Hinebaugh v. Garrett County Memorial Hospital

EYLER, DEBORAH S., J. In the Circuit Court for Garrett County, Bryan C. Hinebaugh, the appellant, brought a medical malpractice action against P. Daniel Miller, D.O., Allegany Imaging, P.C. (“Alie ⁵ gany”), H. Stan Lambert, M.D., James K. Benjamin, M.D., and Garrett County Memorial Hospital (“GCMH”), the appellees. 1 The court granted, without prejudice, motions to dismiss filed by the appellees, ruling that Mr. Hinebaugh’s certificate of qualified expert (“Certificate”) did not satisfy the requirements of the Maryland Health Care Malpractice Claims Act (“the Act”), Md.Code (1974, 2006 Repl.Vol.), sections 3-2A-01 et seq. of the Courts and Judicial Proceedings Article (“CJP”). Mr. Hinebaugh appeals, presenting five questions, which we have combined and rephrased, as follows: Did the circuit court err in granting the appellees’ motion to dismiss both on the substance of the motion and because discovery had not been conducted in the case? 2 For the following reasons, we shall affirm the judgment of the circuit court. ⁶ FACTS AND PROCEEDINGS 3 On August 12, 2006, Mr. Hinebaugh, then 22 years old and incarcerated at a local jail, was hit in the face, sustaining injuries to his left cheek and jaw. He was seen by Dr. Miller, a family medicine doctor, and was transported to GCMH.

Dr. Miller ordered simple x-rays of Mr. Hinebaugh’s facial bones. 4 The x-rays were performed at GCMH and were evaluated by Dr. Miller and by Drs. Benjamin and Lambert, both of whom are radiologists. The radiological report of the x-rays, which was prepared based on the reviews by Drs. Benjamin and Lambert, stated that there were no radiographic abnormalities of Mr. Hinebaugh’s facial bones.

In the days that followed, Mr. Hinebaugh still was in pain and was experiencing “numbness in the area of his left cheek.” On August 17, 2006, he again was seen by Dr. Miller. 5 Dr. Miller did not render any additional treatment or order any further tests. Ten days after that, on August 27, 2006, Mr. Hinebaugh, having been released from jail, went to the GCMH emergency room, where he was seen by Dr. Robert Coughlin, who, like Dr. Miller, is a family medicine doctor. Mr. Hinebaugh complained that ever since the day of the assault he had been experiencing numbness and pain in the area of his left cheek ⁷ and pain in his left jaw, which was worse when he chewed. He reported that the pain was increasing.

After reviewing the chart and seeing that simple x-rays had been performed on August 12, 2006, and that they “were felt to be normal,” Dr. Coughlin ordered a maxillofacial CT scan. He read the CT scan himself. It showed “a left supraorbital fracture with displacement.” Dr. Coughlin prescribed pain medication for Mr. Hinebaugh and urged him to be seen that week either by Dr. Villanueva, an Ear Nose and Throat (“ENT”) doctor, or Dr. Strauss, an Oral and Maxillofacial Surgeon (“OMS”), for follow-up treatment. 6 It is unclear from the complaint exactly what follow-up treatment occurred, although Mr. Hinebaugh underwent surgery. On August 12, 2009, Mr. Hinebaugh filed a medical negligence claim in the Health Care ADR Office (“HCADRO”) naming Drs.

Miller, Lambert, and Benjamin as defendant health care providers. He alleged that the doctors had breached the standard of care by failing to timely perform a CT scan of his face; failing to obtain appropriate consultations; failing to timely diagnose and treat his condition; failing to timely order and interpret the proper tests and procedures and to render follow up care; failing to inform him that more experienced or competent physicians were available to diagnose and treat his condition; and failing to inform him of past instances of not properly rendering care to patients and past bad outcomes. Mr. Hinebaugh further alleged that, as a consequence of the breaches in the standard of care by the appellees, he was required to undergo “extensive intrusive surgical procedures.” He sought recovery for medical expenses, lost wages, future lost earnings, household expenses, and emotional pain and suffering. On March 15, 2010, after receiving several extensions of time, Mr. Hinebaugh filed a three-page Certificate and one-page report by John Mitcherling, D.D.S. The Certificate states in pertinent part, that: ⁸ • Dr. Mitcherling is licensed as a doctor of dental surgery, specializing in OMS. • Within the five years prior to Mr. Hinebaugh’s injury, Dr. Mitcherling had “clinical experience, provided consultation relating to clinical practice or taught medicine in the same speciality or a related field of health care as” Drs.

Miller, Lambert, and Benjamin. • Upon review of Mr. Hinebaugh’s medical records, Dr. Mitcherling formed the opinion that the defendant health care providers had breached the standard of care in their treatment of Mr. Hinebaugh and that those breaches were the proximate cause of the injuries to Mr. