Crystal v. Midatlantic Cardiovascular Associates, P.A.

KRAUSER, C.J. Jan Crystal, appellant, filed a claim with the Health Care Alternative Dispute Resolution Office, against appellees: Midatlantic Cardiovascular Associates, P.A. (“Midatlantic”); St. Joseph Medical Center, Inc. (“SJMC”); and Mark G. Midei, M.D. (“Dr. Midei”), based upon the implantation of an allegedly unnecessary stent in Crystal’s left anterior descending coronary artery (which we shall, as the parties do, refer to as the “LAD.”) When arbitration was waived, Crystal filed a complaint in the Circuit Court for Baltimore County, alleging medical malpractice, fraud by intentional misrepresentation, and fraud by concealment. 1 The claim of medical malpractice was alleged as to all three health care providers, but the claim of fraud by misrepresentation was brought against only Dr. Midei, and the claim of fraud by concealment was directed at only SJMC. After discovery was concluded by the parties, the circuit court granted appellees’ motions for summary judgment, con- ²¹⁷ eluding that there was no evidence to support Crystal’s claim of fraud by intentional misrepresentation, against Dr. Midei, or his claim of fraud by concealment, against SJMC.

It, then, as a consequence of having disposed of Crystal’s fraud claims, granted summary judgment as to his remaining medical malpractice claims against Midatlantic, SJMC, and Dr. Midei, as Crystal’s fraud claims, having been disposed of on summary judgment, could no longer be deemed to have tolled the statute of limitations, which had long since run on his medical malpractice claims. From those rulings, Crystal noted this appeal, contending that the court had erred in granting appellees’ motions for summary judgment as to all of his claims, and thus his claims of fraud and medical malpractice should be resurrected by this Court. For the reasons set forth below, we shall affirm. I. Background In October of 2004, after experiencing chest pain, shortness of breath, and a feeling of tightness in his chest, Crystal underwent a “cardiac catheterization,” 2 a procedure used to evaluate and diagnose cardiovascular conditions.

During that procedure, it was discovered that there was a “stenosis” — that is, an abnormal narrowing 3 — of Crystal’s LAD. The level of stenosis in that artery had reached 95%. To address that condition, a stent was placed in Crystal’s LAD. Yet, notwithstanding the successful completion of that procedure, Crystal continued to experience shortness of breath.

Consequently, his cardiologist recommended that he undergo ²¹⁸ another cardiac catheterization. That second catheterization was to be performed by appellee, Dr. Midei, a cardiologist with appellee, Midatlantic. 4 Before undergoing this procedure, however, Crystal signed, on November 4, 2004, 5 a “Cardiac Catheterization Laboratory Procedure Consent Form,” which authorized Dr. Midei “to perform one or more” of a number of medical procedures, including a “heart catheterization,” a “coronary angiography,” and a “stent implantation.” Specifically, it stated, in pertinent part: I consent to and authorize Dr. Mark Midei and his/her assistants to perform one or more of the following procedures: Heart catheterization and coronary angiography, possible coronary angioplasty-type procedures (angioplasty, atherectomy, stent placement ...), and possible peripheral angiography. Please read the explanations below. Heart catheterization with coronary angiography is a diagnostic procedure to define the presence, nature, and extent of heart disease.

The physician inserts a small tube or catheter into an artery and/or vein in the leg or arm and advances it to the heart. The physician will inject dye through the catheter, take pictures of the arteries or grafts to the heart, and measure pressures in the heart. The results of this test will help determine if medication, an angioplasty-type procedure, or bypass surgery is the best treatment. ²¹⁹ Coronary or peripheral angioplasty-type procedures (angioplasty, atherectomy, stent placement) are therapeutic procedures to open blockages in coronary or peripheral arteries or bypass grafts. The physician will perform coronary or peripheral angiography, then advance a thin guidewire across the blockage and then select the most appropriate procedure(s) to open the blockage____ Stent implantation is a procedure where the physician inserts a metal stent (mesh-like tube) at the site of the blockage which is left in place to hold the artery open. * * * Notably, the form did not contain any requisite degree of blockage that would require or preclude the implantation of a stent, but instead left the decision, of whether to place a stent, to the medical judgment of Dr. Midei.

Notwithstanding Crystal’s pre-operative consent to the procedure, it was Crystal’s claim that Dr. Midei, though not required to do so, informed him, during the course of the procedure, but before the implantation of the stent, of the level of stenosis in his LAD. According to Crystal, Dr. Midei, before placing the stent, advised him, as he lay on the operating table, that the stenosis in question had reached 70% (though the laboratory report he later prepared suggested an even higher level of stenosis, that is, 80%) and that he would need a stent to avoid a complete blockage of the artery. Dr. Midei then placed another stent in Crystal’s LAD. At his deposition, nearly ten years later, Crystal, in recalling the deliverance of that advisement by Dr. Midei, testified as follows: [Counsel]: Prior to the beginning of the cardiac catheterization procedure that [Dr. Midei] performed on November 22, do you remember talking to him? [Crystal]: Just in the lab. [Counsel]: I understand.

