Barber v. Catholic Health Initiatives, Inc.

HOLLANDER, Judge. This medical malpractice appeal comes before us for the second time, on remand from the Court of Appeals. See Barber v. Catholic Health Initiatives, Inc., 174 Md.App. 314 , 921 A.2d 811 (“Barber I”), vacated, 400 Md. 396 , 929 A.2d 155 (2007) (per curiam) (“Barber II”). 1 In its “Per Curiam Order” of July 30, 2007, the Court of Appeals did not reach the merits of our opinion in Barber I. Instead, it directed this Court to reconsider its decision in Barber I in light of the Court of Appeals’s decision in Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007), issued on July 27, 2007. 2 ⁴¹² The matter is rooted in a negligence action filed in the Circuit Court for Baltimore County, alleging survival and wrongful death claims arising from the death of Carolyn Barber, who underwent a repeat coronary bypass on November 24, 2000, and died on the same date. An autopsy revealed that Ms. Barber’s pulmonary artery had been punctured.

On November 19, 2003, Jason Allen Barber, as Personal Representative of the Estate of Carolyn Barber, and Jason and Andrew Barber, as surviving sons of Ms. Barber, appellants, filed a Statement of Claim with the Health Claims Arbitration Office (“HCAO”) 3 against six physicians and six entities, all appellees here. They are Catholic Health Initiatives, Inc.; St. Joseph Medical Center, Inc.; St. Joseph Medical Center Foundation, Inc.; Cardiac Surgery Associates, P.A.; Cardiac Anesthesia Associates, P.A.; Redmond C. Stewart Finney, Jr., M.D.; Lope T. Villa, Jr., M.D.; Lope T. Villa, Jr., M.D., P.A.; Garth Raymond McDonald, M.D.; Paul Gerard Burns, M.D.; David R. Larach, M.D.; and Ursula Adourian, M.D. Pursuant to § 3-2A-06B of the Courts and Judicial Proceedings Article (“C.J.”) of the Maryland Code (2002 Repl. Vol.), appellants waived arbitration. On May 12, 2004, they filed suit against appellees in the Circuit Court for Baltimore County.

That court dismissed the suit after finding defective the Certificate of Qualified Expert (the “Certificate”) that was filed previously with the HCAO. That ruling was at issue in Barber I. In Barber I, 174 Md.App. at 352 , 921 A.2d 811 , we ruled that, under the facts and circumstances of this case, the Certificate, which used the words “Health Care Providers” as a defined term, and which employed the legal shorthand of “et ⁴¹³ al.,” clearly referred to the defendants who were named in the suit, and thus satisfied the requirements of C.J. § 3-2A-04(b). Moreover, assuming that the Certificate was flawed, we saw “nothing in the statute that prohibited appellants from clarifying an alleged ambiguity of the nature at issue here by way of [two] affidavits from the attesting expert.” Id. at 353, 921 A.2d 811 . In addition, we concluded that the circuit court abused its discretion in failing to allow an extension of time for appellants to file a new Certificate, or in permitting appellants to make such a request to the Director of the HCAO.

Id. at 359 , 921 A.2d 811 . Claiming that Carroll does not conflict with our holdings in Barber I, appellants urge us not to disturb our original rulings. Conversely, appellees maintain that Carroll , and the principles underlying it, require us to affirm the circuit court. The task now before us is to determine whether Carroll requires us to reverse our decision in Barber I. FACTUAL AND PROCEDURAL BACKGROUND 4 Appellants filed a “Claim Form” with the HCAO on November 19, 2003.

Barber, 174 Md.App. at 316 , 921 A.2d 811 . Under the section entitled “HEALTH CARE PROVIDER(S),” and continuing on an addendum with another title of “Health Care Provider(s),” appellants specifically identified each of the appellees — six physicians and six entities — by full name and address. Id. at 318 , 921 A.2d 811 . On the same date, appellants filed a “Statement of Claim” with the HCAO, pursuant to the Health Care Malpractice Claims statute (the “Act”), C.J. §§ 3-2A-01 to 3-2A-09, in which they again specifically named all twelve appellees in the caption.

Id. At the end of the caption, all twelve were identified collectively as “Health Care Providers.” Id. In addition, all twelve were again specifically mentioned in the text of the Statement of ⁴¹⁴ Claim, and were referred to collectively as “Health Care Providers.” Id. Appellants timely filed their “Claimants’ Certificate Of A Qualified Expert,” along with a medical report signed by Kenneth M. LeDez, M.B., Chg., FRC, on February 17, 2004.

