Azarian v. Witte

779 A.2d 1043 (2001) 140 Md. App. 69 Elizabeth AZARIAN, et vir., v. Jeffrey F. WITTE. No. 812, Sept. Term, 2000. Court of Special Appeals of Maryland. September 4, 2001. ¹⁰⁴⁵ Barry J. Rosenthal (Bromberg, Rosenthal, Siegel & Goodman, and Malcolm P. Herman, on the brief), Rockville, for Appellants.

H. Kenneth Armstrong (Armstrong, Donohue, Ceppos & Vaughan, Chartered, on the brief), Rockville, for Appellee. Argued before MURPHY, C.J., and SONNER, and KRAUSER, JJ. ¹⁰⁴⁴ KRAUSER, J. The "attesting expert provision" [1] of the Maryland Health Care Malpractice Claims Act (the "Act") [2] provides that all claimants under the Act must file a "certificate of a qualified expert," more commonly known as "a certificate of merit," [3] in which an expert attests that "a departure from the standard of care" by the defendant health care provider was the proximate cause of ¹⁰⁴⁶ the claimant's medical injury. That provision, however, limits who may make such an attestation by stating that an "attesting expert may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims." [4] It is this limitation that lies at the core of this appeal. Appellants, Elizabeth and Mark Azarian, ask us to determine whether the Circuit Court for Montgomery County erred in ruling that appellants' expert was in violation of the 20 percent limitation on activities "directly involv[ing] testimony in personal injury claims" and that, as a result of the violation, their certificate was invalid.

Because a valid certificate is a precondition to maintaining a cause of action for medical malpractice both before the Health Claims Arbitration Office ("HCAO") and the circuit court, the motion for summary judgment of appellee, Jeffrey F. Witte, M.D., was granted, and appellants' claim was dismissed. This appeal is from that dismissal. Before addressing this issue, however, appellants request that we consider whether the circuit court had the "jurisdiction" to review their certificate in the first place and, if it did, whether appellee's motion for summary judgment, having been previously denied, was properly before that court. And finally, appellants question the constitutionality of the "attesting expert" provision, which they claim is unconstitutionally vague.

For the reasons that follow, we conclude that the circuit court did have the right to review appellants' certificate to determine whether it complied with the "attesting expert" provision of the Act and to grant appellee's second motion for summary judgment. We shall, however, reverse the judgment of the circuit court on the ground that it erred in ruling that appellants' expert had "devot[ed] annually more than 20 percent of [his] professional activities to activities that directly involve[d] testimony in personal injury claims" and was thus disqualified from serving as an "attesting expert." And, based on that erroneous conclusion, it incorrectly held that appellants' certificate was invalid and dismissed their claim. Accordingly, we shall reverse the judgment of the circuit court and remand this case to that court for further proceedings. Because this "`case can be properly disposed of on a non-constitutional ground,'" we shall not reach appellants' constitutional claim.

Professional Staff Nurses Assoc. v. Dimensions Health Corp., 346 Md. 132, 138 , 695 A.2d 158 (1997)(quoting State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993)). BACKGROUND On May 28, 1998, appellants, Elizabeth and Mark Azarian, filed a medical malpractice claim against appellee, Jeffrey F. Witte, M.D., in the Maryland Health Claims Arbitration Office (the "HCAO"), claiming that Dr. Witte's failure to treat properly Elizabeth's fractured ankle had resulted in, among other things, permanent and substantial neurological damage to that limb. The complaint consisted of two counts: one for malpractice and the other for loss of consortium. Three weeks later, pursuant to § 3-2A-04(b), appellants filed a certificate of merit signed by Lawrence F. Honick, M.D. In that certificate, Dr. Honick certified, among other things, that "[l]ess than twenty percent (20%) of [his] professional activities are devoted annually to activities that directly involve testimony in personal injury claims." In addition to that certificate, appellants also filed a waiver of arbitration. ¹⁰⁴⁷ Upon receipt of that waiver, the HCAO issued an order that day transferring appellants' claim to the Circuit Court for Montgomery County.

On July 21, 1998, appellants filed in the Circuit Court for Montgomery County a complaint for medical malpractice and loss of consortium. Several months later, appellee deposed Dr. Honick. As a result of that deposition, appellee filed a Motion in Limine and for Summary Judgment, seeking to bar Dr. Honick from testifying; Honick, appellee claimed, devotes annually "more than 20 percent of his professional activities to activities that directly involve testimony in personal injury claims," in violation of § 3-2A-04(b)(4). That motion was denied.

