Davis v. Frostburg Facility Operations, LLC

Barbera, C.J., Greene Adkins McDonald Watts Hotten Getty, JJ. Adkins, J. We must decide, once again, whether claims for negligence and related claims have alleged a "medical injury" within the meaning of the Health Care Malpractice Claims Act ("Health Claims Act" or "HCA"). Md. Code (1974, 2013 Repl. Vol.), §§ 3-2A-01, et seq. of the Courts and Judicial Proceedings Article ("CJP").

Petitioners Shelia Davis and her husband Robert Davis, sued Frostburg Facility Operations, LLC ("Frostburg") for injuries Ms. Davis allegedly sustained while staying at one of Frostburg's facilities. If the plaintiffs alleged a medical injury within coverage of the Health Claims Act, they were required to file those claims in the Health Care Alternative Dispute Resolution Office ("ADR Office") as a condition precedent to their action in the Circuit Court for Allegany County. If not, the plaintiffs were free to file their claim as a non-medical negligence suit in the Circuit Court. We issued a writ of certiorari to consider two questions, which we have rephrased for clarity: 1 1.

Did the trial court err in dismissing Petitioners' claims for failure to first file in the ADR Office? 2. Did the trial court properly dismiss the remainder of the Complaint? We hold that two of Davis's counts alleged medical injuries within the HCA, and the trial court properly dismissed those counts. The remaining negligence count did not allege a breach of a professional standard of care, and should survive.

The counts sounding in Contract, Consumer Protection, and Loss of Consortium also survive dismissal. I. BACKGROUND Petitioners, Shelia Davis and her husband Robert Davis, filed a Complaint against Frostburg Facility Operations, LLC ("Frostburg") in the Circuit Court for Allegany County. Davis complained of injuries suffered during her stay at Frostburg's nursing care facility while recovering from back surgery. Her alleged injuries followed two separate accidents at Frostburg.

First, while she slept, she fell from her bed-allegedly as a result of Frostburg's failure to properly secure her mattress to the bed frame. Davis waited on the floor approximately 45 minutes for a nurse to assist her. When she finally arrived, the nurse retrieved a mechanical lift and used that to raise Davis off the floor, intending to return her smoothly to the bed. But, in another mishap-while Davis was suspended, but not yet over her bed-the lift released and dropped her again onto the hard surface of the floor.

These events occurred on October 26, 2011. Davis 2 filed her Complaint on October 23, 2014-just three days before Maryland's general statute of limitations would have barred her claim. CJP § 5-101. 3 Frostburg responded with a Motion to Dismiss. Frostburg argued that Davis's claims failed as a matter of law because she did not file her claims in the ADR Office pursuant to CJP § 3-2A-04(a)(1)(i).

Frostburg also moved to dismiss Davis's claims for breach of contract and violation of the Maryland Consumer Protection Act ("CPA") for failure to state a claim for which relief can be granted. Before the trial court could rule on Frostburg's motion, Davis filed an Amended Complaint pursuant to Maryland Rule 2-341. Frostburg renewed its Motion to Dismiss, contending that Davis failed to remedy the deficiencies in her Complaint. Before the trial court ruled on Frostburg's motion, Davis filed a Second Amended Complaint-the subject of this appeal.

Davis amended her factual allegations to emphasize the non-medical nature of her claims. Specifically, she alleged that the Frostburg facility also served as a "residence" during her stay there. She averred that she was not receiving medical services when her mattress came loose, causing her first fall to the floor, or when she was dropped by the nurse in an effort to return Davis to the bed. Regarding the first fall, Davis alleged that she was "simply lying in bed." As to the second fall, Davis similarly alleged that her injuries resulted after the nurse "simply attempt[ed] to return [her] to her bed." Her Complaint included six Counts entitled: (1) Negligence; (2) Negligence; (3) Negligence Respondeat Superior ; (4) Breach of Contract; (5) "False Advertising/Consumer Protection;" and (6) Loss of Consortium.

Count One related solely to Davis's initial fall from her bed as she slept. She alleged that Frostburg owed her "the duty to exercise reasonable care in providing a bed to her that was safe for ordinary use." Frostburg breached this duty by "negligently and recklessly failing to properly attach Ms. Davis's mattress to the bed frame ...." Count Two related solely to her fall from the mechanical lift as the nurse attempted to return her to the bed. Davis alleged that Frostburg owed her "the duty to exercise reasonable care in providing mechanical lifts ... that were safe for ordinary use," but breached this duty by "negligently and recklessly providing a mechanical lift that malfunctioned ...." Count Three, for Negligence Respondeat Superior , also related only to Davis's fall from the mechanical lift. Davis alleged that Frostburg had a duty "to exercise reasonable care in returning her to her bed." The nurse, a Frostburg employee acting in the scope of employment, "negligently and recklessly released Ms. Davis from the mechanical lift ...." Davis also alleged-in Counts One, Two, and Three-that her injuries did not result from Frostburg's rendering or failure to render health care.

