Debbas v. Nelson

BATTAGLIA, J. This case presents us with the task of determining whether a facially valid Certificate of Qualified Expert, a prerequisite to instituting a medical malpractice action, can be invalidated by subsequent developments, specifically the allegedly inconsistent deposition testimony of the certifying medical expert. We hold that the Health Care Malpractice Claims Act does not permit such collateral attacks based on events arising ³⁶⁷ after the Certificate has been filed. As such, Respondents’ Certificate of Qualified Expert was not substantially defective, and the Circuit Court erroneously granted Petitioner Dr. Elie Debbas’s motion to dismiss and Petitioner Fort Washington Hospital’s motion for summary judgment on that basis. We have also been asked to explore whether a genuine dispute of material fact exists regarding the vicarious liability of Petitioner Fort Washington Hospital.

We find that a genuine dispute of material fact remains concerning whether the defendant physicians were agents of the Hospital for the purposes of vicarious liability. Therefore, we conclude that the Circuit Court erroneously granted the Hospital’s motion for summary judgment. We shall affirm the decision of the Court of Special Appeals. Facts On May 10, 2000, Madeline V. Lyons went to the emergency room at Fort Washington Hospital complaining of weakness and fatigue.

Dr. Hengameh N. Mesbahi examined her, ordered various blood tests, and diagnosed Ms. Lyons with mild anemia. He wrote her a prescription for iron supplements and advised her to follow up with her primary care physician, Dr. Michael Sidarous. Two days later, Ms. Lyons visited Dr. Sidarous and presented symptoms similar to those about which she had complained during her emergency room examination. Dr. Sidarous diagnosed Ms. Lyons with mild congestive heart failure, prescribed medication, and informed her that she should return to the Hospital if her symptoms worsened.

In the early hours of May 16, 2000, Ms. Lyons awoke with acute burning abdominal pain and within several hours was admitted to the emergency room at the Hospital, where she was treated by Dr. Patrick W. Daly, Director of the Hospital’s Emergency Medical Department, Dr. Sidarous, and Dr. Elie G. Debbas, Chief of Surgery at the Hospital and the then President of the Medical Staff. She died later that evening. ³⁶⁸ On April 8, 2002, Ms. Lyons’s surviving five daughters (the “Respondents”) filed a Statement of Claim against Dr. Debbas, Dr. Sidarous, and the Hospital with the Health Claims Arbitration Office (“HCAO”), pursuant to the Maryland Health Care Malpractice Claims Act (“the Act”), Md.Code (1974, 1998 Repl.Vol., 2000 Supp.), §§ 3-2A-01 to 3-2A-09 of the Courts and Judicial Proceedings Article. Accompanying the Statement of Claim was a Certificate of Qualified Expert, executed by Dr. Ann M. Gordon, attesting to alleged deviations from the proper standard of care committed by Dr. Sidarous, Dr. Debbas, and the Hospital. Respondents also simultaneously filed an Election to Waive Arbitration pursuant to Maryland Code (2002 Repl.Vol.), § 3-2A-06B of the Courts and Judicial Proceedings Article. 1 On April 30, 2002, Respondents filed their complaint in the Circuit Court for Prince George’s County.

The defendant physicians and the Hospital deposed Dr. Gordon, the certifying physician, on November 8, 2002. The following discourse occurred among Dr. Gordon and counsel for Dr. Sidarous, Dr. Debbas, and the Hospital: [COUNSEL FOR DR. SIDAROUS]: Based on your review of the materials, have you formed opinions that you hold with reasonable medical probability as to whether any health care provider defendant deviated from standard of care in their care and treatment of Madeline Lyons? [DR. GORDON]: Yes, I do. [COUNSEL FOR DR.

SIDAROUS]: I think I had asked you who you hold such opinions with regard to. [DR. GORDON]: Dr. Sidarous. ³⁶⁹ [COUNSEL FOR DR. SIDAROUS]: Have you formed any opinions with regard to any other health care provider beyond him? [DR. GORDON]: No. [COUNSEL FOR DR.

