96, 929 A.2d at 36-37, we held that the CQE must

identify the defendant who allegedly breached the standard of care and must allege that the

defendant departed from an applicable standard of care. In this case, the Robinsons filed a

complaint identifying Canton Harbor Healthcare Center, Inc., d/b/a Future Care-Canton

Harbor as the defendant. CJ § 3-2A-01(f)(1) states a health care provider means, among

others, a hospital, a related institution as defined in Md. Code Ann., Health-Gen. (“HG”)

§ 19-301, a medical day care center, a hospice care program, an assisted living program,

and a freestanding ambulatory care facility as defined in HG § 19-3B-01. HG § 19-301(f)

defines the term “hospital” and HG § 19-301(l) states “nursing facility” “means a related

institution that provides nursing care for 2 or more unrelated individuals.” In the report

incorporated into the CQE in this case, Nurse Jones-Singh stated that it was her opinion to

a reasonable degree of medical certainty that “Future Care of Canton Harbor breached the

standard of care for skilled nursing facilities/post-acute rehabilitation.” Nurse Jones-

Singh’s report indicated that Canton Harbor’s nursing staff, not an unidentified health care

provider or a health care provider that was unnamed as a defendant, breached the applicable

standard of care and the breach was the proximate cause of Mr. Robinson’s injuries. Nurse

Jones-Singh’s CQE comports with the requirements set forth in Carroll.

- 21 -

Circuit Court for Baltimore City

Case No.: 24-C-22-001200

Argued: January 7, 2025

IN THE SUPREME COURT

OF MARYLAND

No. 22

September Term, 2024

CANTON HARBOR HEALTHCARE

CENTER, INC.

v.

FELICIA ROBINSON, ET AL.

Fader, C.J.,

Watts,

Booth,

Biran,

Gould,

Eaves,

Killough,

JJ.

Concurring and Dissenting Opinion

by Booth, J., which Eaves and Killough, JJ., join.

Filed: July 29, 2025

With respect to the Plurality’s opinion, I respectfully concur in part, and dissent in

part. I agree with the Plurality that a registered nurse cannot attest in a certificate of

qualified expert to the standard of care applicable to a physician or that the physician

departed from that standard of care. Plurality Slip Op. at 29. I also agree that the plaintiff’s

registered nurse expert, Anjanette Jones-Singh, is a “health care provider” under § 3-2A-

01(f)(1) of the Courts and Judicial Proceedings (“CJ”) Article (2020 Repl. Vol.) of the

Maryland Annotated Code and is qualified to attest to the breach of the standard of care for

nurses. However, I disagree that the record establishes that Nurse Jones-Singh was

qualified in this case to attest “that the departure from [the] standards of care is the

proximate cause of the alleged injury” as required by CJ § 3-2A-04(b)(1)(i).

Concerning the issue of whether identifying the proximate cause of a pressure ulcer

is within the proper scope of rendering a nursing diagnosis, the Plurality sidesteps this issue

by citing to the Appellate Court opinion and observing that “it is at least an open

question[.]” Plurality Slip Op. at 27 (citing Robinson v. Canton Harbor Health Care, Inc.,

261 Md. App. 560, 587 (2024)). Because I would not conclude on this record that

identifying the proximate cause of a pressure ulcer does not involve a medical diagnosis, I

would reverse the judgment of the Appellate Court. Moreover, even if Nurse Jones-Singh

was qualified to render an opinion on proximate cause, her certificate was insufficient as a

matter of law.

I

Facts and Procedural History

Mr. Everett Robinson’s illness and death were tragic. Mr. Robinson was transferred

to Canton Harbor from Johns Hopkins Hospital for follow up care after Mr. Robinson had

suffered a stroke. He developed decubitus ulcers and died in March 2019.

Two years later, in March 2021, Plaintiff, Felicia Robinson, individually and as the

Personal Representative of the Estate of Everett B. Robinson, filed a claim against the

defendant, Canton Harbor Healthcare Center, Inc., d/b/a FutureCare-Canton Harbor

(“Canton Harbor”), a skilled nursing facility, in Maryland’s Health Care Alternative

Dispute Resolution Office (“HCADRO”), in which she alleged medical negligence. 1

Plaintiff’s certificate of qualified expert (“certificate”) was due no later than June

2021—but none was filed. On September 3, 2021, Plaintiff filed a second request for an

extension of time to submit her certificate because she only had an expert on standard of

care and needed a causation expert. The only certificate Plaintiff ultimately submitted,

however, was from Nurse Anjanette Jones-Singh, who reviewed Mr. Robinson’s medical

records and opined that Canton Harbor “breached the standard of care and the breach was

the proximate cause of Mr. Robinson’s injuries[.]”