Arguing that Davis's claims sounded in medical malpractice, Frostburg moved to dismiss the Second Amended Complaint because Davis failed to satisfy the "condition precedent" of filing her claims in the ADR Office according to CJP § 3-2A-04(a)(1)(i). After the trial judge granted Frostburg's Motion to Dismiss, Davis timely appealed. In an unreported opinion, the Court of Special Appeals affirmed the trial court's decision to dismiss the entire complaint. Davis v. Frostburg Facility Operations, LLC , No. 540, 2017 WL 383454 (Md. Ct. Spec.

App. Jan. 27, 2017). The intermediate appellate court affirmed dismissal of Davis's negligence claims and concluded that they alleged a "medical injury" within the HCA. Id. at ⁵-6. The Court also affirmed dismissal of Davis's remaining claims because they were too closely related to claims subject to the HCA.

Id. at ⁶-7.

II

DISCUSSION Davis makes two arguments before this Court. First, she argues that the Complaint did not set forth claims of medical negligence and, therefore, the trial court improperly dismissed her Complaint for failure to first file in the ADR Office. Second, Davis contends that the trial court also improperly dismissed the remaining counts of her Complaint for a failure to state a claim upon which relief can be granted. The standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct.

RRC Ne., LLC v. BAA Maryland, Inc. , 413 Md. 638 , 643-44, 994 A.2d 430 (2010). In reviewing the ruling on the motion to dismiss, "we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party." Converge Servs. Grp., LLC v. Curran , 383 Md. 462 , 475, 860 A.2d 871 (2004). When examining the pertinent facts, the Court limits its analysis to the "four corners of the complaint ...." State Ctr., LLC v. Lexington Charles Ltd. P'ship , 438 Md. 451 , 497, 92 A.3d 400 (2014) (cleaned up) . 4 The pleader must set forth a cause of action with sufficient specificity-" 'bald assertions and conclusory statements by the pleader will not suffice.' " Id.

(quoting RRC Ne. , 413 Md. at 644 , 994 A.2d 430 ). Frostburg contends that Davis has alleged a breach of a professional standard of care and should have first filed her claims in the ADR Office as required by CJP § 3-2A-04(a)(1)(i). The General Assembly enacted this statute as one part of the Health Claims Act. An analysis of the HCA and the General Assembly's objective in enacting the legislation provides a helpful guidepost as we navigate whether the trial court properly dismissed Davis's claims.

The General Assembly adopted the Health Claims Act as a process for weeding out meritless claims and resolving disputes involving medical care. In the mid-1970s, Maryland's medical care providers faced a malpractice insurance shortage. See, e.g. , St.Paul Fire & Marine Ins. Co. v. Ins.

Comm'r , 275 Md. 130 , 132-33, 339 A.2d 291 (1975). The General Assembly enacted the HCA to encourage insurance carriers to provide coverage for Maryland physicians. See Attorney General v. Johnson , 282 Md. 274 , 280-81, 385 A.2d 57 (1978) overruled on other grounds by Newell v. Richards , 323 Md. 717 , 734, 594 A.2d 1152 (1991). The legislation created a claim arbitration system requiring all plaintiffs alleging a medical injury to submit an expert certification of the claim before the case could go forward.

See id. at 277, 279-80, 385 A.2d 57 . The HCA's purpose "is to screen malpractice claims, ferret out meritless ones, and, in theory, thereby lower the cost of malpractice insurance and the overall costs of health care." Adler v. Hyman , 334 Md. 568 , 575, 640 A.2d 1100 (1994). The HCA sets out several requirements for a malpractice plaintiff. A plaintiff claiming a "medical injury" committed by a "health care provider" and more than $30,000 in damages must first file their claims with the ADR Office.

CJP § 3-2A-02(a)(1). The HCA defines "medical injury" as an "injury arising or resulting from the rendering or failure to render health care." Id. § 3-2A-01(g). A "health care provider" means: a hospital, a related institution as defined in § 19-301 5 of the Health-General Article, a medical day care center, a hospice care program, an assisted living program, a freestanding ambulatory care facility as defined in § 19-3B-01 6 of the Health-General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker-clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland. Id. § 3-2A-01(f)(1) (footnotes added).