DEBBAS]: Dr. Gordon, I’ll be very short. I represent Dr. Debbas, the surgeon in this case, and your counsel was kind enough to say at the outset of your deposition you don’t intend to render any opinions regarding my client, Dr. Debbas, is that correct? [DR. GORDON]: That’s correct. I believe that there will be other medical experts who will be addressing those opinions and issues. [COUNSEL FOR FORT WASHINGTON HOSPITAL]: Are you going to be rendering any opinions, Doctor, that Fort Washington Medical Center or its employees deviated from the standard of care? [DR.

GORDON]: I would probably defer that to the experts that the plaintiff attorneys have concerning the emergency room visit on 5/16 I believe. [COUNSEL FOR THE HOSPITAL]: On 5/16? [DR. GORDON]: Yes. [COUNSEL FOR THE HOSPITAL]: Okay. So you will not be rendering any opinions then. You’re going to defer to other experts? [DR.

GORDON]: That’s correct. The litigation proceeded on Respondents’ First Amended Complaint, which was filed on November 22, 2002. On June 8, 2008, Dr. Debbas filed a motion to dismiss based on his assertion that the above-quoted colloquy invalidated Respondents’ Certificate of Qualified Expert. On June 18, 2003, the Hospital filed a motion for summary judgment based upon the same argument posited by Dr. Debbas as well as the assertion that the record could not support a finding of negligence by ³⁷⁰ the Hospital. 2 Respondents filed an opposition to both motions and appended an affidavit by Dr. Gordon in which she reaffirmed the statements contained in her certification.

On August 29, 2003, the Circuit Court granted the motion to dismiss and the motion for summary judgment on the basis that Respondents had failed to establish a prima facie showing of apparent authority. Respondents filed motions to reconsider or amend the judgments, all of which were denied by the Circuit Court on October 2, 2003 and then filed their notice of appeal to the Court of Special Appeals on October 27, 2003. In a reported opinion, the Court of Special Appeals determined that Respondents’ Certificate of Qualified Expert satisfied the Act’s requirements and reversed the Circuit Court’s dismissal of the complaint against Dr. Debbas. Nelson v. Debbas, 160 Md.App. 194, 208 , 862 A.2d 1083, 1091 (2004).

Moreover, the appellate court held that the record supported a finding that there existed a dispute of material fact relating to the apparent authority of the physicians with respect to the Hospital and the potential vicarious liability of the Hospital. In part, the Court of Special Appeals relied upon the language in the medical consent form that Ms. Lyons was required to sign prior to her admission to the emergency room, which provided in pertinent part: MEDICAL CONSENT: I hereby voluntarily consent to such diagnostic procedures and hospital care and to such therapeutic treatment by the doctors of the medical staff of Fort Washington Hospital, which in their judgment becomes necessary while I am an Emergency Department patient or an inpatient in said hospital. ³⁷¹ The appellate court also relied on the facts that Dr. Debbas was the President of the Medical Staff and Chief of Surgery at the Hospital at the time of Ms. Lyons’s admission, and that Dr. Daly was the Director of Emergency Medicine. Based on these facts, the intermediate appellate court determined that the evidence of record was sufficient to create a genuine dispute of material fact regarding the issue of apparent authority and vicarious liability. Id. at 213 , 862 A.2d 1083 , 862 A.2d at 1094 .

On January 21 and 24, 2005, Dr. Debbas and the Hospital filed in this Court separate petitions for writs of certiorari. Dr. Debbas presented the following issue for our consideration: 1. Whether the Court of Special Appeals erred in reversing the trial court’s decision to dismiss plaintiff’s medical negligence suit on the grounds that an opinion given as part of a Certificate of a Certifying Expert that is subsequently disavowed during deposition testimony renders the Certificate invalid and therefore must be dismissed. The Hospital presented two issues for our review: 1.