On February 1, 2000, a jury trial of this case began. On the third day of trial, Dr. Honick was called by appellants to testify as to the applicable standard of care and as to whether appellee's breach of that standard caused Elizabeth Azarian's injuries. Following the voir dire of Dr. Honick, appellee renewed his motion for summary judgment, claiming that Dr. Honick's voir dire testimony revealed that he devoted annually "more than 20 percent of the [his] professional activities to activities that directly involve[d] testimony in personal injury claims." In interpreting the "attesting expert" provision, the circuit court first construed the words "directly involve testimony" to mean "the examination, preparation, depositional, and court testimony." The court explained: [W]hen a claimant under the arbitration system comes before that system, and a physician examines not as a treating [physician], but as a forensic examining physician, and then spends time preparing with the attorney, and then spends time testifying either in deposition or in court—and I didn't include also writing up reports and the like, and reviewing other physician records, then I consider that direct activities that directly involve testimony. It then ruled that appellee had not produced sufficient evidence that Dr. Honick had violated the 20 percent limitation of the "attesting expert" provision but nonetheless permitted Honick's voir dire to continue.

Upon concluding that examination, appellee renewed his motion for summary judgment. In reviewing that motion, the circuit court stated: The Court has received the benefit of the testimony of the witness on voir dire, and the witness I think has made it abundantly clear that a large portion of his practice, and at times the way I calculate it, is 95 percent of his practice presently. But a most generous examination I think would be that it is somewhere above 50 percent, 50 percent or higher, during the period of time in which the witness certified was devoted to either what is referred to euphemistically on the board as an IME. * * * And that there were also referrals from attorneys for purposes of treatment, but that is only at most a quarter of Dr. Honick's practice. It is a fact that I find that Dr. Honick does devote more than 20 percent of his practice for the purpose of—20 percent of his professional activity is directly involved in activities that lead to testimony in personal injury claims, or could lead to testimony in personal injury claims.

And whether it actually leads to personal injury claim testimony I think is not the relevant criteria, but whether or not it could lead to it. Obviously, many claims can settle or not. ¹⁰⁴⁸ And in fact I find that Dr. Honick is greatly in excess of that at the time of the certificate and at the present time. * * * In this case, I think it is a proper motion to attack the basis of the certification, and therefore the basis to bring the claim if indeed the certifying expert has been demonstrated to have not presented the appropriate qualifications at the time of the certification. The court then stated that it was "going to reserve [its ruling] on the issue of whether or not the certification was proper." At the request of both parties, however, the court reversed its position and made the following ruling: [T]he court, in looking at the factual testimony of Dr. Honick in the light most favorable to the plaintiff, finds that 25 percent of Dr. Honick's time is devoted to the specific kind of activities which under Courts and Judicial Proceedings cannot exceed 20 percent. That is, the professional activities that directly involve testimony in personal injury claims.

And the Court treats for the purpose of this the actual testimony, the testimony preparation, the review of records, the preparation of reports, and all other forensic activity. Whether or not it results in testimony is not the issue, and that is not the standard set forth by the statute. It says directly involved testimony, and I find that Dr. Honick's activities at the time of the making of the affidavit were 25 percent or greater. Now, the question is whether or not therefore that the affidavit and certificate are adequate.

The Court finds that they are not. It is not. That if it is not, what is the sanction. * * * So, if it is not adequate, then the Health Claims Arbitration Action fails. Therefore, the Circuit Court action fails. * * * Here, where the Court finds that the certificate on its face, and based on testimony, is inadequate, inevitably leads to the conclusion that there is no basis before the Health Claims Arbitration Office; that the motion for summary judgment, or to dismiss, as might be the case—well, it would have to be summary judgment, should be granted based upon the unrebutted testimony of Dr. Honick that 25 percent of his practice at the time of the filing of the certificate was for forensic purposes.

And therefore he failed to comply with the requisites of law.... After observing that a "certificate of merit is a condition precedent to the prosecution of a medical malpractice claim," the court granted Dr. Witte's motion for summary judgment. The Azarians then filed a Motion to Alter or Amend Judgment. Following the denial of that motion, appellants noted this appeal.

