Dunham v. Univ. of Md. Medical Ctr.

Panel: Eyler, Deborah S., Graeff, Nazarian, JJ. * Graeff, J. ^{755 633} This consolidated appeal arises from a medical malpractice action filed by appellants, Stanley and Renee Dunham, against the University of Maryland Medical Center, LLC ("UMMC"), Maryland General Hospital, Inc., d/b/a University of Maryland Medical Center Midtown Campus ("Midtown"), and the University of Maryland Medical System Corporation ("UMMS") (collectively, appellees). The Dunhams allege that appellees breached the standard of care in failing to implement procedures to prevent pressure ulcers from developing and/or progressing and failing to treat the pressure ulcers once they developed. The claim initially was filed in the Health Care Alternative Dispute Resolution Office ("HCADRO") and transferred to the Circuit Court for Baltimore City, which granted appellees' motion to strike the certificate of qualified expert and motion to dismiss, without prejudice (" Dunham I "). Mr. and Mrs. Dunham appealed the dismissal of Dunham I. The Dunhams then filed in the HCADRO, using the same claim number as the initial claim, a motion for extension of time for filing a certificate of qualified expert.

The HCADRO ⁶³⁴ granted an extension, the Dunhams filed a second certificate, and the claim was transferred to the circuit court, which again dismissed the claim (" Dunham II "). On appeal from the rulings in Dunham I and Dunham II , Mr. and Mrs. Dunham present the following questions for this Court's review, which we have rephrased slightly, as follows: 1. Did the circuit court err in dismissing Dunham I for failure to identify individual health care providers in the certificate of qualified expert, even though the only defendants were the named institutional health care providers? 2. Did the circuit court err in Dunham I in failing to grant the Dunhams an extension to file a proper certificate of qualified expert pursuant to Md. Code (2013 Repl.

Vol.) § 3-2A-04(b)(1)(ii) of the Courts and Judicial Proceedings Article ("CJP"), in lieu of dismissing the case? 3. Did the circuit court err in dismissing Dunham II on the basis of res judicata when no final judgment had been entered in Dunham I ? For the reasons set forth below, we shall vacate the judgment of the circuit court in Dunham I and dismiss as moot the appeal in Dunham II. FACTUAL AND PROCEDURAL BACKGROUND Medical Care This is a medical malpractice action relating to the care of Mr. Dunham from October 28, 2013, through February 6, 2014.

Because the issues on appeal are procedural in nature and do not involve the merits of the underlying dispute, we provide only a brief synopsis of Mr. Dunham's medical history, as set forth in the pleadings. On October 28, 2013, Mr. Dunham was admitted to UMMC for a medical procedure to replace his aortic heart valve. Upon his admission, he was "assessed using the Braden Scale for predicting pressure ulcer risk and was given a score of less ⁶³⁵ than 15," which indicated that Mr. Dunham was "at a high risk for developing pressure ulcers." Following the completion of his medical procedure, Mr. Dunham's medical care was complicated by hypotension, and he later required treatment for ESBL Klebsiella pneumonia, which ultimately resulted ⁷⁵⁶ in a tracheostomy. 1 Mr. Dunham was in the intensive care unit at UMMC until November 15, 2013. On November 2, 2013, during his stay at UMMC, Mr. Dunham began developing bilateral pressure ulcers on his buttocks.

By November 5, the ulcers had worsened, resulting in skin tears and peeling, and by November 11, Mr. Dunham had "full thickness skin necrosis." On November 15, 2013, Mr. Dunham was transferred to Midtown for further care to address the pressure ulcers. On February 6, 2014, after receiving additional treatment for the pressure ulcers, he was discharged with instructions to receive intravenous antibiotics and continue at-home wound care. Procedural History Dunham I On October 14, 2016, Mr. and Mrs. Dunham filed a statement of claim with the HCADRO "alleging medical negligence on the part of [UMMC], Midtown, and UMMS" relating to the development and progression of pressure ulcers. On November 16, 2016, Mr. and Mrs. Dunham filed a certificate of qualified expert and report ("certificate") and then waived arbitration. 2 ⁶³⁶ The certificate, completed by Antonios P. Gasparis, M.D., stated, in pertinent part: Based upon my review of this matter, and upon my knowledge, training, and experience in the field of vascular surgery and wound care, and as set forth more fully in the attached Report, it is my opinion to a reasonable degree of medical probability that Health Care Providers, University of Maryland Medical Center, LLC, Maryland General Hospital, Inc, d/b/a University of Maryland Medical Center Midtown Campus, and University of Maryland Medical System Corporation, through their agents, servants, and/or employees, breached the applicable standard of care in their care and treatment of Stanley Dunham in and around October 28, 2013 through February 6, 2014, and that these breaches of the standard of care caused injury to Mr. Dunham.