Id. at 319, 921 A.2d 811 . The Certificate’s caption listed appellants as “Claimants.” In regard to the opposing parties, it stated: “CATHOLIC HEALTH INITIATIVES, INC., a/k/a CATHOLIC HEALTH INITIATIVES, et al.” The words “Health Care Providers” appear underneath the name of that entity. Id. 5 The text of the Certificate provided, in part: I HEREBY CERTIFY that I have reviewed the medical records and/or other documentation pertaining to the history, conditions, injuries, and death of Carolyn Barber, as such relate to the incidents involved herein. I HEREBY CERTIFY that there were departures from and/or violations of the standards of medical care rendered to Carolyn Barber by the Health Care Providers.

Such departures and/or violations were the direct and proximate cause of injury to Carolyn Barber, and were a substantial factor in causing her death. Id at 319-20, 921 A.2d 811 (emphasis added by Barber I). The accompanying certificate of service listed the names of all twelve appellees. Id. at 320 , 921 A.2d 811 .

Dr. LeDez’s medical report of February 16, 2004, is also relevant. It provided, in part: I have reviewed the medical records and other pertinent materials regarding Carolyn Barber. I have concluded that the care rendered by the Health Care Providers fell below and deviated from the accepted medical standards for health care providers of similar training and experience. Furthermore, it is my opinion that such Health Care Providers’ actions or omissions did proximately cause injury to Caro ⁴¹⁵ lyn Barber, and was a substantial factor in causing her death.

Id. (Emphasis added by Barber I.) As noted, appellants filed suit in the circuit court on May 12, 2004. Shortly thereafter, on July 15, 2004, this Court issued its decision in the case of D’Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631 , 853 A.2d 813 , cert. denied, 384 Md. 158 , 862 A.2d 993 (2004). The filing of D’Angelo prompted appellees to move to dismiss the suit filed in this case.

They argued that the Certificate did not comply with the requirements of C.J. § 3-2A-04, because appellants failed to name each defendant, either in the caption or in the text. Id. at 321, 921 A.2d 811 . In their response, appellants maintained, inter alia, that the Certificate complied with the statute, because each defendant was fully identified on the Claim Form and on the Statement of Claim filed with the HCAO, and were collectively identified as “Health Care Providers,” a reference to a discrete group of persons and entities. Id. at 321 , 921 A.2d 811 .

Nevertheless, they submitted an affidavit from Dr. LeDez, dated November 23, 2004, and a Supplemental Affidavit on January 25, 2005, clarifying that, by using the term “Health Care Providers” in the Certificate, he was referring to all of the defendants (appellees) identified previously in the Statement of Claim. Id. Following a hearing held on January 31, 2005, the circuit court granted the motions to dismiss, in an Order of February 2, 2005. Id. at 323, 328 , 921 A.2d 811 .

On February 11, 2005, appellants filed a “Motion for Reconsideration, or in the Alternative, Motion for Leave to file Supplemental Certificate of Qualified Expert, Nunc Pro Tunc.” Id. at 329 , 921 A.2d 811 . The circuit court denied that motion on March 15, 2005. Id. The first appeal followed.

In Barber I, we reversed and remanded. As noted, we concluded that the court erred in dismissing the case on the ground that the Certificate did not re-name all twelve appellees, because they were referred to collectively as “Health Care Providers,” a defined term that clearly referred to the ⁴¹⁶ discrete group of persons and entities previously identified in earlier HCAO submissions. Id. at 350-51 , 921 A.2d 811 . In addition, we considered it salient that, after naming Catholic Health Initiatives in the caption of the Certificate, appellants used the common legal abbreviation of “et al.,” which we regarded as a clear reference to all of the defendants identified in the prior HCAO submissions.

Id. at 351-52 , 921 A.2d 811 . We also relied on C.J. § 3-2A-02(d), which provides that, unless otherwise indicated, “the Maryland Rules shall apply to all practice and procedure issues arising under this subtitle.” (Emphasis added.) Barber I, 174 Md.App. at 352 , 921 A.2d 811 . In turn, Md. Rule l-301(a) governs the “form of court papers” and provides: “An original pleading shall contain the names and addresses ... of all parties to the action____ In other pleadings and papers, it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.” (Emphasis added.) As indicated, even if the Certificate was flawed, we reasoned that Dr. LeDez’s two affidavits clarified that, by his use of the term “Health Care Providers” in the Certificate, he was referring to all of the defendants named in the Statement of Claim. Id. at 353 , 921 A.2d 811 .