1

The complaint, as filed, also included a wrongful death claim filed on behalf of the

decedent and Mr. Robinson’s daughter and sons. Before the Circuit Court for Baltimore

City, counsel for Plaintiff advised that they were not pursuing the wrongful death claim,

stating: “[w]e are abandoning that and limiting it to the cause in the decubitus ulcers, the

treatment and care that needed to be – to address that issue and the medical expenses

associated with that.”

2

Plaintiff’s complaint alleged the following:

• During his admission, Mr. Robinson developed left leg ulcers that were

brought to the attention of the facility and should have been properly treated

and cared for.

• The bedsores were allowed to develop and spread to the buttocks area as well

as the inner thigh.

• As a direct and proximate cause of Canton Harbor’s neglect, the areas

became infected and Mr. Robinson was transferred to “other facilities,”

where he received further treatment and care.

• Mr. Robinson’s condition worsened, and he became septic and died.

• Canton Harbor breached the standard of care by failing to: properly turn Mr.

Robinson; perform proper skin checks; and respond to the complaint about

pressure ulcers. Canton Harbor was also otherwise negligent.

• As a direct and proximate result of Canton Harbor’s neglect, Mr. Robinson

suffered pain, incurred medical bills, and his estate incurred funeral bills.

Canton Harbor filed a motion to dismiss the complaint, contending that the certificate filed

by Plaintiff was deficient because, as a registered nurse, Nurse Jones-Singh was not

qualified to attest to the proximate cause of Mr. Robinson’s medical injuries. After a

hearing in which the circuit court considered the motion and Plaintiff’s opposition, the

court granted Canton Harbor’s motion to dismiss. Although the court noted that Nurse

Jones-Singh was qualified to attest to the standard of care and any deviation from that

standard for nurses, the court found that “a registered nurse cannot make a medical

diagnosis, and[,] therefore, cannot determine a medical condition nor the cause of a

condition.” “Therefore,” the circuit court concluded, “a registered nurse cannot attest that

3

there was a departure from the standard of care [that is] the proximate cause of the alleged

injury” as required by CJ § 3-2A-04(b)(1)(i).

We review the sufficiency of a certificate de novo. See Carroll v. Konits, 400 Md.

167, 180 & n.11 (2007); see also Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery,

P.C., 256 Md. App. 555, 567 (2022). Similarly, “[w]hen reviewing the grant of a motion

to dismiss, the appropriate standard of review ‘is whether the trial court was legally

correct.’” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 350 (2019) (quoting

Blackstone v. Sharma, 461 Md. 87, 110 (2018)). Therefore, “[w]e will affirm the circuit

court’s judgment ‘on any ground adequately shown by the record, even one upon which

the circuit court has not relied or one that the parties have not raised.’” Id. (quoting Sutton

v. FedFirst Fin. Corp., 226 Md. App. 46, 74 (2015), cert. denied, Sutton v. FedFirst Fin.,

446 Md. 293 (2016)). See also J. I. Case Credit Corp. v. Insley, 293 Md. 483, 487 (1982)

(“The settled rule is that an appellate court will ordinarily affirm a trial court’s judgment

on any ground adequately shown by the record (and even though the ground was not relied

on by the trial court).”).

For the reasons that I will more fully explain herein, Nurse Jones-Singh’s certificate

was insufficient as a matter of law.

II

Nurse Jones-Singh’s Certificate and Report

A. Nurse Jones-Singh’s Qualifications

In her initial certificate, Nurse Jones-Singh stated that she was a registered nurse

who was “familiar with and knowledgeable of the standards of care applicable to the

4

treatment and care of an individual under the circumstances of the treatment and care as

provided to Everette Robinson in this matter.” In an affidavit that appears to have been

attached to Plaintiff’s opposition to Canton Harbor’s motion to dismiss, Nurse Jones-Singh

asserted that she had been a registered nurse for over 16 years, during which time she had

“routinely perform[ed] skin evaluations on [her] patients, identified pressure ulcers,

classified the staging of each ulcer and proposed a treatment and care plan to heal the ulcer”

for more than “500 patients.” She maintained that she had “worked as a wound care nurse

. . . at Arcola Nursing and Rehabilitation Center” from 2006–2008, and she claims to have

“routinely diagnosed the cause of pressure ulcers” during that time. (Emphasis added).