Although the certificate named UMMC, Midtown, and UMMS, "through their agents, servants, and/or employees," as responsible for the breach of the standard of care, which caused Mr. Dunham's injury, it did not identify the specific agents, servants, or employees whose care was at issue. In his corresponding report, Dr. Gasparis again identified the health care ⁷⁵⁷ providers generally as UMMC, Midtown, and UMMS, "through their agents, servants, and/or employees," without specifying which of appellees' individual health care providers he believed to have provided deficient care. 3 ⁶³⁷ On December 1, 2016, after the Dunhams waived arbitration and the HCADRO issued an order of transfer, Mr. and Mrs. Dunham filed a two-count complaint against appellees, case number 24-C-16-006500 (" Dunham I "). The first count asserted a claim of negligence, alleging that appellees, and their "agents, servants, and employees," owed a duty to Mr. Dunham to "render and provide health care within the ordinary standards of medical, hospital and nursing care," to exercise care in its selection of personnel, and to supervise and provide patients with treatment "commensurate with the condition from which the patient suffers." It alleged that appellees and their agents were under a duty to provide care "in accordance with the standards of practice among members of the nursing profession," but the "actions and inactions of the [appellees], through their agents, servants, and employees, breached the applicable standards of nursing care," and as a result of the negligence of appellees, "acting through their agents, servants and employees, Mr. Dunham suffered severe and permanent injuries." The second count alleged loss of consortium, incorporating the allegations set forth in the first count and stating that the damages were caused by "the wrongful acts and omissions of the [appellees] directly and by and through their actual and apparent agents, servants, and/or employees." On February 2, 2017, appellees filed a Motion to Strike Plaintiffs' Certificate of Merit and Report and Motion to Dismiss and Request for Hearing. They argued that Dr. ⁶³⁸ Gasparis' certificate and report "fail[ed] to meet the mandatory minimum requirements set forth by the Health Care Malpractice Claims Act" because they "fail[ed] to identify by name [or specialty] any licensed professional health care provider(s) at [UMMC], [Midtown], and [UMMS] who [we]re alleged to have breached the standard of care." Appellees also argued that a proper certificate and report was an " 'indispensable step' and a condition precedent to the medical malpractice process," and "when a plaintiff fails to file an appropriate certificate and report, her case must be dismissed by the Circuit Court." The Dunhams filed an opposition, asserting that their certificate sufficiently stated the health care providers that breached the standard of care, noting that the health care institutions were named.

The Dunhams argued that the certificate was not required "to identify specific agents when a Defendant is an institutional agency." The Dunhams also argued that the certificate and report "contain[ed] sufficient ⁷⁵⁸ detail to allow for the [appellees] to identify which, of their own agents, servants and/or employees, treated [Mr. Dunham] throughout his lengthy, five (5) month admissions." In that regard, they asserted that it was "wholly unreasonable" to expect them "to identify the multitude of physicians and nursing staff who attended to [Mr. Dunham]" because, "[l]ike most medical charts, [Mr. Dunham's] record [was] replete with illegible handwritten notes that [were] impossible to decipher." Alternatively, Mr. and Mrs. Dunham argued that, if the court was persuaded that the certificate and report were deficient, the court was required to grant a 90-day extension to file an amended certificate pursuant to CJP § 3-2A-04(b)(1)(ii). 4 The Dunhams asserted that the extension was a matter of right and was not discretionary. ⁶³⁹ In reply, appellees reiterated their argument that it was the Dunhams' burden to identify the individual licensed professionals whose care was criticized in the certificate. They argued that, by naming only corporate entities, appellees were "unable to determine which of the thousands of licensed professionals that act as their employees, agents, and/or servants [were] being criticized for allegedly breaching the applicable standard of care." Appellees disputed the claim that the medical records were "impossible to decipher," asserting that they had provided electronic medical records, which "clearly identified in type-written format" many of the individual licensed professionals providing care to Mr. Dunham. Appellees also argued that the Dunhams were not entitled to an extension to file a proper certificate. They asserted that, because filing a proper certificate was a condition precedent to filing suit, the court did not have jurisdiction over the case or have authority to grant an extension, and Mr. and Mrs. Dunham had to return to the HCADRO to refile their claim. 5 On March 8, 2017, the court held a motions hearing on appellees' motion to strike the certificate and dismiss the case.