Upon our review of the statutory scheme, we saw “nothing in the statute that prohibited appellants from clarifying an alleged ambiguity of the nature at issue here by way of affidavits from the attesting expert.” Id. at 331 , 921 A.2d 811 . We also distinguished D’Angelo and a second case, Walzer v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006). Id. at 351 , 921 A.2d 811 . In the alternative, we held that the court should have permitted the filing of a revised Certificate, explaining, id. at 359 , 921 A.2d 811 : On the facts of this case, in which appellants timely filed a Certificate whose alleged flaws came to light on the basis of an appellate opinion filed months later, and where a dismissal without prejudice was the same as a dismissal with prejudice because limitations had expired, we believe the court should have vacated the judgment and permitted ⁴¹⁷ appellants to seek a good cause extension, either from the court itself or the Director.[ 6 ] DISCUSSION I. Before reviewing the contentions in the parties’ memoranda, we pause to review Carroll , which led the Court of Appeals to vacate Barber I and remand to us for reconsideration.

Dr. Efem E. Imoke performed a unilateral mastectomy on Mary Carroll on September 19, 2001. Carroll, 400 Md. at 172 , 929 A.2d 19 . To facilitate the administration of chemotherapy, Dr. Imoke left a catheter inside Carroll’s chest, which was supposed to be removed within two months after completion of chemotherapy. Id. at 172-73 , 929 A.2d 19 .

Dr. Imoke, however, did not schedule an appointment to remove the catheter. Id. at 173 , 929 A.2d 19 . Instead, he relied on Dr. Phillip H. Konits, Carroll’s oncologist, to notify him when Carroll’s chemotherapy was completed. Id.

Carroll completed chemotherapy on April 11, 2002, but the catheter was not removed until March 25, 2003. Id. On March 25, 2005, Carroll filed a complaint with the Health Care Alternative Dispute Resolution Office (the “HCADRO”). 7 Id. She alleged “that Drs.

Konits and Imoke were negligent in failing to communicate the need to have the catheter removed in a timely manner.” Id. Further, she alleged that the prolonged presence of the catheter caused pain, suffering, and various medical problems. Id. Just over four months later, on August 4, 2005, Carroll filed a letter signed by Dr. Wanda J. Simmons-Clemmons, which purported to be a Certificate.

Id. After reciting Carroll’s medical treatments, Dr. Simmons-Clemmons wrote, id. at 173-74 , 929 A.2d 19 : ⁴¹⁸ “In my professional opinion, there was no clear communication to the patient that indicated she should seek medical attention in the removal of the catheter from her chest after chemotherapy was completed. If this was done, it was not documented. Secondly, there was mention made of an approximate time chemo should be completed by Dr. Konits in his consult dated January 31, 2002.

The note was signed off by Dr. Ohio; however, there was mention of completion of chemo in multiple subsequent office visits. Also, the patient was to follow-up with Dr. Imoke in September 2002. Again, no mention was made that the patient should call sooner if and when chemo ended. Neither was the patient recalled for her September 2002 follow-up.

If this was done I do not have a copy of the documentation of it. Thirdly, it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for too long[,] i.e. A DVT and chronic venous stasis of the right arm with chronic lymphedema.” On October 3, 2005, Drs. Konits and Imoke moved to dismiss the claim with the HCADRO, arguing that Dr. Simmons-Clemmons’s documentation was deficient under the requirements set forth in C.J. § 3-2A-04(b).

Id. at 174-75, 929 A.2d 19 . They argued that Carroll failed to file a Certificate and that “she merely tendered an informal, unsworn letter.” Id. at 175 , 929 A.2d 19 . The Director granted Carroll’s request for an additional 60 days to correct the deficiencies in her submission. Id.

On October 28, 2005, in an attempt to rectify the defects in the original certificate, Carroll submitted an amended document. Id. The certificate again included a summary of Carroll’s medical visits and treatments, largely the same as the language quoted supra, with the exception that Dr. SimmonsClemmons altered the text from “it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for too long” to “having a catheter in place for longer than what is standard treatment[.]” Id. Additionally, a new paragraph was added to the second letter, which stated: “It is my professional opinion that Mrs. Carroll sus ⁴¹⁹ tained injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy.