DISCUSSION I Appellants contend that the circuit court has no "jurisdiction" to review any prearbitration decisions of the HCAO, including a decision by the HCAO as to the validity of a certificate of a qualified expert, more commonly known as a "certificate of merit". Assuming that to be true, they then claim that the HCAO's order, transferring this case to the circuit court, constituted a pre-arbitration decision as to the validity of the certificate and that the circuit court thus lacked the jurisdiction to review that issue. They further contend ¹⁰⁴⁹ that since the circuit court did not have "jurisdiction" to review the validity of the certificate, it erred in permitting appellee to cross examine Dr. Honick at trial regarding the substance of that certificate. Before considering the substance of appellants' claim, however, we feel impelled to address briefly what appears to be a confusion of concepts engendered by appellants' mistaken use of the term "jurisdiction" in framing this issue.

As explained by the Court of Appeals in Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982), the Health Claims Arbitration Act "does not take away the subject matter jurisdiction of a circuit court to hear and render judgments in cases involving claims which fall within the Act." Id. at 91 , 447 A.2d 860 . It merely "creates `a condition precedent to the institution of a court action....'" Id. (quoting Attorney General v. Johnson, 282 Md. 274, 284 , 385 A.2d 57 (1978)). Accordingly, the issue before us is not whether the circuit court had the jurisdiction to review the validity of the certificate but whether it had the right to so.

As to the merits of appellants' claim, we note preliminarily that the Act requires "[a] person having a claim against a health care provider for damage due to a medical injury [to] file his claim with the Director [of the HCAO]," § 3-2A-04(a)(1) and, within 90 days of that, to file "a certificate of a qualified expert with the Director attesting to departure from standards of care" by the defendant health care provider. § 3-2A-04(b)(1)(i). The Act further provides that the defendant must file, in response, an opposing certificate "within 120 days from the date the claimant served the certificate ... on the defendant." § 3-2A-04(b)(2). "The attesting expert" of either party may not be someone who "devotes annually more than twenty percent of [his] professional activities to activities that directly involve testimony in personal injury claims." § 3-2A-04(b)(4). The certificate of both parties must be accompanied by "a report of the attesting expert." § 3-2A-04(b)(3).

"Discovery is available as to the basis of the certificate" of either party. § 3-2A-04(b)(3). "After filing the certificate of a qualified expert required by § 3-2A-04(b)," "any claimant may waive arbitration at any time... by filing with the Director a written election to waive arbitration...." § 3-2A-06B(b)(1). "If the claimant waives arbitration... all defendants shall comply with the requirements of § 3-2A-04(b) of this subtitle by filing their certificates at the Health Claims Arbitration Office or, after the election, in the appropriate circuit court or United States District Court." § 3-2A-06B(b)(3). "[A]ny defendant may [also] waive arbitration at any time after the claimant has filed the certificate of qualified expert...." The defendant shall do so "by filing with the Director a written election to waive arbitration ..." § 3-2A-06B(c)(1).

If the defendant waives arbitration, he must file his certificate of a qualified expert with the HCAO, or after election of arbitration, with the circuit court. § 3-2A-06B(c)(3). In other words, a claimant must file a certificate of a qualified expert with the HCAO before either party may waive arbitration. Once the claimant's certificate has been filed, either party may waive arbitration, whereupon the defendant must file his or her certificate with the circuit court. As noted earlier, the Act provides that at least at the arbitration level "[d]iscovery is available as to the basis of the certificate." A corollary of the right of discovery is the right to challenge the certificate if discovery discloses that the attesting expert has violated the 20 percent limitation ¹⁰⁵⁰ of the attesting expert provision.

Consequently, the only question that remains is whether the certificate can be challenged, as it was here, at the circuit court level, following a waiver of arbitration. To answer that question, we first note that there is no language in the Act that restricts the right to review such a certificate to the HCAO. Moreover, to so hold would mean that where the claimant, as here, filed the certificate and waiver on the same day or where the defendant has filed his or her certificate in the circuit court following the claimant's waiver of arbitration, as required by law, the certificate in question would escape review by both the HCAO and the circuit court and thereby undermine the purpose of that provision. In the instant case, appellants filed their certificate and waiver on the same day.

Because the HCAO, pursuant to that waiver, transferred appellants' claim to the circuit court, appellee had no time to conduct discovery or otherwise challenge that certificate before the HCAO. Were we to rule, as appellants would have us do, that such a certificate cannot be challenged in the circuit court, appellants' certificate would have escaped all review. Moreover, if we were to so hold, we can anticipate that every time a claimant in the future has a questionable certificate, which might not survive tribunal scrutiny, that claimant will choose to file his or her waiver and certificate on the same day and thereby avoid review of that certificate. We do not believe that it was the legislature's intent to devise a method of review that would permit the very claims that the procedure was created to weed out to escape scrutiny.