Did the Court of Special Appeals err when it concluded that the Affidavit of Ann M. Gordon, M.D., was not substantially defective and complied with the Certificate of Qualified Expert requirements of the Maryland Health Care Malpractice Claims Act. 2. Did the Court of Special Appeals err when it concluded that there was sufficient evidence to create a dispute of material fact on the question of whether there was an agency relationship between the attending emergency room physicians, who administered care to Ms. Lyons, at the Hospital. On April 7, 2005, we granted the petitions and issued the writs. Debbas v. Nelson, 386 Md. 180 , 872 A.2d 46 (2005).

We hold that the Certificate of Qualified Expert filed by the Respondents was not defective due to events arising subsequent to its filing and that the Circuit Court erroneously granted Dr. Debbas’s motion to dismiss and the Hospital’s ³⁷² motion for summary judgment on that basis. Moreover, we hold that sufficient facts exist in the record to create a genuine dispute of material fact concerning whether the physicians and surgeons involved in this matter were agents of the Hospital, thus rendering summary judgment improper. Therefore, we affirm the judgment of the Court of Special Appeals. In reviewing the underlying grant of a motion to dismiss, we must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.

Reichs Ford Road Joint Venture v. State Roads Commission of the State Highway Administration, 388 Md. 500, 509 , 880 A.2d 307, 312 (2005); Adamson v. Correctional Medical Services, 359 Md. 238, 246 , 753 A.2d 501, 505 (2000); Allied Inv. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957, 961 (1999); Stone v. Chicago Title Ins. Co. of Maryland, 330 Md. 329, 333 , 624 A.2d 496, 498 (1993). In the end, “[dismissal is proper only if the complaint would fail to provide the plaintiff with a judicial remedy.” Reichs Ford Road Joint Venture, 388 Md. at 509 , 880 A.2d at 312 , citing Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371, 1373 (1997).

See also Allied Inv. Corp., 354 Md. at 555 , 731 A.2d at 961 . In sum, because we must deem the facts to be true, our task is confined to determining whether the trial court was legally correct in its decision to dismiss. See Allied Inv.

Corp., 354 Md. at 555 , 731 A.2d at 961 ; Bobo, 346 Md. at 709 , 697 A.2d at 1373 . With respect to the Hospital’s motion for summary judgment, we must determine, initially, whether a dispute of material fact exists. Md. Rule 2 — 501(f) (2002); Serio v. Baltimore County, 384 Md. 373, 388 , 863 A.2d 952, 961 (2004); O’Connor v. Baltimore County, 382 Md. 102, 110 , 854 A.2d 1191, 1196 (2004); Todd v. MTA, 373 Md. 149, 154-55 , 816 A.2d 930, 933 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359 , 800 A.2d 707, 721 (2002); Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443 , 795 A.2d 715, 720 (2002); see Fister v. Allstate Life Ins.

Co., 366 Md. 201, 209 , 783 A.2d 194, 199 (2001); Lippert v. Jung, 366 Md. 221, 227 , ³⁷³ 783 A.2d 206, 209 (2001). “ ‘A material fact is a fact the resolution of which will somehow affect the outcome of the case.’” Todd, 373 Md. at 155 , 816 A.2d at 933 , quoting Matthews v. Howell, 359 Md. 152, 161 , 753 A.2d 69, 73 (2000). The facts properly before the court as well as any reasonable inferences that may be drawn from them must be construed in the light most favorable to the non-moving party. Serio, 384 Md. at 388 , 863 A.2d at 961 ; O’Connor, 382 Md. at 111 , 854 A.2d at 1196 ; Todd, 373 Md. at 155 , 816 A.2d at 933 ; Okwa v. Harper, 360 Md. 161, 178 , 757 A.2d 118, 127 (2000). If the record reveals that a material fact is in dispute, summary judgment is not appropriate.