Please be advised that I do not devote more than 20 percent of my annual time to activities that directly involve personal injury claims.” Id. Dr. Konits renewed his motion to dismiss on December 2, 2005, claiming that the updated certificate still failed to meet the specific requirements of § 3-2A-04(b). Id. On or about the same date, Carroll waived arbitration and the matter was transferred to the Circuit Court for Baltimore City.

Id. Dr. Konits moved to dismiss on December 30, 2005, asserting the same grounds, i.e., “that the certificate and report[ 8 ] did not comply with the relevant provisions of the statute.” Id. at 176, 929 A.2d 19 . The circuit court dismissed the case against Dr. Konits on March 22, 2006. Id.

The Court of Appeals affirmed. After setting forth the history of the “Health Care Malpractice Claims Statute” and the statutory background of C.J. § 3-2A-04(b), the Court concluded that, according to “the plain language” of C.J. § 3-2A-04(b), a Certificate “must contain the qualified expert’s affirmation as to two separate conditions-(l) that the defendant-physician departed from the standards of care, and (2) that such a departure was the proximate cause of plaintiffs alleged injury.” Id. at 194, 929 A.2d 19 . In the Court’s view, Dr. Simmons-Clemmons’s “purported replacement Certificate” did not satisfy the second requirement, but “arguably” may have satisfied the first condition under § 3-2A-04(b). Id.

The Court noted, id. at 194-95, 929 A.2d 19 : As to the second and unsatisfied requirement, Dr. Simmons-Clemmons stated that: “It is my professional opinion that Mrs. Carroll suffered injury secondary to below standard of care received in ⁴²⁰ regards to removal of the Hickman catheter after chemotherapy.” We assume that when Dr. Simmons-Clemmons stated that Carroll’s injury was “secondary to below standard of caret,]” that she meant the treatment given to Carroll fell below the standard of care. Notwithstanding this assumption, Dr. Simmons-Clemmons failed to state, with clarity, that the treatment Carroll received or failed to receive, fell below the standard of care and was the proximate cause of her injuries. In fact, at no point, did she state that the alleged departure from the standard of care was the proximate cause of Carroll’s injuries. 1 -- 1 Of import here, the Court expressly agreed with Drs. Konits and Imoke, who “interpret the language of § 3-2A-04(b) as requiring that the Certifícate identify the specific individual or individuals who breached the standard of care.” Id. at 195-96, 929 A.2d 19 .

According to Drs. Konits and Imoke, “the purported Certificate is incomplete because it fails to identify specifically the licensed professionals against whom Dr. Simmons-Clemmons’s claims applied,” id., and the Court said: “Again, we agree.” Id. at 196 , 929 A.2d 19 The Court reasoned, id. at 196 , 929 A.2d 19 : Maryland law requires that the Certificate mention explicitly the name of the licensed professional who allegedly breached the standard of care. See Witte [v. Azarian,], 369 Md. [518, 521, 801 A.2d 160 (2002)], 801 A.2d at 162 (explaining that “unless ... the claimant files with the [Health Care Alternative Dispute Resolution Office] a certificate of a qualified expert attesting that the defendant’s conduct constituted a departure from the standard of care and that the departure was the proximate cause of the alleged injury, the claim must be dismissed ...”) (emphasis added); McCready [Memorial Hospital v. Hauser, 330 Md. 497, 500 , 624 A.2d 1249 (1993)], 624 A.2d at 1251 (articulating that “the plaintiff must file a Certificate of Qualified Expert (expert’s certificate) attesting to a defendant’s departure from the relevant standards of care which proximately caused the plaintiffs ⁴²¹ injury”) (emphasis added); Watts v. King, 143 Md.App. 293, 306 , 794 A.2d 723, 731 (2002) (stating that claimants are “required to file a certificate of a qualified expert attesting that the licensed professional against whom the claim was filed breached the standard of care.”) (emphasis added); D’Angelo, 157 Md.App. at 646 , 853 A.2d at 822 (concluding that the expert’s certificate must include the name of the licensed professional against whom the claims were brought because, without that information, “the certificate requirement would amount to a useless formality that would in no way help weed out non[-]meritorious claims.”). We believe that this requirement is consistent with the General Assembly’s intent to avoid, non-meritorious claims.

Moreover, it is reasonable because the Certificate would be rendered useless without an identification of the allegedly negligent parties. When a Certificate does not identify, with some specificity, the person whose actions should be evaluated, it would be impossible for the opposing party, the HCADRO, and the courts to evaluate whether a physician, or a, particular physician out of several, breached the standard of care. (Emphasis added.) The Court noted that the certificate in issue included the names of five physicians, only two of whom were named as defendants. In addition to Dr. Imoke and Dr. Konits, it also mentioned a Dr. Ohio, an unnamed cardiologist, and an unnamed primary care physician.