Nurse Jones-Singh declared that, as “a long-term care Director of Nursing and

Resident Assessment Coordinator[,]” she had “received annual updates in the field of

wound care and pressure ulcers” and was “abundantly qualified by background, education

and experience to address the issues as to whether Mr. Robinson’s treatment was within

the standard of care and whether the failure to comply with the standard caused him injury,

which it did, in the form of a pressure ulcer.”

Nurse Jones-Singh stated that she reviewed the relevant records, which included: an

admission assessment, subsequent skin assessments, nutritional assessments, MDS, 2 care

2

The “MDS” medical abbreviation stands for the “Minimum Data Set” and is a

required assessment for all residents of nursing homes and skilled nursing facilities. It is

part of a federally mandated process for clinical assessment of all residents in Medicare or

Medicaid certified nursing homes. The process entails a comprehensive, standardized

assessment of each resident’s functional capabilities and health needs. Ctrs. for Medicare

& Medicaid Servs., Minimum Data Set Frequency, Data.CMS.gov (April 8, 2025),

https://perma.cc/38NX-3ZPP; see also 42 C.F.R. § 483.315(e); id. § 483.20(b)(1).

5

plans, physician’s progress notes, nurse practitioner’s notes, and wound evaluations. She

described Mr. Robinson’s admitting diagnoses and the various medications that were

ordered upon his admission.

B. Mr. Robinson’s Admitting Diagnoses and Medications

Mr. Robinson arrived at Canton Harbor with an extensive list of existing diagnoses

and medications. Nurse Jones-Singh’s report lists Mr. Robinson’s admitting diagnoses as:

acute embolism (artery blockage), acute laryngotracheitis (respiratory infection), alcohol

abuse, altered mental status, aphasia (difficulty speaking), atherosclerotic heart disease,

cerebral infarction (stroke), cerebrovascular disease, cocaine abuse, dysphagia (difficulty

swallowing), hypertension, hemiplegia (paralysis to one side of the body), major

depressive disorder, hyperlipidemia, seizures, and tachycardia.

Mr. Robinson was ordered the following medications upon admission: aspirin,

atorvastatin (cholesterol medication), fluoxetine (selective serotonin reuptake inhibitor),

folic acid (vitamin B9), nicotine patch, quetiapine (adjunctive treatment for major

depressive disorder), Senokot (laxative), thiamine (vitamin B1), and bromocriptine

mesylate.

While at Canton Harbor, Mr. Robinson was deemed incompetent to make his own

healthcare decisions, was unable to communicate effectively, and was completely

dependent on others for care. He therefore heavily relied on staff to turn and reposition

him, provide him with nutrition, anticipate his needs, and assist him with activities of daily

living. During his stay, Mr. Robinson developed decubitus ulcers.

6

Nurse Jones-Singh noted in her report that Mr. Robinson’s initial assessment

indicated a surgical wound to the left side of his head, and that Canton Harbor identified

him as having a high risk of developing pressure ulcers. Canton Harbor implemented

various preventative measures, including float heels, turning and repositioning, barrier

cream, and a pressure reducing mattress and cushion. Mr. Robinson nonetheless developed

skin impairment in his sacral area on August 20, 2018, which was initially classified as

Incontinence Associated Dermatitis (“IAD”). Nurse Jones-Singh stated that this

impairment thereafter “declined” to a pressure ulcer, and Mr. Robinson later had a

Suspected Deep Tissue Injury (“SDTI”).

C. Expert Opinions on Breaches of the Standard of Care

The certificate and report do not identify any individuals who are alleged to have

violated the standard of care other than Mr. Robinson’s primary care physician, Dr. Viray

Shah. Instead, Nurse Jones-Singh’s certificate lumps all of Canton Harbor’s staff together

and renders several opinions that unnamed physicians breached the physicians’ standard

of care, including failure to:

• prescribe pain medication;

• document skin alterations during nine separate assessments;

• complete an impaired skin integrity plan within 72 hours of admission; and

• prescribe an anticoagulant as an “intervention . . . to assist with tissue

perfusion” or to code the patient’s skin accurately.