Once filed in the ADR Office, the claim is subject to non-binding arbitration. Id. § 3-2A-04. We characterize this arbitration as non-binding because the plaintiff, or any other party, may unilaterally waive the arbitration requirement after meeting certain conditions outlined in the statute. Id. § 3-2A-06B.

A plaintiff must also file, within 90 days of initially submitting a claim, an expert certification of the claim before unilateral waiver is permitted. Id. § 3-2A-04(b)(1)(i). The claims certification must include a report prepared by the same expert. This requirement reflects the General Assembly's desire to root out "nonmeritorious medical malpractice claims." D'Angelo v. St. Agnes Healthcare Inc. , 157 Md. App. 631 , 645, 853 A.2d 813 (2004).

The expert certification requirement can also assist the parties in evaluating the merits of health claims and defenses. Walzer v. Osborne , 395 Md. 563 , 583-84, 911 A.2d 427 (2006). Once the expert certification is filed, either party can make a speedy exit from the ADR process. CJP § 3-2A-06B(b)(1).

Indeed, most claimants elect to proceed to circuit court after satisfying compliance with the expert certification and report requirement. 7 See A. Thomas Pedroni & Ruth F. Vadi, Mandatory Arbitration or Mediation of Health Care Liability Claims? , 39 Md. B. J. 54, 56 (Mar./Apr. 2006) ("The vast majority of current medical malpractice cases go directly to circuit court in this system."). Despite this unilateral waiver provision, the General Assembly, in passing the HCA, sought to maximize the number of claims submitted to binding arbitration. Id. (citing Carrion v. Linzey , 342 Md. 266 , 287, 675 A.2d 527 (1996) ).

We first considered the scope of the HCA, and whether a claim must be submitted to arbitration in Cannon v. McKen , 296 Md. 27 , 459 A.2d 196 (1983). 8 Cannon suffered severe injuries while at her dentist's office. Dr. McKen owned the building that housed his dental practice. As Cannon sat in an examination chair, a large piece of x-ray equipment fell off the wall upon which it was mounted and struck her in the head and face. Cannon filed several claims against Dr. McKen.

Id. at 29 , 459 A.2d 196 . Specifically, Cannon alleged: Defendant McKen had contracted for the design and construction of structural improvements to his residence to be used as a dental office. This office included a dental chair and/or x-ray equipment wall attachment, which equipment was used by plaintiff Gloria Cannon on or about October 28, 1978 in her capacity as a dental patient of defendant McKen. Id.

Regarding the standard of care, Cannon asserted that Dr. McKen "owed a duty to exercise reasonable care in offering equipment in his dental office for safe and secure use by his patients." Id. Dr. McKen breached this duty of care in that: [T]he condition of the dental chair and/or x-ray equipment wall attachment was not safe for use by plaintiff Gloria Cannon, on or about October 28, 1978. While the plaintiff was sitting in this dental chair, a part of the chair and/or x-ray wall attachment broke loose and fell on her, striking her on the face and head. Plaintiff also relies on the doctrine of res ipsa loquitur .

Id. We found ambiguity in CJP § 3-2A-01(f)'s definition of "medical injury" and proceeded to set out the necessary characteristics of a medical claim covered by the HCA. Id. at 32, 459 A.2d 196 . The trial judge defined "medical injury" in the context of health care: I have defined health care as meaning once you establish the relationship of patient and health care provider; once you establish that relationship, in my judgment, does it make any difference how there is a breach.

They could slip on a floor or trip over the chair, or it may be inadequate lighting, or they can drop you from the operating table or do a lot of things. Once you establish that relationship in my judgment it has to be arbitrated. Id. at 37 , 459 A.2d 196 . We rejected this interpretation of the statute as overly broad, and instead held that the HCA only covers those claims that "arise or result from the breach of a professional's duty to exercise the appropriate care required of a health care provider in a professional capacity." Id.

We remanded Cannon's claims for further pleading in the trial court. The pleadings were "too sparse to allow a determination whether Mrs. Cannon's injury arose because of the defendant's breach of his professional duty owed her or because of a breach of duty which he may have owed her as a premises owner or in some other non-professional capacity." Id. at 37-38 , 459 A.2d 196 . Likewise, Dr. McKen had not succeeded in showing that the plaintiff had alleged a breach of a professional duty. We relied upon the long-held rule that, where a cause of action depends on satisfaction of a condition precedent, the plaintiff "must allege performance of such condition or show legal justification for nonperformance." Id. at 38 , 459 A.2d 196 (citing Engle v. Mayor & City Council of Cumberland , 180 Md. 465 , 25 A.2d 446 (1942) ).