On that morning before he started the catheterization procedure, do you remember talking to Dr. Midei? [Crystal]: No. ²²⁰ [Counsel]: Do you remember someone going over a consent form with you? [Crystal]: I don’t recall. [Counsel]: Do you know if you signed a consent form? [Crystal]: I don’t recall. I am sure I had to, but I don’t recall. [Counsel]: What do you remember Dr. Midei saying during the procedure, if anything? [Crystal]: He pretty much started the same way that Dr. Brinker did. I’m going to do this. You’re going to feel that.

And it wasn’t long into the procedure that he told me I had a 70 percent blockage in my LAD. Now those letters sounded pretty familiar to me. [Counsel]: Okay you remember him saying anything else? [Crystal]: You would need this stented to keep it from blocking completely. [Counsel]: Are you paraphrasing what you remember that he told you or are those Dr. Midei’s exact words? [Crystal]: I can’t remember back 10 years. So I’m assuming. I’m paraphrasing.

Five years after the stent implantation at issue, in 2009, Crystal read a newspaper article suggesting that Dr. Midei had been performing “unnecessary” stent implantation procedures. That article led Crystal to contact an attorney. Two years later, in 2011, almost seven years after the stent implantation procedure had been performed by Dr. Midei, Crystal filed a claim, with the Health Care Alternative Dispute Resolution Office, against the three appellee health-care providers. Crystal filed, with that claim, a certificate of qualified expert, naming Herbert Fischer, M.D., as that expert, and Dr. Fischer’s report.

In both the certificate and his report, Dr. Fischer opined that Dr. Midei had breached the standard of care applicable to stent implantation procedures by implanting a stent when there had been “insufficient evidence to justify” such a procedure. Arbitration was thereafter waived, and the case was transferred to the Baltimore County circuit court. ²²¹ Summary Judgment Proceedings In the Baltimore County circuit court, appellees subsequently moved for summary judgment, contending that Crystal had failed to generate a dispute of material fact as to his claims of fraud by intentional misrepresentation and fraud by concealment. And, because, in their view, there was no evidence of fraud, the five-year medical malpractice statute of limitations, which had long since run on Crystal’s medical malpractice claims, had not been tolled by those fraud claims and, therefore, those medical malpractice claims should be dismissed, by the court, as time-barred. Crystal responded to appellees’ motions by asserting that there was a dispute of material fact as to, at least, his claim of fraud by intentional misrepresentation because there was evidence that Dr. Midei had “deliberately misled” Crystal to induce him to undergo the stent implantation procedure in question.

That evidence, Crystal pointed out, was Dr. Fischer’s deposition testimony that, at the time Dr. Midei implanted the second stent, the level of arterial stenosis was “about a 30 percent stenosis at the maximum,” though, at the same deposition, he later increased that estimate of stenosis to 30-40%. 6 And that testimony, noted Crystal, contradicted Dr. Midei’s statement that Crystal had a 70% stenosis in his artery, as well as Midei’s subsequent description of an 80% stenosis in his laboratory report. “A jury could readily conclude” from that “large discrepancy,” avowed Crystal, that Dr. Midei “knew at the time of the stent implantation that there was nowhere near” a 70% or 80% stenosis and that he “deliberately misled” Crystal by so stating and thereby inducing Crystal to undergo the stent implantation procedure. Such evidence, Crystal further asserted, created a “jury question” as to whether Dr. Midei committed fraud, by mis ²²² representing the actual level of stenosis in Crystal’s LAD, which, if proved, would toll the statute of limitations as to his medical malpractice claim. Crystal then urged the court to deny summary judgment as to his claim of fraud by concealment, which was alleged solely as to SJMC, because the medical center was, he claimed, “[vicariously] liable for the fraudulent concealment acts of Dr. Midei.” 7 The circuit court, following a hearing on appellees’ motions, granted summary judgment, as to all three counts. In so doing, the court explained that, as to the claim of fraud by misrepresentation against Dr. Midei, it was not persuaded by Crystal’s contention that the “difference of opinion” between Dr. Fischer and Dr. Midei, regarding the level of stenosis in his LAD, constituted evidence that Dr. Midei had, knowingly or with reckless indifference, made a false statement to Crystal with respect to that level.

It therefore granted summary judgment as to that count, because Crystal, in its view, had “failed to proffer evidence of a genuine issue for trial on: whether Dr. Midei knowingly made a false representation; whether he intended to defraud Mr. Crystal; and/or whether Mr. Crystal relied on misrepresentations by Dr. Midei in consenting to the procedure.” The court also explained that it was granting summary judgment as to the claim against SJMC for fraud by concealment because: First, it was “not aware of any authority for the proposition that SJMC or any health care provider, generally, has a duty to disclose to patients prior instances of medical malpractice,” and, second, “even if [SJMC] had a duty to disclose this information, there is no evidence that [SJMC] had information to disclose at the time of Crystal’s procedure.” Then, given “the absence of sufficient evidence of fraud,” the court determined that the five-year statute of ²²³ limitations period had run on Crystal’s medical malpractice claims, having not been tolled by fraud, and dismissed those claims as time-barred.