Id. at 197, 929 A.2d 19 . Moreover, the Court observed that Dr. Simmons-Clemmons “stated very generally that ‘there was no clear communication to the patient----’ ” Id. In the Court’s view, she “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. Equally egregious, however, is that the Certificates failed to state what the standard of care was or how Dr. Imoke or Dr. Konits departed from it.” Id.

The Court explained, id. at 198 , 929 A.2d 19 : A general assertion, such as the one made by Dr. Simmons-Clemmons, that there was “no clear communication to ⁴²² the patient” by unspecified doctors regarding the timing of the removal of the catheter is deficient in two respects. Dr. Simmons-Clemmons did not explain in the Certificate the requisite standard of care owed to Carroll. SimmonsClemmons also failed to state which doctor, or doctors, owed Carroll a specific duty under that standard. Without such statements by Dr. Simmons-Clemmons, the deficiencies in both the first and second Certificate go well beyond the issue of identity and proximate cause.

The Certificates are wholly lacking in any assertion that either defendant departed from an applicable standard of care. They do not even come close to complying with the statutory requirement. We therefore conclude that the alleged Certificate was also deficient in this respect and that the Circuit Court was correct in dismissing the case on the grounds that Carroll failed to file a proper Certificate. This conclusion is in accordance with this Court’s interpretation of the application of the statutory requirements for the filing of medical malpractice claims.

(Emphasis added.) The Court concluded, id. at 201 , 929 A.2d 19 : For the foregoing reasons, we hold that a Certificate is a condition precedent and at a minimum, must identify with specificity, the defendant(s) (licensed professional(s)) against whom the claims are brought, include a statement that the named defendant(s) breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiffs injuries. In the case sub judice, the [Certificate was incomplete because it failed to specifically identify the licensed professionals who allegedly breached the standard of care and failed to state that the alleged departure from the standard of care, by whichever doctor, or doctors, the expert failed to identify, was the proximate cause of Carroll’s injuries. Therefore, because the Certificate is a condition precedent, the Circuit Court for Baltimore City correctly granted the appellees’ motion to dismiss the case and, accordingly, we affirm the judgment of the Circuit Court for Baltimore City. ⁴²³ Several other points are noteworthy. The Court observed that, under C.J. § 3-2A-02(d), the Maryland Rules “control the practice and procedure arising from the Health-Malpractice Claims Subtitle.” Id. at 183 n. 13, 929 A.2d 19 .

In turn, Md. Rule l-204(a) provides: “When these rules or an order of court require or allow an act to be done at or within a specified time, the court, on motion of any party and for cause shown, may (1) shorten the period remaining, (2) extend the period if the motion is filed before the expiration of the period originally prescribed or extended by a previous order, or (3) on motion filed after the expiration of the specified time period, permit the act to be done if the failure to act was the result of excusable neglect.... ” (Emphasis added.) Notably, relying on Navarro-Monzo v. Washington Adventist Hosp., 380 Md. 195, 200-04 , 844 A.2d 406 (2004), the Court expressly rejected Dr. Konits’s argument “that no extension could be granted for good cause because Carroll did not request the good cause extension within the 180-day period.” Id. at 184, 929 A.2d 19 . In light of the Court’s resolution o f the case, it declined to resolve Dr. Konits’s claim that “the Director lacked good cause to grant Carroll’s extension.” Id. Nevertheless, citing McCready Memorial Hospital v. Hauser, 330 Md. 497, 509 , 624 A.2d 1249 (1993), the Court characterized good cause extensions as “ ‘malleable,’ ” noting that they provide “room for the Director’s discretion.” Id. at 185, 929 A.2d 19 . Significantly, the Court observed: “In accordance with the statutory language and consistent with our prior case law, we believe that the General Assembly made it clear that the good cause extensions are discretionary and without time limitations, so long as the Claimant demonstrates good cause.” Id.

