D'ANGELO v. St. Agnes Healthcare, Inc.

SALMON, J. This case requires us to construe and apply section 3-2A-04(b) of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland (1973, 2002 RepLVol.). 1 Section 3-2A-04(b) reads, in pertinent part: (b) Filing and service of certificate of qualified expert.— Unless the sole issue in the claim is lack of informed consent: (l)(i) Except as provided in subparagraph (ii) of this paragraph, a claim filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant fails to file a certificate of a qualified expert with the Director attesting ⁶³⁴ to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, unthin 90 days from the date of the complaint. The claimant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in accordance with the Maryland Rules. (ii) In lieu of dismissing the claim, the panel chairman shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if: 1. The limitations period applicable to the claim has expired; and 2.

The failure to file the certificate was neither willful nor the result of gross negligence. (2) A claim filed after July 1, 1986, may be adjudicated in favor of the claimant on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within 120 days from the date the claimant served the certificate of a qualified expert set forth in paragraph (1) of this subsection on the defendant. If the defendant does not dispute liability, a certificate of a qualified expert is not required under this subsection. The defendant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in accordance with the Maryland Rules.

(3) The attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached. Discovery is available as to the basis of the certificate. (Emphasis added.) Maryland’s Health Care Malpractice Claims Statute (“the Statute”) requires “that a person with a medical malpractice claim[ 2 ] first file that claim with the Director of ⁶³⁵ Health Claims Arbitration Office (‘HCAO’).” § 3-2A-04(a). McCready Mem’l Hosp. v. Hauser, 330 Md. 497, 501 , 624 A.2d 1249 (1993).

In McCready, the Court of Appeals interpreted section 3-2A-04(b)(l)(i) as requiring that within ninety days of the filing of a medical malpractice claim “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 injury.” Id. (emphasis added). With exceptions not here relevant, the statute also requires that “the HCAO dismiss, without prejudice, any claim where the plaintiff fails to file an expert’s certificate within 90 days.” Id. In the case sub judice, the medical malpractice claimants filed suit in the HCAO, naming thirty-one defendants.

Their claims were accompanied by certificates from two qualified experts. The certificates, however, did not say that any of the thirty-one defendants either departed from the standard of care or that the departure from the standard of care by any of the defendants was the proximate cause of the injuries alleged. Moreover, the certification filed with the HCAO did not have attached a report from the expert, as required by section 3-2A-04(b)(3). After service, several of the defendants filed a certificate of their own qualified expert.

Thereafter, pursuant to section 3-2A-06B(c), those defendants waived arbitration. 3 The filing of that waiver had the effect of transferring plaintiffs’ claims against all defendants to the Circuit Court for Baltimore City. Thereafter, all defendants filed motions for summary judg ⁶³⁶ ment in which they alleged that the plaintiffs’ failure to comply with the requirements of section 3-2A-04(b) warranted a dismissal of the circuit court action. The Circuit Court for Baltimore City, after a hearing on the matter, dismissed all plaintiffs’ claims against all defendants, without prejudice. One question is presented for our review: Did the motions court err in granting appellees’ motion to dismiss on the basis that the appellants failed to comply with section 3-2A-04 of the Courts and Judicial Proceedings Article?

I. BACKGROUND FACTS The core of the problem that gives rise to this appeal concerns the contents of the two certificates filed by appellants’ experts. The captions to both certificates are identical and read as follows: MICHAEL D’ANGELO, Personal Representative of the Estate of VINCENT D’ANGELO Claimant vs. ST. AGNES HOSPITAL Health Care Providers Appellants’ statement of claims was accompanied by a certificate signed by Dr. Craig Bash, which read: I, Craig N. Bash, M.D., M.B.A. do hereby certify that I am a licensed doctor in the specialty of Neuroradiology. I do further hereby certify that less than twenty-percent (20%) of my professional activities are devoted to activities that directly involve testimony in personal injury claims.