That same day, the court issued its ruling, stating as follows: In the case at bar, there is no specificity, nor mention of any particular licensed healthcare provider who allegedly violated the standard of care. The Court does not find that ⁶⁴⁰ identifying only the listed [appellees] in the certificate meets the required standards of specificity to determine whether any particular physician violated the standard of care. The Court is satisfied that, as filed, the certificate is deficient and does not comport with the statute on Maryland law. ⁷⁵⁹ The court then addressed Mr. and Mrs. Dunham's contention that they should be permitted an extension to file a conforming certificate. It stated: The Court notes the Plaintiffs have stated to the Court, if it is inclined to grant the request to dismiss, then under CJP [§] 3-2A-04(b)(1)(ii), the Court is required to grant a mandatory extension of no more than 90 days of filing the certificate [ ] if the limitations period applicable to the claim or action has expired, and the failure to file the certificate was neither willful, nor the result of gross negligence.

The Court has reviewed Puppolo v. Adventist Healthcare, and also notes that the court, also referring to D'Angelo, noted that the failure to file a proper certificate is tantamount to not having filed a certificate at all. The Court notes that one was filed in this particular case, but to apply CJP [ § 3-2A-04(b)(1)(ii) ] under the circumstances would not be consistent with what this Court believes was the intention of the legislature. Plaintiffs objectively would have the opportunity to file the bald [certificate] and then when it is found to be insufficient by the Court, ask for a do over. The Court does not find that to be appropriate.

As such, without a proper certificate, the Court finds that the matter should not be in the Circuit Court. Again, if the Plaintiffs so choose, they may file with HCADRO [where] there ... can be a determination whether limitations have been expired, ... whether the limitations have been tolled, or whether the failure to file a proper certificate is neither willful, nor the result of gross negligence. The Court, therefore, will grant the motion to strike the certification and motion to dismiss will be granted without prejudice. ⁶⁴¹ On April 10, 2017, Mr. and Mrs. Dunham appealed the dismissal of Dunham I. Dunham II On March 17, 2017, approximately one week after the circuit court's ruling in Dunham I , and prior to filing an appeal from that ruling, the Dunhams filed with the HCADRO a Motion for Extension of Time For Filing of a Certificate of Qualified Expert. In this pleading, they used the same claim number as that assigned to their initial claim in Dunham I. The Dunhams asserted that they were entitled to a 90-day extension to file a proper certificate, arguing that the HCADRO had jurisdiction over the action because the effect of the certificate being deficient was that the court never obtained jurisdiction of the claim, which "remained in HCADRO during this time." They also asserted that the failure to file a proper certificate was neither willful nor the result of gross negligence because they were "unable to identify specific heath care providers due to the illegibility of the Health Care Providers' own agents' handwriting," but on March 6, 2017, they "finally received the full medical chart from the Health Care Providers," which contained electronic entries that were easily ascertainable.

