Maryland’s New 25% Rule

The good news for health care providers involved in personal injury matters is that plaintiffs have failed to repeal an important rule that protects you.

Maryland’s former “20% Rule” precluded health care providers from attesting to violations of the standard of care in medical malpractice cases where they spent more than 20% of their professional time testifying in personal injury matters. In turn, Defendants used this rule to challenge over-utilized “experts” who spent a considerable amount of time doing medical-legal work.

Unhappy with the 20% Rule, the Plaintiffs’ Bar recently fought to repeal it last year in the Maryland Legislature. They failed. To avoid a repeat fight, the Plaintiffs’ and Defense Bar worked together to develop a compromise bill. As a result, the 20% Rule (now the 25% Rule) remains in effect, but with some important modifications:

  • 20% goes to 25%;
  • An expert is judged as to “professional activities” (associated with, or arising out, of medical care) within 12 months prior to the date the claim was initially filed;
  • If an expert meets the Rule at the time of filing, he or she will not be subject to collateral attack if the expert’s practice changes during the pendency of the action; and
  • If an individual is found to have violated this Rule, and the matter is dismissed after the statute of limitations has run, plaintiffs have one opportunity to refile within 120 days.

This Rule has always been vague and difficult to use in practice. Nevertheless, we have successfully used it in the past to explore an expert’s financial information and challenge an expert’s ability to testify. This new revision makes a 25% challenge more difficult though it preserves the opportunity.

If you have any questions about changes to the Rule or what this means for your insured, please contact us. Our firm was integrally involved in negotiating this bill.

John T. Sly

John T. Sly

John T. Sly is a trial attorney and partner at Waranch & Brown. His practice focuses on the aggressive defense of physicians, health care facilities, and other businesses throughout Maryland. He has successfully tried to verdict numerous high-dollar cases and has argued before state and federal appellate courts.
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