I do further hereby certify that I have reviewed the medical records and films of Health Care Providers named in this claim, pertaining to the care and treatment rendered to Vincent D’Angelo from St. Agnes Hospital. ⁶³⁷ Based upon my training, expertise and review, I have concluded that the fore,going medical providers failed to comply with the standards of care and that such failure was the proximate cause of the injuries to Claimant, Vincent D’Angelo. (Emphasis added.) Dr. John C. Schaefer, who is Board certified as an internist and as a specialist in infectious disease, also filed a “Certificate of Qualified Expert.” His certifícate was identical to that filed by Dr. Bash, with one exception. The first sentence in Dr. Schaefer’s certificate replaced the first sentence found in Dr. Bash’s certifícate and read: “I, John C. Schaefer, M.D., do hereby certify that I am a licensed doctor in the specialty of Infectious Disease.” The defect common to both certificates is that the certifying doctors said that they had “concluded that the foregoing medical providers failed to comply with the standard of care and that such failure was the proximate cause of the injuries to Claimant, Vincent D’Angelo.” But there is nothing in the certificate to indicate the identity of the health care providers who the experts believed rendered substandard care. A related problem is that the certificates said that each expert had “reviewed the medical records and films of the Health Care Providers named in this claim,” even though it was later learned that when the certificates were executed the certifying experts did not know the identity of any of the health care providers who were going to be named by plaintiffs’ counsel in the HCAO suit.

Moreover, “St. Agnes Hospital,” which is mentioned in the caption of both certificates, is not named as a defendant in the statement of claims later filed by appellants. Instead, Sterling Professional Emergency Physicians, LLC; St. Agnes Healthcare, Inc.; and twenty-nine Maryland doctors were named. One of the plaintiffs in the suit filed with the HCAO is Michael D’Angelo, who brought a survivorship claim against the defendants in his capacity as Personal Representative of the Estate of Vincent S. D’Angelo. Additional plaintiffs were ⁶³⁸ various relatives of Vincent S. D’Angelo, who brought wrongful death actions against the thirty-one defendants.

The twenty-nine medical doctors sued by the plaintiffs were: Sambandam Baskaran, David B. Bullis, Phillip E. Byrd, Joseph Ciacci, Enzo Cosentino, David Elder, Elie K. Fraiji, Elizabeth A. Frankel, Theodore E. Harrison, Michelle A. Henggeler, Rus Horea, Radu S. Iancovici, Bijan Keramati, Chang W. Kang, U.D. King, Jr., Anthony Martinez, Antonio B. Martins, Sanford D. Minkin, Joseph Moran, Jose F. Morelos, Kartchik Muthasamy, Myung H. Nam, Pedro P. Purcell, Lyle T. Saylor, Kevin H. Scruggs, Henry M. Shuey, Jr., Sharon E. Silverman, Michael A. Silverman, and Donal K. Walshe.

II

ALLEGATIONS IN THE STATEMENT OF CLAIMS The claimants alleged that in November 1998 Vincent D’Angelo (hereafter “Mr. D’Angelo”) began suffering excruciating headaches. He was initially evaluated by his primary care physician, Chang W. Kang, M.D. Between January 13, 1999, and June 14, 1999, Mr. D’Angelo sought evaluation and treatment for his headaches (and related conditions) at St. Agnes Hospital, where he was treated by agents of St. Agnes Healthcare, Inc., and/or St. Agnes Community Care Center. CT scans were read as normal by various defendants, even though, according to the complaint, Mr. D’Angelo continued to experience clinical symptoms suggestive of an ongoing infectious process in his sinus cavity. On June 15, 1999, Mr. D’Angelo once again visited the emergency room of St. Agnes Hospital.

This time he was in a severely compromised mental state. A CT scan was performed the next day, which was interpreted as demonstrating findings consistent with a subdural empyema—an infectious mass that had penetrated the sinus cavity and invaded the brain. By June 16, 1999, Mr. D’Angelo was suffering from profound infection, which caused his brain to shift. Mr. D’Angelo underwent a craniotomy to evaluate the infection on June 16, 1999.