Appellees argued that the Dunhams could not reopen the statement of claim underlying Dunham I after waiving arbitration. They asserted that the filing of a certificate, proper or not, was a condition precedent to filing in court, and once arbitration was waived, the circuit court properly obtained jurisdiction of the matter. 6 ⁷⁶⁰ Appellees argued that, once the court dismissed the claim, Mr. and Mrs. Dunham were required to file a "new claim with a new claim number" in the HCADRO, rather than use the same claim number as before, ⁶⁴² because the transfer of the claim in Dunham I to the court removed the matter from the HCADRO's jurisdiction. Appellees alternatively argued that no good cause existed for an extension because, contrary to the Dunhams' assertion, appellees had produced, prior to suit being filed, records that included hand written notes and Electronic Medical Records ("EMR"), which contained chart records in electronic and typewritten format, including the names of "many of the individual licensed professionals that cared for Mr. Dunham." 7 Additionally, appellees asserted that, even if the individual identity of particular individuals could not be ascertained from the medical records, Mr. and Mrs. Dunham could have "identified particular specialties and specific dates, times, actions or inactions in the medical records that [were] claimed to constitute a breach of the standard of care." On April 13, 2017, the HCADRO ordered that Mr. and Mrs. Dunham be granted a 60-day extension to file a proper certificate. It found that it had the authority to grant an extension because the claim "was never properly transferred to the Circuit Court for Baltimore City due to the Claimant's failure to file a proper [certificate] with the [HCADRO]," and therefore, the HCADRO "retained jurisdiction of this claim due to the improper transfer." It concluded that an extension was warranted because the statute of limitations had expired, the Dunhams' failure to file a certificate "was neither willful nor the result of gross negligence," and there was "good cause for an extension." On April 24, 2017, again using the same claim number as the statement of claim underlying the court action in Dunham I , Mr. and Mrs. Dunham filed a second certificate and report with the HCADRO.

This certificate stated that appellees, through their agents, servants, and/or employees, including but not limited to 29 listed individuals, breached the standard of care. Mr. and Mrs. Dunham then elected to waive arbitration ⁶⁴³ to refile their claim in circuit court. On April 27, 2017, the HCADRO issued an order transferring the matter to circuit court. On May 12, 2017, Mr. and Mrs. Dunham filed another complaint in the circuit court, case number 24-C-17-002662 (" Dunham II "), asserting the same two causes of action raised in Dunham I against appellees.

The only substantive change from the complaint filed in Dunham I was an allegation in the body of the complaint of Dunham II , which identified 29 individuals, consistent with the names identified in the second certificate, who were alleged to have provided deficient care. 8 On June 23, 2017, appellees moved to strike the complaint, asserting that the case "ha[d] already been filed, litigated and argued" in the circuit court, it was pending on appeal, and therefore, the circuit court did not have "jurisdiction over this case." They asserted that Mr. and ⁷⁶¹ Mrs. Dunham had improperly "re-opened their Statement of Claim" in the HCADRO, which had no jurisdiction to act on the request. Mr. and Mrs. Dunham opposed appellees' motion to strike, and in the alternative, they sought a stay of Dunham II. They first argued that the HCADRO "retained jurisdiction over this case" after the claim was transferred to circuit court because the court "directed to do so." Second, they argued that they were not asking the court to address the sufficiency of the certificate at issue on appeal in Dunham I , but rather, they "brought a new case" seeking damages. Finally, Mr. and Mrs. Dunham requested that, if the court was not inclined to deny appellees' motion, it stay the matter pending the outcome of the appeal of Dunham I. On August 18, 2017, the court held a hearing on appellees' motion to strike the complaint filed in Dunham II.

The parties reiterated the arguments in their written pleadings. In response to the court's question whether this was a "parallel ⁶⁴⁴ related case" or "a duplicate case," counsel for the Dunhams stated that it was not a duplicate case "in the sense that [there was] a new case number" and a new certificate "that had changed the posture of the case." Counsel also asserted that, if the court granted a stay and ruled that the court had jurisdiction over the claim, counsel would dismiss the appeal. At the end of the hearing, the court stated that it was "inclined to grant the motion" to strike the complaint, but it was going to re-read a case before issuing its order. In an order entered on August 24, 2017, the court dismissed Dunham II.