II

The parties vigorously disagree about the effect of Carroll on the case sub judice. Appellants contend, inter alia, that they satisfied the statutory requirements by fully listing each ⁴²⁴ defendant on the Claim Form and on the Statement of Claim submitted to the HCAO, and then defining them collectively by the term “Health Care Providers.” In addition, they argue that the use of “et al.” after the lead name in the Certificate, along with the use of the defined term of “Health Care Providers,” clearly referred to the defendants identified previously in HCAO submissions. Thus, they insist that appellees were fully aware of the identities of the particular health care providers who allegedly deviated from the standard of care and proximately caused injury to the decedent. Appellants assert: Here, the Defendants/Health Care Providers ... were individually listed on the Claim Form under the heading of Health Care Providers, individually listed in the caption of the Statement of Claim and identified as “Health Care Providers,” and individually listed in the certificate of Service attached to the Certificate of Qualified Expert and Report.

Under these circumstances, referring to them in the Certificate of Qualified Expert collectively as Health Care Providers is mentioning them explicitly and/or identifying them with specificity. There can be no question as to who were the “Health Care Providers” mentioned in the Certificate and Report. It would be ridiculous to argue otherwise. Further, pointing to the use of “et al.”, coupled with Md. Rule 1-301, appellants contend: [Tjhere can be no confusion about who is being referenced when the term “Defendants” or “Health Care Providers” is utilized.

In pleadings and papers filed after the original pleading (such as the Statement of Claim), it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Here, the caption of the Certificate of Qualified Expert identified the Health Care Providers as “Catholic Health Initiatives, Inc., a/k/a Catholic Health Initiatives, et al. ” (emphasis supplied). ⁴²⁵ They add: “If the Court of Appeals intended to hold that the Health Care Providers’ actual names must be included in the Certificate, it would have stated that. It did not.” In addition, appellants rely on the two affidavits filed by their expert. They contend that any ambiguity was cured by those affidavits.

They assert: “To the extent that there was any confusion, Dr. LeDez’s two Affidavits make clear that by “Health Care Providers” he meant all of those licensed professionals listed in the Claim Form and Statement of Claim.” Appellants concede that Carroll requires a certificate to “state that the named Health Care Providers breached the standard of care and that the departure from the standard of care proximately caused injury.” But, they maintain that their Certificate met this standard by stating that “there were departures from and/or violations of the standard of care rendered to Carolyn Barber by the Health Care Providers. Such departures and/or violations were the direct and proximate cause of injury to Carolyn Barber, and were a substantial factor in causing her death.” Further, appellants insist that Carroll “does not disturb” our holding in Barber I that the circuit court “has the authority to grant an extension of time” to file a revised Certificate under C.J. § 3-2A-04(b)(5) and 3-2A-05(j). They observe that C.J. § 3-2A-04(b)(5) is silent as to the circuit court’s authority to issue an extension of time and, “[a]s such, the Circuit Court had the authority and ability to grant an extension of time[.]” Appellants note that the circuit court dismissed this case pursuant to C.J. § 3-2A-04(b)(l), which does not reserve power in the circuit court to dismiss a claim. They suggest that, “if the Circuit Court has the authority to dismiss the case without such authority being specifically vested in it by the statute,” it should “likewise have the authority to grant an extension of time for good cause shown.” Moreover, appellants insist that they showed good cause and were entitled to an extension of time to file another Certificate. ⁴²⁶ According to appellants, “The factual and legal scenarios of Carroll and the instant case are easily distinguishable,” and “[t]hese distinctions are significant.” Appellants assert: “The Court of Appeals did not hold that a Certificate must contain the proper name of the Health Care Providers in order to survive statutory scrutiny.” They argue: “What Carroll stands for is that the licensed professionals as to whom the Certificate (and Report) applies must be mentioned explicitly and/or identified with specificity in such a way so that the opposing party(ies), the HCADRO and the court know to whom it refers.

None of these requirements dictate that proper names be included in the Certificate.” Because the Statute is in derogation of the common law, appellants maintain that it should be strictly construed. Appellees inject a new issue in this appeal: they now challenge the adequacy of the contents of the Certificate. Appellees acknowledge that in the briefs they submitted in connection with Barber I , they never discussed or challenged the adequacy of the content of the Certificate. But, claiming that this “is an integral part of the reasoning” in Carroll and Walzer, they maintain that they may raise a challenge to the “adequacy” of the Certificate “at any time,” because the filing of a proper certificate is a condition precedent to the filing of a medical malpractice action.

Characterizing Carroll as “the culmination of a series of opinions ... interpreting the statutory requirement of a Certificate of Merit as a condition precedent” to the institution of medical malpractice action, appellees argue: [T]he certificate of merit is more than a mere formality, and actually requires a health care malpractice claimant to obtain an expert’s