To address that untenable result, appellants contrive a novel argument. First, they cite Marousek v. Sapra, 87 Md.App. 205, 217-20 , 589 A.2d 529 (1991), for the proposition that the circuit court has no right to review pre-arbitration rulings. Then, they claim that when the HCAO transferred this case to the circuit court, it in effect accepted the validity of the certificate and thereby rendered a pre-arbitration decision as to its validity, which, according to Marousek , they claim, renders that decision unreviewable by the circuit court. We disagree.

Once the claimant, in accordance with § 3-2A-06B(b)(1), has filed a certificate of merit and a written election to waive arbitration with the Director of the HCAO, the transfer of that case by HCAO to the circuit court is simply a ministerial function. It does not imply that the HCAO has made any determination as to the merits of that certificate. Indeed, upon the proper filing of waiver of arbitration, all further proceedings before the HCAO, including discovery, cease. It is analogous to this situation when a party requests a jury trial in the district court.

If timely made, all district court proceedings involving that case cease, and the case is thereupon transferred to the circuit court, in accordance with Md. Rule 3-325, where the circuit court reviews the merits of that request. Just as the filing of a jury request divests the district court of jurisdiction to consider the jury prayer or to conduct any further proceedings, the filing of a waiver of arbitration divests the HCAO of any right to consider the validity of a certificate of merit or to conduct any further proceedings, except to transfer the claim at issue to the circuit court. Moreover, because appellants chose to file their certificate and waiver together, no discovery had occurred regarding the basis of their certificate before the matter was transferred to circuit court. Consequently, the HCAO had no evidence before it with which to make a determination as to whether Dr. Honick's professional activities disqualified him from signing appellants' certificate as an "attesting expert." ¹⁰⁵¹ The case sub judice is thus clearly distinguishable from Marousek .

In Marousek , the issue before us was whether the circuit court had the right to review an arbitration panel's pre-arbitration ruling concerning the timeliness of a certificate of merit after the parties had waived arbitration, pursuant to § 3-2A-06A, the mutual waiver provision. As there was no prearbitration ruling in the instant case as to the validity of Dr. Honick's certificate, appellants' reliance on Marousek is inapposite. Moreover, Marousek was decided by this Court before the enactment of § 3-2A-06B(b), the "unilateral waiver provision," which was the provision invoked by appellant to waive arbitration in the instant case. Unlike § 3-2A-06A, the "mutual waiver provision," the unilateral waiver provision requires the claimant to file a certificate of merit with or before the waiver of arbitration.

It further requires the defendant to file an opposing certificate of merit in the circuit court, if the case has already been transferred there. § 3-2A-06B(b)(3) and § 3-2A-06B(c)(3). By requiring that the certificate be filed with or before the waiver and that the defendant file an opposing certificate in the circuit court, we must assume that the legislature concluded that both certificates should be and, under certain circumstances, could only be reviewable by the circuit court. In short, the Marousek ruling proscribing judicial review of pre-arbitration issues is limited to cases waived under the mutual waiver provision where the issues in question have been decided by an arbitration panel. We decline to extend that ruling to instances in which a case, as here, has been transferred to the circuit court pursuant to the unilateral waiver provision, and there has been no pre-arbitration ruling as to the issue before the circuit court.

II Appellants claim that the circuit court erred in considering appellee's second motion for summary judgment after his first motion for summary judgment had been earlier denied on what, appellants claim, was essentially the same evidence. Maryland Rule 2-501(a) provides, however, that "[a]ny party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law." Because the "denial of a motion for summary judgment is an interlocutory order... it is within the power of the trial court later to grant a renewal of a summary judgment motion." Yamaner v. Orkin, 313 Md. 508, 516 , 545 A.2d 1345 (1988) (citing Merchants Mortgage Co. v. Lubow, 275 Md. 208 , 339 A.2d 664 (1975)). Furthermore, "it is clear not only that summary judgment may be granted at any stage of the proceedings, but also that summary judgment may be granted at a later point in a case, even though denied at an earlier one." Joy v. Anne Arundel County, Maryland, 52 Md.App. 653, 660-61 , 451 A.2d 1237 (1982) (citations omitted). In other words, "the denial of a motion for summary judgment ... does not preclude resubmission of it at a later point in the proceedings," Ralkey v. Minnesota Mining and Manufacturing Co., 63 Md.App. 515, 522 , 492 A.2d 1358 (1985) (citations omitted), particularly "where there has been some change of fact or law which substantially justifies the resubmission." Yamaner, 313 Md. at 516 , 545 A.2d 1345 .