Serio, 384 Md. at 388 , 863 A.2d at 961 ; O’Connor, 382 Md. at 111 , 854 A.2d at 1196 ; Todd, 373 Md. at 155 , 816 A.2d at 933 ; Okwa, 360 Md. at 178 , 757 A.2d at 127 . If no material facts are disputed, however, then we must determine whether the circuit court correctly granted summary judgment as a matter of law. See Md. Rule 2-501(f); Serio, 384 Md. at 388 , 863 A.2d at 961 ; O’Connor, 382 Md. at 111 , 854 A.2d at 1197 ; Todd; 373 Md. at 155 , 816 A.2d at 933 ; Beyer, 369 Md. at 360 , 800 A.2d at 721 ; Schmerling, 368 Md. at 443 , 795 A.2d at 720 . Discussion Dr. Debbas and the Hospital argue that when Dr. Gordon, in her deposition, did not offer opinions with respect to alleged deviations from the standard of care committed by Dr. Debbas and the staff of the Hospital, she rescinded the opinions that she had expressed in the Certificate of Qualified Expert filed by Respondents, thereby rendering the Certificate invalid.

According to Dr. Debbas and the Hospital, the Court of Special Appeals’s holding that the Certificate was still effective significantly diminishes the Certificate’s role in preventing specious claims from consuming limited judicial resources. Moreover, Dr. Debbas and the Hospital contend that the Court of Special Appeals erred in finding that a deficient Certificate may be remedied with an affidavit from the certifying expert after the statutory deadline for filing a Certificate has lapsed. They note that the Maryland Health Care Mai- ³⁷⁴ practice Claims Act does not permit such a remedy and thus, it is improper. The Hospital also argues that the Court of Special Appeals erred in ruling that there was a dispute of material fact with respect to Respondents’ allegations of apparent agency.

Specifically, the Hospital contends that the record lacks any evidence concerning Respondents’ claim that the Hospital represented that the physicians were its agents and that Ms. Lyons relied on those representations. It asserts that Respondents failed to establish a prima facie case of agency and therefore their theory of liability must fail. Conversely, Respondents contend that the holding of the Court of Special Appeals is consistent with the legislative intent of the Maryland Health Care Malpractice Claims Act because the Certificate of Qualified Expert was valid at the time it was filed and at all subsequent times. Moreover, Respondents assert that the affidavit submitted by Dr. Gordon after the deposition was properly considered by the Court of Special Appeals because Dr. Gordon never explicitly recanted her certifying opinion.

Respondents also argue that the Court of Special Appeals was correct in determining that there was sufficient evidence to present a genuine dispute of material fact on the issue of the potential vicarious liability of the Hospital including the language of the consent form signed by Ms. Lyons and Dr. Debbas’s title as President of the Medical Staff and Chief of Surgeiy at the Hospital. Furthermore, according to Respondents, the dismissal of Dr. Daly, on grounds unrelated to the question of his negligence, does not preclude Respondents from relying on the theory of apparent agency in holding the Hospital liable under a theory of respondeat superior. Even if the dismissal of Dr. Daly could preclude a claim against the Hospital based upon his negligence, Respondents assert that the Hospital could still be found to be vicariously liable due to Dr. Debbas’s deviation from the applicable standard of care and the theory of Dr. Debbas’s apparent agency. ³⁷⁵ The History of the Health Claims Arbitration Act In the 1970’s, medical malpractice insurers faced “a dramatic increase in the number of malpractice suits being filed and an alarming rise in the dollar amounts of malpractice verdicts.” James Kevin MacAlister and Allred L. Scanlan, Jr., Health Claims Arbitration in Maryland: The Experiment has Failed.14 U. Balt. L.Rev. 481, 488 (1985).

The proliferation of litigation was the result of several complex social factors, including the “erosion of the traditional doctor-patient bond,” the increasing use of specialists for care as opposed to general practitioners, and the increasing litigious nature of society. Id. Medical malpractice insurers initially responded to the dramatic rise in litigation by raising premium rates for physicians. When rate increases were no longer sufficient to offset the increased costs associated with defending malpractice suits, carriers began to cease underwriting medical malpractice insurance in Maryland.

