VETOES

Although House Bill 1285 would appear to prohibit any "party" or
the "party's" employees or partner from being certified as an
expert, it clearly impacts upon the defendant in much greater
terms, legally and practically, than upon the plaintiff.

It is generally recognized that a plaintiff in a medical
malpractice action must establish by expert testimony a breach of
the standard of professional care causing compensable damages.
Requiring the plaintiff to secure an independent expert for
purposes of a certificate of merit establishes no additional
burden on the plaintiff than the law already requires and the
failure to file a qualified certificate results in the dismissal
without prejudice of plaintiff's action. Indeed, a significant
reason that the Health Claims Arbitration System has been held to
be constitutional has been because it imposes no additional and
significant burdens to the parties. In Attorney General v.
Johnson, 282 Md. 274 (1978), the Court of Appeals upheld the
Health Claims Arbitration law emphasizing that it established no
new burdensome rule for a plaintiff "as the burden was always
upon the plaintiff to prove his case." 282 Md. at 293.

The burden imposed by House Bill 1285 on the defendant, however,
is greatly different including the requirement of an independent
expert and the potential entry of summary judgment on the
question of liability should the statutory requirements not be
met.

It is widely recognized that a defendant doctor may testify as
his or her own expert in a medical malpractice action. 7/ See
Dobbs v. Smith, 514 So.2d 871 (Ala. 1987); Beal v. Hamilton, 712
S.W.2d 873 (Tex.App. 1986); Landers v. Georgia Baptist Medical
Center, 333 S.E.2d 884 (Ga. 1985); Farish v. Bankers Multiple
Line Ins. Col., 425 So.2d 12 (Fla.App. 1982); Sanderson v.
Moline, 499 P.2d 1281 (Wash. App. 1972), and that an interest in
subject matter of a case goes to weight, not admissibility,
Redman v. United States, 136 F.2d 203 (4th Cir. 1943); Osborne v.
McCoy, 485 So.2d 150 (La. App. 1985); Farish, supra. Thus,
affidavits of the defendant alone have been held adequate to
defeat a plaintiff's motion for summary judgment, Landers, supra;
Parker v. Knight, 267 S.E.2d 222 (Ga. 1980). And this is
certainly the rule in Maryland. For example, in Hahn v. Suburban
Hosp. Ass'n, 54 Md.App. 685 (1983), the Court of Special Appeals
held that the hospital doctor as a qualified expert had
established the standard of care. 54 Md.App. at 694-697. And in
Reilly v. Newman, 74 Md.App. 281 (1988), a defendant doctor's
opinion statements justified summary judgment on the medical
question of whether the plaintiff was suffering from a medical
disorder. Id. at 290.

The 1986 statute that required a defendant to file a certificate
of qualified expert showed no intent to expressly override this
common law rule that defendant may act as an expert in his or her
own defense. See Floor Report on House Bill 1285 (1988)

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