The certificate’s multiple allegations about the “facility’s” alleged failures undoubtedly

relate to medical treatment provided by facility physicians. Or, in other words, the

certificate plainly alleges multiple breaches of the physicians’ standard of care. I agree

7

with the Plurality that Nurse Jones-Singh is not qualified to render expert opinions on

physicians’ standards of care or alleged breaches of the standard of care.

In addition to her opinions regarding the unnamed physicians’ violations of the

standard of care, Nurse Jones-Singh also opined that the unnamed nurses at the facility

violated the standard of care by, among other things, failing to properly: utilize a

standardized pressure ulcer risk assessment tool to assess Mr. Robinson’s risks for

developing pressure ulcers upon his admission, and at regular intervals thereafter, inspect

the skin and report any changes to the charge nurse; remove devices (such as heel booties)

to assess the skin; position and reposition Mr. Robinson in a manner that reduced friction;

provide incontinence care (such as applying skin cleansers and barrier creams); and

following family physicians’ orders.

D. Opinions on Proximate Cause

In her report, Nurse Jones-Singh rendered classic ipse dixit medical opinions about

the proximate cause of a significant medical injury. Specifically, she concluded that the

only possible cause—and thus, the only proximate cause—of Mr. Robinson’s deepening

skin injury, was negligence by “Canton Harbor.” First, she offered a medical opinion that

IAD “cannot be the etiology of a sacral ulcer.” She then opined that “a suspected deep

tissue injury is damaged [sic] to the underlying skin only caused by friction and/or

shearing.” (Emphasis added). She further opined that “Canton Harbor” must have

“directly caused the SDTI to the sacrum noted on Mr. Robinson as there is no other etiology

for this type of wound.” Nurse Jones-Singh noted that Mr. Robinson’s medical records

reflect that he had several cardiovascular-related comorbidities and an extensive history of

8

impaired circulation and that he was immobile with impaired tissue perfusion. Notably,

however, her opinion did not mention how these issues or Mr. Robinson’s other conditions

or medications may have affected the development of pressure injuries, nor did she explain

how she ruled these issues, conditions, and medications out as potential causes of the

pressure injuries in reaching her conclusory diagnosis.

As I will discuss in more detail below, “Canton Harbor”—a facility—did not

diagnose or misdiagnose any condition. That act was undertaken by one or more unnamed

physicians not identified in Nurse Jones-Singh’s report, in derogation of the requirements

for a proper certificate and report.

Nurse Jones-Singh summarized her opinions in her report as follows:

It is my opinion to a reasonable degree of nursing certainty, that [Canton

Harbor] breached the standard of care for skilled nursing facilities/post-acute

rehabilitation. Their failure increased the risk of harm, in fact harm did occur

as evidenced by Mr. Robinson’s acquired left buttock, right buttock, and

sacral ulcer with a suspected deep tissue injury.

The facts and clinical analysis in this report represent a deviation from the

acceptable nursing standard of care. This includes violations of federal state

regulations, which are part of the acceptable standard of care and also their

own policies and procedures, which are part of the acceptable standard of

care.

Because of what happened to Mr. Robinson, it was evident that there was a

lack of oversight; utilization of nursing process; care planning; critical

thinking and lack of urgency resulting in substandard care. These actions

resulted in avoidable pressure ulcers to Mr. Robinson’s left buttock, right

buttock, and sacral area.

9

III

Medical Malpractice Cases – Expert Testimony Requirements

To prevail in a medical malpractice negligence action, a plaintiff must prove four

elements: “(1) the defendant’s duty based on the applicable standard of care, (2) a breach

of that duty, (3) that the breach caused the injury claimed, and (4) damages.” Am.

Radiology Servs., LLC v. Reiss, 470 Md. 555, 579 (2020). It is well settled in Maryland

that qualified expert testimony is necessary to establish two elements: (1) the breach of the

standard of care; and (2) causation. See id. at 580 (“In the context of most medical

malpractice cases, we have articulated that ‘because of the complexity of the subject matter,

expert testimony is required to establish negligence and causation.’” (quoting Meda v.

Brown, 318 Md. 418, 428 (1990))); see also Rodriguez v. Clarke, 400 Md. 39, 71 (2007)

(“Because the gravamen of a medical malpractice action is the defendant’s use of suitable

professional skill, which is generally a topic calling for expert testimony, this Court has

repeatedly recognized that expert testimony is required to establish negligence and

causation.” (internal quotations and citations omitted)).