See St. Paul Fire & Marine Ins. Co. v. Insurance Commissioner, 275 Md. 130 , 339 A.2d 291 (1975). In 1975, St. Paul Fire & Marine Insurance Company (“St. Paul”), then Maryland’s largest malpractice insurance carrier, informed the State Insurance Commissioner that it intended to withdraw from the medical malpractice insurance market because it no longer considered it profitable. St. Paul Fire & Marine Ins.

Co. v. Insurance Commissioner, 275 Md. 130, 134 , 339 A.2d 291, 294 (1975). The State Insurance Commissioner issued an order proscribing St. Paul’s withdrawal and requiring it to continue to provide insurance coverage. Id. at 135 , 339 A.2d at 294 . The Baltimore City Court affirmed the Insurance Commissioner’s order.

Id. This Court reversed, stating that the Insurance Commissioner could not require St. Paul to provide medical malpractice insurance, id. at 144 , 339 A.2d at 299 , and issued an immediate order. Id. at 132 , 339 A.2d at 292 . The General Assembly responded by forming a committee to study the methods of reforming the legal process of pursu ³⁷⁶ ing claims of medical malpractice.

The Medical Malpractice Insurance Study Committee was appointed on July 28, 1975, and on January 6, 1976, issued its report. Report of the Medical Malpractice Insurance Study Committee (January, 1976). The Committee proposed the adoption of a mandatory medical malpractice arbitration system, which, it asserted, would improve traditional tort litigation by discouraging the pursuit of non-meritorious claims because, through the arbitration process, weaknesses in such a case would be revealed. Id. at 3-8.

Moreover, the Committee opined that mandatory arbitration would provide a means for “obtaining expert opinion on the question of negligence,” which would lead to more reliable decisions as well as reasonable and predictable awards. Id. at 4 & 8. The Committee appended proposed legislation to the report, which was enacted by the General Assembly without substantive change as 1976 Md. Laws, Chap. 235 and codified as Maryland Code (1974, 1977 Supp.), §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article. Mandatory arbitration became the rule; its process was described by Judge Robert L. Karwacki, writing for this Court, as follows: All malpractice claims against health care providers seeking damages of more than $5,000 are subject to the provisions of the Act, and must be initially filed, as must the responses to them, with the Health Claims Arbitration Office, created by the statute “as a unit in the Executive Department.” The office, acting through its director, refers all issues raised to a three-member arbitration panel, chosen at random from lists of qualified persons prepared and maintained by the director; the panel for each claim is to be composed of an attorney, a health care provider, and a member of the general public.

The arbitration panel determines whether the health care provider is liable to the claimant and if so the extent of the damages, and incorporates in its award an assessment of costs, including arbitrators’ fees; if no party rejects the award, it becomes final and binding, is filed by the director with the appropriate circuit court, and when ³⁷⁷ confirmed by that court constitutes a final judgment. Neither party, however, is in any way bound to accept the award; it may be rejected for any reason within ninety days. If a party desires to contest the decision of the panel, he must file an action in the appropriate court during the ninety-day period to nullify the award, and jury trial may be elected by either party. Any contention that an award should be vacated on the grounds of corruption, fraud, partiality or the like is to be decided by the court prior to trial.

Unless the award is thus vacated, it is admissible as evidence at the trial and presumed to be correct, with the burden of proving the contrary falling on the party rejecting it; should the award be vacated, “trial of the case shall proceed as if there had been no award.” In addition, attorneys’ fees are subjected to the approval respectively of the arbitration panel and the court. Carrion v. Linzey, 342 Md. 266, 276-77 , 675 A.2d 527, 531-32 (1996), quoting Attorney General v. Johnson, 282 Md. 274, 279-80 , 385 A.2d 57, 60-61 (1978). The imposition of arbitration as a condition precedent to