We again examined the scope of the HCA in Nichols v. Wilson , 296 Md. 154 , 460 A.2d 57 (1983). Nichols involved claims that greatly differed from the plaintiff's claims in Cannon . Nichols sued Dr. Wilson for injuries suffered by her daughter. The younger Nichols went to Dr. Wilson for a suture removal procedure.

Alleging that Dr. Wilson slapped her daughter across the face with an open palm, Nichols filed a three-count complaint for assault and battery, negligence, and intentional infliction of emotional distress. Id. at 155 n.2, 460 A.2d 57 . We reiterated our understanding of the coverage of the HCA: "[I]t is only those claims for damages where there has been a violation of the health care provider's professional duty to exercise care which are within the [Health Claims] Act." Id. at 161 . The Legislature did not intend for the HCA to cover the intentional torts of assault and battery or intentional infliction of emotional distress, even if such actions occurred while a physician rendered health care. 9 Id.

The Court took a more expansive view of the HCA's jurisdiction in Jewell v. Malamet , 322 Md. 262 , 587 A.2d 474 (1991), involving allegations of assault during a medical exam. There the plaintiff alleged that she suffered injuries from intentional torts committed by a physician who sexually battered and assaulted her during a medical examination. Id. at 267-69 , 587 A.2d 474 . The plaintiff did not file her claim in the ADR Office, but instead proceeded directly to the trial court.

The defendant physician contended that the allegedly injurious conduct was part of a legitimate medical examination and the dispute required further investigation of the professional standard of care. Id. at 275 , 587 A.2d 474 . Determining whether a claim falls under the HCA depends on "the factual context in which the tort was allegedly committed . " Id. at 271-72 , 587 A.2d 474 (emphasis added).

Ultimately, we ruled for the physician, dismissing the complaint-because we could not conclude "that the claims set out were not for medical injury ...." Id. at 274-75 , 587 A.2d 474 . The plaintiff fared no better in Goicochea v. Langworthy , 345 Md. 719 , 694 A.2d 474 (1997), another physician case. Following a hernia examination conducted by Dr. Goicochea, Langworthy complained of persistent pain and discomfort in his groin area. Id. at 722 , 694 A.2d 474 .

He sued Dr. Goicochea for assault and battery. The trial court dismissed the complaint after clarifying that the plaintiff's factual allegations failed to demonstrate that the plaintiff's claims arose from conduct during the provision of medical care and fell beyond the HCA. Id. at 723 , 694 A.2d 474 . We reiterated that the proper initial forum for a claim "depends upon the factual context in which the tort was allegedly committed." Id. at 728 , 694 A.2d 474 .

If a claimant's injury "resulted from conduct completely lacking in medical validity in relation to the medical care rendered, the [HCA] is inapplicable, and the action may proceed without first resorting to arbitration." Id. We affirmed dismissal because the plaintiff had failed to plead any factual basis upon which the trial court could properly conclude that the physician's actions had "no conceivable medical validity." Id. at 729 , 694 A.2d 474 . Injury in a hospital setting does not always dictate that a claim will be covered by the HCA. In Afamefune v. Suburban Hosp., Inc. , 385 Md. 677 , 679-80, 870 A.2d 592 (2005), we examined whether filing in the ADR Office was mandated when a psychiatric patient claimed negligence against a hospital after she suffered an assault, rape, or attempted rape by another patient at the hospital.

We concluded it was not-because the plaintiff's claims did not allege either a breach of a professional standard of care or that her injuries occurred during the rendering of medical care. Id . at 694, 870 A.2d 592 . We also rejected the hospital's overbroad argument that the HCA should apply simply because the plaintiff was under the care of a medical provider when she was injured. We reaffirmed our earlier cases holding that-for the HCA to apply-the cause of an injury must have been " 'a breach by the defendant in his, her or its professional capacity, of the duty to exercise ... professional expertise or skill' in rendering or failing to render medical care." Id. at 695 , 870 A.2d 592 (quoting Cannon , 296 Md. at 36 , 459 A.2d 196 ) (cleaned up).

A plaintiff suing a hospital also successfully bypassed the Health Claims Office in Swam v. Upper Chesapeake Med. Ctr., Inc. , 397 Md. 528 , 919 A.2d 33 (2007). This hospital visitor alleged that she was stuck by a hypodermic needle when she placed her hand on a counter in a waiting room adjacent to an operating room, while waiting for her parent who was in surgery. Id. at 531-32 , 919 A.2d 33 .

Although the Swam opinion primarily examined whether filing in the ADR Office tolled Maryland's three-year statute of limitations on civil actions generally, we also considered whether the plaintiff