We require expert testimony to prove these two elements because “determinations

of issues relating to breaches of standards of care and medical causation are considered to

be beyond the ken of the average layperson[,]” Reiss, 470 Md. at 580, because they

“require[] knowledge of complicated matters,” such as “human anatomy, medical science,

operative procedures, areas of patient responsibility, and standards of care[,]” Orkin v.

Holy Cross Hosp. of Silver Spring, Inc., 318 Md. 429, 433 (1990).

10

Maryland law requires not only that the plaintiff present expert testimony on both

(1) the applicable standard of care, and (2) causation, but also that the expert testimony be

held to a “reasonable degree of medical probability to ensure that the expert’s opinion is

more than speculation or conjecture.” Kearney v. Berger, 416 Md. 628, 651–52 (2010)

(citation modified). In other words, both elements must be established “to a reasonable

degree of medical probability.” Id. (citation modified). As we explained in Reiss, “[w]hen

a medical expert is asked whether he or she holds an opinion ‘to a reasonable degree of

medical certainty’ or ‘within a reasonable degree of medical probability[,]’ such ‘wooden

phrases are required to make sure that the expert’s opinion is more than speculation or

conjecture.’” 470 Md. at 581 (quoting Joseph F. Murphy, Jr., Maryland Evidence

Handbook § 1404 at 649 (4th ed. 2010)). Indeed, “appellate courts have made clear that

expert testimony based upon anything less than a reasonable degree of probability may be

properly excluded.” Id. (quoting Karl v. Davis, 100 Md. App. 42, 52–53 (1994) (citing

Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 (1983); Hines v. State, 58 Md.

App. 637, 670 (1984))). “In addition to ensuring that the opinions are based upon more

than speculation or conjecture, the subsequent repetition of a phrase like ‘reasonable degree

of medical probability’ during the testimony of key witnesses emphasizes to the jury that

it is to view reasonableness through the eyes of a medical practitioner.” Id. at 581 (quoting

Armacost v. Davis, 462 Md. 504, 533 n.17 (2019)).

Of course, there may be rare instances in which the plaintiff is not required to

establish medical negligence or causation by expert testimony. See Meda, 318 Md. at 428

(explaining that apart from the occasional “obvious injury” case, expert testimony is

11

generally necessary to establish negligence and causation in a medical malpractice case).

When the common knowledge of laypersons is extensive enough to recognize or infer

negligence from the facts, the jury may do so without the aid of expert testimony. For

example, this Court has recognized that there is no need for expert testimony to show that

a dentist should not pull the wrong tooth, McClees v. Cohen, 158 Md. 60 (1930), that a

physician should not drop a scalpel or knife on a patient causing him to be cut, or drop

some fluid causing him to be burned, Johns Hopkins Hosp. v. Genda, 255 Md. 616, 625

(1969), amputate the wrong limb or leave a foreign object in a patient’s body, Central Cab

Co. v. Clarke, 259 Md. 542, 551 (1970), or leave a patient who has been hit by an

automobile unattended when the possibility of life-threatening internal injuries is obvious,

Thomas v. Corso, 265 Md. 84, 99 (1972).

I agree with the Plurality that a registered nurse is not able to provide expert

testimony concerning a medical diagnosis. Therefore, where the nature of a medical injury

is such that expert testimony is necessary to establish medical causation, a nurse lacks the

qualification to render an opinion on causation. Additionally, as I explain below, where a

medical malpractice claim involves a medical injury for which expert testimony is required

to establish medical causation, a nurse is also not qualified to provide a certificate under

Maryland’s Health Care Malpractice Claims Act attesting to proximate cause.

IV

Health Care Malpractice Claims Act

This Court and the Appellate Court have extensively discussed Maryland’s Health

Care Malpractice Claims Act and the legislative purpose behind its enactment, as well as

12

the amendments that followed. See Breslin v. Powell, 421 Md. 266, 278–86 (2011);

Carroll v. Konits, 400 Md. 167, 176–78 (2007); Debbas v. Nelson, 389 Md. 364, 375–80

(2005); DeMuth v. Strong, 205 Md. App. 521, 538–42 (2012). I discuss some of that

history here because it informs my statutory interpretation that, where the statute requires

one or more certificates by a qualified health care provider establishing both a breach in

the applicable standard of care and that the breach proximately caused a medical injury, a

nurse is not qualified to sign a certificate attesting to the proximate cause of the medical

injury where that opinion involves a medical diagnosis.