Between the date of the craniotomy and March 6, 2001, Mr. D’Angelo suffered excruciating head ⁶³⁹ aches, blindness, and other severely debilitating health problems. He died on March 6, 2001, at age forty-four. The allegations of negligence, as against the twenty-nine doctors, were general in nature, viz: 16. The [djefendants named in paragraph 15 above [the 29 doctors named as defendants] owed the duty to exercise the degree of care, skill and judgment expected of competent medical practitioners acting in the same or similar circumstances, which duty included performance of adequate and proper diagnostic procedures and tests to determine the nature and severity of [pjlaintiffs condition, careful diagnosis of such condition, employment of appropriate procedures, surgery and/or treatment to correct such conditions without injury upon the [pjlaintiffs [sic], continuous evaluation of [pjlaintiffs condition and the effects of such treatment, adjustment of the course of treatment in response to such ongoing surveillance and evaluation, and adherence to those policies and procedures governing the treatment of the [pjlaintiff and supervision of those physicians over whom said [djefendants were responsible. 17.

Those [djefendants identified in paragraph 15 were negligent in that they failed to employ appropriate treatment, surgery, tests and/or procedures, failed to carefully and thoroughly evaluate the [pjlaintiffs condition, failed to properly and appropriately diagnose the [pjlaintiffs condition, failed to thoroughly evaluate the effects and results of any tests and/or procedures performed, failed to properly evaluate the effects of chosen treatment, failed to adjust the [pjlaintiffs treatment in response to appropriate evaluation of the effects of treatment, failed to properly monitor the course of the [pjlaintiffs condition and treatment, failed to employ adequate and proper diagnostic procedures and/or tests to determine the nature and extent of the [pjlaintiffs condition, failed to follow those policies and procedures for the treatment of the [pjlaintiff and the supervision of resident doctors over whom they were responsible. ⁶⁴⁰ The allegations against St. Agnes Health Care, Inc., and Sterling Professional Emergency Physicians, LLC, were similar to those as against the twenty-nine doctors.

III

POST-FILING DEVELOPMENTS Defense counsel, on September 30, 2002, deposed Dr. Schaefer, the infectious disease expert who had signed one of the certificates filed with the HCAO. Dr. Schaefer said in his deposition that he signed the certificate on April 24, 2002, which was approximately six weeks before the statement of claims was filed with the HCAO. At the time he signed the certificate, he did not know the identity of the health care providers against whom the certificate was to be used. Dr. Schaefer conceded at deposition that he was neither retained nor qualified to express opinions relative to errors in the interpretation of Mr. D’Angelo’s CT scans.

He nevertheless testified that at the time he signed the certificate he intended that his certificate was to apply against the radiologist who read the June 14,1999, CT scan and no one else. As of April 24, 2002 (the date he signed the certificate), he had no opinion regarding the care rendered by health care providers who treated Mr. D’Angelo prior to or after June 14,1999. Dr. Schaefer based his opinion that the June 14 CT scan had been misread upon a report dated February 15, 2002, signed by Dr. Craig N. Bash. Although claimants had filed suit against Dr. Donal K. Walshe and Dr. Pedro P. Purcell, Dr. Schaefer praised the care rendered by Dr. Walshe and said that he had no criticism of Dr. Purcell’s performance.

Dr. Schaefer expressed no opinion in regard to the care by twenty other doctors who were named in the lawsuit, but he did express an adverse opinion as to several of the other defendants. Dr. Bash’s deposition was commenced on October 2, 2002. At the time of his deposition, Dr. Bash could not remember what records he had reviewed prior to February 15, 2002, which was the date he signed the certificate. Moreover, when ⁶⁴¹ he signed the certificate, he did not know who was going to be named in the statement of claims.

Like Dr. Schaefer, he did remember reviewing the decedent’s June 14 CT scan. In his opinion, that CT scan had been misread by one of the radiologists at St. Agnes. 4 Among the records Dr. Bash brought with him to the deposition was a report he had written to counsel for the plaintiffs. This report was dated February 15, 2002, like his certificate. The report read: At your request I have reviewed this patient’s CT scans and medical records.

I disagree with the two CT reports of 14 June 1999 which state “... no acute process identified ...” because the CT scan of 14 June 1999 documents the following additional acute pathologic processes: 1. Increased density in the right frontal sinus with air fluid level consistent with acute sinusitis. 2. Increased densities in the right ethmoid, maxillary and sphenoid sinuses consistent with either an acute or chronic pan-sinusitis. 3. Loss of normal sulci in right frontal lobe consistent with either isodense subdural collection (abscess given the association with sinusitis) or local gyral cerebral edema secondary to cerebritis.