II

Standard of Review Maryland Rule 2-501 provides that summary judgment shall be entered “in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In other words, the circuit court must first determine “whether there is a dispute as to a material fact sufficient to require the issue to be tried.” Frederick Rd., Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 93 , 756 A.2d 963 (2000). If there is no such dispute and if the nonmoving party has “failed to make a sufficient showing on an essential element” of its claim, for which it has the burden of proof, summary judgment is then appropriate in favor of the movant. Cent. Truck Ctr., Inc. v. Cent.

GMC, Inc., 194 Md.App. 375, 386 , 4 A.3d 515 (2010) (internal citation and quotation marks omitted) In assessing the propriety of a grant of summary judgment, we apply a de novo standard of review. River Walk Apartments LLC v. Twigg, 396 Md. 527, 541 , 914 A.2d 770 (2007). In conducting that assessment, we consider the facts and all reasonable inferences that may be drawn from those facts, in a light most favorable to the nonmoving party. Frederick Rd., Ltd. P’ship, 360 Md. at 93-94 , 756 A.2d 963 .

Our review is limited, however, solely to the grounds upon which the circuit court granted summary judgment. River Walk Apartments, 396 Md. at 541-42 , 914 A.2d 770 .

III

Fraud By Intentional Misrepresentation Crystal contends that the circuit court erred in granting summary judgment as to his claim of fraud by intentional ²²⁴ misrepresentation against Dr. Midei. Specifically, he maintains that there was a genuine issue of material fact as to whether Dr. Midei had deliberately misstated, or had done so with reckless indifference, the degree of stenosis in Crystal’s LAD, so as to induce Crystal to agree to the stent implantation procedure that was ultimately performed. In support of that claim, he suggests that there was “too great a discrepancy” between Dr. Midei’s and Dr. Fischer’s opinions about the percentage of stenosis in Crystal’s LAD for Dr. Midei’s statement, that there was a 70% stenosis, to have been anything but an intentional misrepresentation of the level of stenosis to induce Crystal to undergo the stent implantation procedure at issue. To prevail on a claim of fraud, a plaintiff must show, “by clear and convincing evidence,” the following elements, the second of which we have bolded as it is central to this appeal: 1.

That the defendant made a false representation to the plaintiff; 2. That its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth; 3. That the misrepresentation was made for the purpose of defrauding the plaintiff; 4. That the plaintiff relied on the misrepresentation and had the right to rely on it; and 5.

That the plaintiff suffered compensable injury resulting from the misrepresentation. E.g. VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 703-04 , 715 A.2d 188 (1998) (emphasis added). It is, as noted, the second element (or the “knowledge element”) of fraud that is at issue here.

Thus, the question before us is: Did Crystal present sufficient evidence to generate a genuine dispute of material fact as to whether Dr. Midei knew that the statement he made to Crystal was false or that Dr. Midei was “recklessly indifferent” with respect to the truthfulness of that statement. In addressing that question, ²²⁵ we are guided by the principle that “[njegligence or misjudgment, however gross, does not satisfy the knowledge element” of fraud. VF Corp., 350 Md. at 704 , 715 A.2d 188 (internal quotation marks and citation omitted). Crystal’s claim of fraud by intentional misrepresentation rests entirely on the competing diagnoses of Dr. Midei, Crystal’s treating cardiologist, and Dr. Fischer, Crystal’s “qualified expert.” In both the certificate of qualified expert and the report, accompanying that certificate, which were filed with Crystal’s claim, Dr. Fischer opined that Dr. Midei had breached the standard of care by placing a stent “without reasonable evidence that [it] was medically necessary.” In reaching that conclusion, Dr. Fischer reviewed Crystal’s medical file “regarding the catheterization and stent placement by Dr. Midei,” including the angiogram for that procedure.

He deponed that, in reviewing the angiogram, he did not “see anything that would even come close” to the percentage of stenosis Dr. Midei had recorded. According to Dr. Fischer, Crystal’s LAD had about a 30 to 40% stenosis, not the 70% indicated by Dr. Midei. “[Y]ou never treat coronary artery disease with stents,” Dr. Fischer declared, “unless there is severe stenosis.” But, at no time did he specify what level of stenosis constitutes “severe stenosis” or what a reasonable margin of error might be in reading an angiogram with the naked eye, the only available tool for making such an assessment at that time. A “plaintiff obviously does not establish” fraud by merely showing that “objectively false representations about the diagnosis and treatment” were made. Geisz v. Greater Balt.

Med. Ctr., 313 Md. 301, 330 , 545 A.2d 658 (1988). Fraud, as noted, does not “encompass liability for negligent or grossly negligent representations.” Ellerin v. Fairfax Sav., F.S.B., 337 Md. 216, 238-39 , 652 A.2d 1117 (1995). Similarly, the Court of Appeals has instructed that “the fraud exception” to the statute of limitations, upon which Crystal relies in support of his contention that the limitations on his medical malpractice claims had been tolled, “cannot be satisfied by evidence ²²⁶ which demonstrates no more than negligence.” Geisz, 313 Md. at 328 , 545 A.2d 658 .

Crystal has provided no evidence that Dr. Midei knew his assessment of stenosis, whether it be 70 or 80%,