Finally, "[w]hile the trial judges may choose to respect a prior ruling in a case, they are not required to do so." Ralkey, 63 Md.App. at 522-23 , 492 A.2d 1358 . Indeed, "`as a general principle, ¹⁰⁵² one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo.'" Gertz v. Anne Arundel County, 339 Md. 261, 273 , 661 A.2d 1157 (1995) (citing State v. Frazier, 298 Md. 422, 449 , 470 A.2d 1269 (1984)); see also Md. Rule 2-602(a)(3) (providing that "an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action ..., or that adjudicates less than an entire claim ...:(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties."). In the case sub judice, appellee first moved for summary judgment before trial based entirely on Dr. Honick's deposition testimony. That motion was denied by the Honorable Michael D. Mason.

It was renewed by appellee at trial, after Dr. Honick's voir dire testimony. This time, it was granted by the trial judge, the Honorable Durke G. Thompson. Because summary judgment may be granted at any stage in the proceedings and because a second judge is not bound by an earlier judge's ruling in the same case, the trial judge properly exercised his discretion in reviewing, de novo, the second motion for summary judgment. Moreover, appellee's resubmission of his motion was entirely appropriate, given the additional information elicited from Dr. Honick as to the nature of his practice during his voir dire examination by appellee.

Expanding upon, and clarifying, his deposition testimony, Dr. Honick stated on voir dire that he had testified in court 300 to 400 times over a 30 year period; that he had had his deposition taken 300 to 400 times during that period; that of the 50 to 60 percent of his patients that are referred to him by attorneys, in half the cases "no treatment is required or requested;" that during 1997, 1998, and 1999, approximately 30 to 40 percent of his practice consisted of doing independent medical examinations; and that "[a]bout three-quarters of [his] time is treatment and the rest is evaluation probably." Thus, the circuit did not err in agreeing to consider appellee's second motion for summary judgment. III Having addressed the preliminary questions raised by appellants, we now turn to the principal issue presented by this appeal—whether the circuit court misconstrued § 3-2A-04(b)(4), the "attesting expert" provision, in ruling that Dr. Honick "devoted annually more than 20 percent of [his] professional activities to activities that directly involve testimony and personal injury claims" and therefore was disqualified from signing appellants' certificate of merit as an "attesting expert." It was based on this ruling that the circuit court granted appellee's motion for summary judgment and dismissed appellants' claim. To lay the factual context for our analysis, we shall set forth below the relevant portions of Dr. Honick's deposition and voir dire testimony. At his deposition, Dr. Honick testified as follows: Q: Is it correct to state that 90 percent or more of your practice involves patients who are in some way connected with a lawsuit or workmen's compensation claim?

A: I take care of injured people. Baltimore is surrounded by interstate highways and we have a lot of heavy industry. So basically I see people that are injured on the job or are in automobile accidents or whatever, and they become plaintiffs in litigation. So that's what orthopedic surgeons do.

All orthopods, a lot of their patients are involved in ¹⁰⁵³ litigation of some sort or another since we treat injuries. Q: Let's try that question again. Is it fair to say that more than 90 percent of your patients are patients that have either a lawsuit or a workmen's compensation claim? A: That's not accurate, no.

Q: Have you testified to that previously? A: No. Q: Describe for me then the nature of your practice. A: I think I can get around that, but your question wasn't very well put. 90 percent of my patients have some sort of litigation involved for the reasons I've just stipulated. Many of them are workers' compensation.

Most of them, to my knowledge, don't even go to the lawsuit. So what I've testified in the past and what I'm going to testify to now is that about 90 percent of my patients do have some sort of litigation involved in addition to their medical claims. * * * Q: What percentage of your work week is spent in testimony or review of records in medical malpractice cases? A: A very small percent. You can't even equilibrate per week.

Some weeks can go by that I do nothing or a week can come in where I get a big pile of records that I have to spend several hours or half a day or two half-days that week going through the records. So it's very irregular. Q: How about as far as medical-legal work in toto, how many depositions a week do you do? A: I do on the average of one deposition a month.

As