A. Statutory History

“In the 1970’s, medical malpractice insurers faced a dramatic increase in the number

of malpractice suits being filed and an alarming rise in the dollar amounts of malpractice

verdicts.” Debbas, 389 Md. at 375 (citation modified). In response to the crisis, “[m]edical

malpractice insurers initially responded to the dramatic rise in litigation by raising premium

rates for physicians.” Id. “When rate increases were no longer sufficient to offset the

increased costs associated with defending malpractice suits, carriers began to cease

underwriting medical malpractice insurance in Maryland.” Id.

In 1975, St. Paul Fire & Marine Insurance Company (“St. Paul”)—Maryland’s

largest malpractice insurance carrier at that time—informed the State Insurance

Commissioner that it intended to withdraw from the medical malpractice market because

it no longer considered the market to be profitable. St. Paul Fire & Marine Ins. Co. v. Ins.

Comm’r, 275 Md. 130, 134 (1975). The State Insurance Commissioner issued an order

proscribing St. Paul’s withdrawal and requiring it to continue to provide insurance

13

coverage in Maryland. Id. at 135. After the Circuit Court for Baltimore City affirmed the

Insurance Commissioner’s order, this Court reversed, holding that the Insurance

Commissioner could not require St. Paul to provide medical malpractice insurance. Id. at

143–44.

While the litigation was ongoing, the General Assembly responded to the insurance

crisis by forming a committee to study methods of reforming the legal process of pursuing

medical malpractice claims. Debbas, 389 Md. at 375–76; see also Witte v. Azarian, 369

Md. 518, 527 (2002) (“The General Assembly understood that the collapse of the

malpractice insurance market was rooted, to some extent, in the manner in which

malpractice claims arose and were resolved, and . . . considered a variety of proposals

designed to deal with those underlying issues.”).

The General Assembly passed the Health Care Malpractice Claims Act (the “Act”)

in 1976 to change the way in which malpractice claims were brought and resolved. Breslin,

421 Md. at 280; Witte, 369 Md. at 526. The Act “modified the existing medium in three

main ways[.]” Breslin, 421 Md. at 280. First, it created the Health Claims Arbitration

Office to facilitate and expedite the resolution of malpractice claims. Id. Second, “it

created, through an arbitration panel, an exclusive arbitration procedure for resolving all

claims over $5,000[.]” Id. Third, it provided that the arbitration panel’s award would be

nonbinding and that all awards could be rejected, and thereafter resolved by “traditional

judicial actions and remedies.” 3 Id. “The purpose of the arbitration system created by the

3

Over the course of the next two years, much litigation ensued, challenging the

constitutionality of the Health Care Malpractice Claims Act (the “Act”) and causing the

14

Act, and of the Act generally, was and remains to ‘discourag[e] the pursuit of non-

meritorious claims’ by revealing the weaknesses in such cases.” DeMuth, 205 Md. App.

at 538 (quoting Debbas, 389 Md. at 376) (alteration in original). The imposition of

arbitration as a condition precedent to filing suit in a circuit court, however, did little to

resolve the crisis. 4 Debbas, 389 Md. at 377.

In 1986, the General Assembly enacted a significant amendment to the Act. 1986

Md. Laws, Ch. 640. That amendment, codified at CJ § 3-2A-04, required a plaintiff to file,

early in the litigation process, a certificate of qualified expert and accompanying report

arbitration scheme not to take effect until 1978 when this Court ultimately held that the Act

was constitutional. Attorney General v. Johnson, 282 Md. 274, 313–14 (1978), appeal

dismissed, 439 U.S. 805 (1978). As this Court noted in Witte v. Azarian, “[t]he arbitration

scheme was essentially placed ‘on ice’ for about two years while challenges to its legality

worked their way through the courts.” 369 Md. 518, 528 (2002).

4

In 1983, the General Assembly adopted a Senate Joint Resolution declaring that

the cost of medical liability insurance had “increased ten-fold” since 1975 and requesting

that the Governor appoint a commission to study the issue. Breslin v. Powell, 421 Md.