It made the following findings: FOUND that the parties agree that the claim at issue in this case is the same claim that was at issue in case number 24-C-16-006500, that it involves the same parties and the same causes of action, and it is further FOUND that the court's March 8, 2017 decision to dismiss all claims in case number 24-C-16-006500 is currently pending appellate review in the Court of Special Appeals, and it is further FOUND that the principles of res judicata apply to bar action in the matter currently pending in this court, based upon the final judgment issued in case number 24-C-16-006500 and the fact that the matter is currently pending appellate review, and it is further FOUND that the application of the statute of limitations may serve to bar the instant action if it is treated as a "new" claim rather than the "reopening" of the original claim as Plaintiffs assert that it is, and it is further FOUND that no protective action in this matter will preserve the claims if, in fact, the limitations period has expired on the substantive claim, and it is further FOUND that the Plaintiff[s] may be successful in preserving the underlying claim through litigation of case number 24-C-16-006500 in the appellate court. The court then ordered, as follows: ORDERED that Plaintiff's [sic] Motion to Stay [ ] is DENIED , and it is further ⁶⁴⁵ ORDERED that the Defendant's [sic] Motion to Strike [ ], which this Court shall treat as a Motion to Dismiss, is GRANTED on the basis of res judicata. Mr. and Mrs. Dunham appealed the dismissal of Dunham II , which was consolidated with the appeal of Dunham I. STANDARD OF REVIEW Our review of the court's decision in this case involves the court's grant of ⁷⁶² motions to dismiss, as well as questions of statutory interpretation, and therefore, our review is de novo. See Breslin v. Powell , 421 Md. 266 , 277, 26 A.3d 878 (2011) (where an order "involves an interpretation and application of Maryland statutory and case law," appellate courts "must determine whether the lower court's conclusions are 'legally correct' under a [non-deferential] standard of review.") (quoting Walter v. Gunter , 367 Md. 386 , 392, 788 A.2d 609 (2001) ); Advance Telecom Process LLC v. DSFederal, Inc. , 224 Md. App. 164 , 173, 119 A.3d 175 (2015) (" 'We review the grant of a motion to dismiss de novo.' ") (quoting Unger v. Berger , 214 Md. App. 426 , 432, 76 A.3d 510 (2013) ).

DISCUSSION I. Healthcare Malpractice Claims Act Before addressing appellant's specific contentions on appeal, we address briefly the provisions of the Healthcare Malpractice Claims Act (the "Act"), CJP §§ 3-2A-01 et seq. The Act, in general, "governs procedures for all 'claims, suits, and actions ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought.' " Puppolo v. Adventist Healthcare, Inc. , 215 Md. App. 517 , 526, 81 A.3d 620 (2013) (quoting CJP § 3-2A-02(a)(1) ). Accord Retina Grp. of Wash., P.C. v. Crosetto , 237 Md.App. 150 , 164-65, 183 A.3d 873 (2018). To initiate a claim under the Act, " 'a person with a medical ⁶⁴⁶ malpractice claim [must] first file that claim with the Director of the [HCADRO].' " Walzer v. Osborne , 395 Md. 563 , 575, 911 A.2d 427 (2006) (quoting Edward W. McCready Mem'l Hosp. v. Hauser , 330 Md. 497 , 500-01, 624 A.2d 1249 (1993) ).

Within 90 days after filing a claim with the HCADRO, the plaintiff " 'must file a certificate of qualified expert ... attesting to a defendant's departure from the relevant standards of care which proximately cause the plaintiff's injury.' " Id. (quoting McCready , 330 Md. at 501 , 624 A.2d 1249 ). See CJP § 3-2A-04(b)(1)(i) 1. After filing the certificate, the plaintiff can waive arbitration and file suit in the circuit court.

CJP § 3-2A-06B(b)(1); Crosetto , 237 Md.App. at 165 -66 , 183 A.3d 873 . As this Court recently explained, however, "[a]lthough the certificate is a condition precedent to filing a medical malpractice case in circuit court, failure to satisfy that condition does not ... divest the court of subject matter jurisdiction." Crosetto , 237 Md.App. 150 at 165-66 n. 9, 183 A.3d 873 . Accord Kearney v. Berger , 416 Md. 628 , 660 n.13, 7 A.3d 593 (2010) ("We have ... explicitly rejected the notion that failure to satisfy the [Act's] procedures divests a trial court of subject matter jurisdiction."). The purpose of the health claims arbitration process and the certificate requirement is " 'to weed out non-meritorious claims and reduce the costs of litigation.' " Crosetto , 237 Md.App. at 166 , 183 A.3d 873 (quoting Wilcox v. Orellano , 443 Md. 177 , 184, 115 A.3d 621 (2015) ).