Early infectious disease consultation and antibiotic treatment on 14 June 1999 was indicated because the patient had an abnormal head (miss-read on 14 June 1999) CT scan suggestive of intracranial abscess/cerebritis, increased white count of 14.9 per St. Agnes ER report, headache, and vomiting. Early treatment of intracranial infectious processes improves prognosis as supported by Mandell. . . . [ 5 ] ⁶⁴² An infectious disease specialist did not get involved until 16 June 1999 which in my opinion was an inappropriate delay. As to many of the doctors named in the lawsuit, Dr. Bash did not voice any opinion. As to others, he opined that they had deviated from the appropriate standard of care, by, for example, misreading the June 14,1999, CT scan.

Dr. Bash’s deposition was continued to a later date because some of the defense lawyers involved in the case had no opportunity to examine him. Subsequent to the deposition, Dr. Bash suffered a severe head injury and was unable to participate further in the case. For that reason, his deposition was never resumed. On October 7, 2000, which was five days after Dr. Bash’s deposition, Drs.

Bullís, Scruggs, Frankel, Henggeler, Harrison, Martins, Michael Silverman, and Sterling Professional Emergency Physicians, LLC, jointly filed a waiver of arbitration, pursuant to section 3-2A-06B(c). An order of transfer was issued by the director of the HCAO on November 1, 2002, and the entire case was transferred to the Circuit Court for Baltimore City. Thereafter, the plaintiffs filed a complaint in the circuit court, which was, in substance, identical to the one they had filed with the HCAO. Between April 29 and May 19, 2003, all defendants either filed individually, or joined in, motions to dismiss the case or, in the alternative, for summary judgment as to plaintiffs’ claims.

Some, but not all, defendants asserted, based on the depositions of Drs. Bash and Schaefer, that plaintiffs could not prove that they deviated from the appropriate standard of care. All defendants maintained that the certificate of Drs. Schaefer and Bash were deficient because the certifying physicians failed to state that any of them violated the standard of care in treating defendants.

In this regard, movants argued that the obvious purpose of the certificate requirement is to prevent frivolous malpractice claims from going forward. Though effectively a screening process, the filing of a certificate that complies with the statutory requirement has repeatedly ⁶⁴³ been deemed by Maryland’s courts to be an “indispensable step” in the process of litigating a medical malpractice claim. In opposition to the dismissal motions, counsel for the plaintiffs contended, inter alia, that a strict reading of section 3-2A-04(b)(l) suggests that the [certifying] expert is not required to identify each and every defendant and requires only that he certify (a) breach of the standard of care and causation, thus demonstrating negligence in the rendering of health care. Plaintiffs’ counsel also opposed the dismissal motions on the basis that the “case law interpreting the appropriateness of dismissal of a case filed under the [Health Claims Arbitration] Act for failure to arbitrate has focused on whether the claimant failed to make a good-faith effort at arbitration” and not on whether there had been technical compliance with the certificate requirement.

(Citing Manzano v. S. Md. Hosp. Inc., 347 Md. 17 , 698 A.2d 531 (1997), and Karl v. Davis, 100 Md.App. 42, 46 , 639 A.2d 214 (1994).) Plaintiffs maintained that they had at all times acted in good faith in filing the certificates and in prosecuting their claims. Plaintiffs further contended that the experts’ certificates clearly applied “to the claims against St. Agnes Hospital [which] is named in the caption and is, upon information and belief, vicariously liable for the alleged acts or omission of many of the [d]efendants named in the Complaint.” A hearing on the motions to dismiss and/or for summary judgment was held on May 30, 2003. Prior to the hearing, the plaintiffs dismissed, vrith prejudice, their claims against Drs.

Cosentino, Iancovici, Morelos, and Walshe. Plaintiffs also dismissed their suit, albeit without prejudice, against Drs. Ciacci and Shuey. Therefore, at the time of the hearing, twenty-five defendants remained.

Counsel for the plaintiffs argued at the hearing that the sole purpose of the