266, 281 (2011); S.J. Res. 14, 1983 Md. Laws, J. Res. 9. “In 1984, Senate Bill 16 presented

several recommended changes to tort doctrines and the manner in which malpractice claims

were processed.” Breslin, 421 Md. at 281. Among its proposed changes, the Bill included

a requirement for a “certificate of a qualified expert attesting to a departure from the

standard of care or informed consent,” to be filed within 90 days of the filing of the claim,

and that the “qualified expert” selected may not receive more than 50% of his or her income

from testifying in malpractice cases. Id. (citation modified). As we explained in Breslin,

Although the Bill did not pass, its demise spawned, like a mushroom from

decay, the creation of a task force whose purpose was to investigate trends in

medical malpractice claims. In December 1985, the task force reported to

the General Assembly that, since 1984, medical malpractice liability

insurance premiums increased, depending on the medical specialty and

hospital involved, between [30] and 250 percent.

Id. at 281–82 (citation omitted).

15

attesting to a breach in the standard of care that proximately caused the alleged injuries in

any case in which informed consent was not the sole issue or in which liability was not

conceded. 5 As we explained in Debbas, the certificate requirement “was intended to

eliminate excessive damages and reduce the frequency of claims” and “consistently has

been considered as serving a gatekeeping function.” 389 Md. at 378 (citing Report of the

Joint Executive/Legislative Task Force in Medical Malpractice Insurance, at 27 & 30 (Dec.

1985)). 6

As the Appellate Court aptly observed,

Perhaps more than the health claims arbitration process itself, the certificate

requirement advanced the purpose of weeding out non-meritorious claims.

In virtually all non-informed consent medical malpractice claims, a

plaintiff’s proof that the defendant breached the standard of care must be

adduced through the testimony of an expert witness. The only exceptions are

those extraordinarily rare medical malpractice cases in which the defendant’s

act or omission is such that ordinary lay people would be able to determine

that the act or omission was a breach of the standard of care, such as

amputating the wrong leg. Thus, requiring an initial attestation by an expert

witness in support of the elements of liability in a medical malpractice case

5

As enacted in 1986, § 3-2A-04 of the Courts and Judicial Proceedings (“CJ”)

Article provided in pertinent part:

(b) Unless the sole issue in the claim is lack of informed consent:

(1) A claim filed after July 1, 1986, shall be dismissed, without

prejudice, if the claimant fails to file a certificate of a qualified expert

with the Director attesting to departure from the standards of care, and

that the departure from standards of care is the proximate cause of the

alleged injury, within 90 days from the date of the complaint.

1986 Md. Laws, Ch. 640.

6

During the General Assembly’s 1995 session, the General Assembly enacted

another major change to the Act by allowing either party to waive the entire arbitration

process. 1995 Md. Laws, Ch. 582, codified as CJ § 3-2A-06B.

16

(breach in the standard of care and causation of injury) eliminated at an early

stage cases that would never be meritorious. Likewise, liability could be

imposed against the defendant if at that initial stage the defendant could not

produce a certificate of qualified expert defending the defendant’s treatment

of the plaintiff. The effectiveness of the certificate requirement eclipsed the

effectiveness of the arbitration process, and led to amendments to the Act

that permitted waiver of arbitration, so long as the parties filed appropriate

certificates.

DeMuth, 205 Md. App. at 539 (citation modified) (emphasis added).

With this statutory history in mind, including the General Assembly’s purpose of

weeding out non-meritorious claims, I turn to the text of the statute.

B. The Text of the Act

The Health Care Malpractice Claims Act is set forth at CJ § 3-2A-01 et seq. The

Act, in general, governs procedures for all “claims, suits, and actions . . . by a person against

a health care provider[7] for medical injury[8] allegedly suffered by the person in which

damages of more than the limit of the concurrent jurisdiction of the District Court are

sought[.]” CJ § 3-2A-02(a)(1). To initiate a claim under the Act, a person with a medical

7

The Act defines “[h]ealth care provider” as

[A] hospital, a related institution as defined in § 19-301 of the Health –

General Article, a medical day care center, a hospice care program, an

assisted living program, a freestanding ambulatory care facility as defined in

§ 19-3B-01 of the Health – General Article, a physician, a physician assistant,

an osteopath, an optometrist, a chiropractor, a registered or licensed practical

nurse, a dentist, a podiatrist, a psycho

This text is long and has been trimmed here. Open the source document for the complete record.