Accord Carroll v. Konits , 400 Md. 167 , 176, 929 A.2d 19 (2007) (the statute is "an attempt by the General Assembly, in substantial part, to limit the filing of frivolous malpractice claims."); Puppolo , 215 Md. App. at 531 , 81 A.3d 620 ("The purpose of the HCMCA is to 'weed out' unmeritorious malpractice claims.") (quoting D'Angelo v. St. Agnes Healthcare, Inc. , 157 Md. App. 631 , 645, 853 A.2d 813 (2004) ). Accordingly, the plaintiff's "certificate of qualified expert must include information necessary for evaluating whether the defendant breached the standard of care." ⁷⁶³ Kearney , 416 Md. at 651 , 7 A.3d 593 . It must "mention ⁶⁴⁷ explicitly the name of the licensed professional who allegedly breached the standard of care." Carroll , 400 Md. at 196 , 929 A.2d 19 . Accord Crosetto , 237 Md.App. at 167 -68 , 183 A.3d 873 (the certificate must identify with specificity the licensed professional(s) who breached the standard of care).

Requiring a medical malpractice claimant to identify the health care providers who allegedly provided deficient care is both "consistent with the General Assembly's intent to avoid non-meritorious claims" and "reasonable because the Certificate would be rendered useless without an identification of the allegedly negligent parties." Carroll , 400 Md. at 196 , 929 A.2d 19 . "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." Id. The " 'failure to file a proper certificate is tantamount to not having filed a certificate at all.' " Puppolo , 215 Md. App. at 532 , 81 A.3d 620 (quoting D'Angelo , 157 Md. App. at 645 , 853 A.2d 813 ). If a plaintiff fails to file an expert's certificate, as required, the Act mandates dismissal, without prejudice, " 'unless the plaintiff obtains one of three statutory extensions of the time to file an expert's certificate.' " Walzer , 395 Md. at 575 -76 , 911 A.2d 427 (quoting McCready , 330 Md. at 501 , 624 A.2d 1249 ).

Two statutory provisions involve an extension based on "good cause." 9 The extension the Dunhams sought in circuit court was pursuant to CJP § 3-2A-04(b), which provides, in pertinent part, as follows: ⁶⁴⁸ Unless the sole issue in the claim is lack of informed consent: (1) (i) 1. Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint; * * * (ii) In lieu of dismissing the claim or action, the panel chairman or the court 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 or action has expired; and 2. The failure to file the certificate was neither willful nor the result of gross negligence.

CJP § 3-2A-04(b).

II

Dunham I Mr. and Mrs. Dunham contend that the circuit court erred in dismissing Dunham I. In support, they make two arguments. First, they argue that "Maryland law does not require a certificate of qualified expert to name an individual, licensed health care provider when allegations involve direct ⁷⁶⁴ corporate liability." Second, they argue that the Act does not require a certificate "to identify specific agents when a defendant is an institutional agency." Appellees disagree. They contend that the court properly dismissed Dunham I. ⁶⁴⁹ A. Direct Corporate Liability The Dunhams argue that "a hospital can be directly negligent for the care administered to its patients," and pursuant to the doctrine of "corporate negligence," a hospital may be liable without "a showing of negligence of any heath care provider." Accordingly, they assert that they "should not be required to name a licensed, individual provider in their [certificate] when their negligence claim does not rely upon the actions or inactions of an individual, licensed provider." Appellees contend that the Dunhams "waived their claim that the appellees' alleged negligence involve[d] direct corporate liability [because] it was not raised below." In any event, they assert that the complaint did not allege corporate actions as the basis for their claims, but rather, the claim was "grounded on a theory of vicarious liability based on the alleged breach in the nursing standards of care." Appellees argue that dismissal was appropriate because neither the complaint nor the certificate alleged acts of negligence on the part of appellees "separate and apart from the alleged breaches of the standard of care of Appellees' 'agents, servants and/or employees.' " We address first appellees' claim that Mr. and Mrs. Dunham waived their claim that they alleged direct corporate liability because it was not raised below. The Dunhams dispute this contention, alleging that they did argue below that the hospitals could face independent liability where no individual licensed professional faced liability.

Maryland Rule 8-131(a) provides that, "[o]rdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court." "The application of the rule limiting the scope of appellate review to those issues and arguments raised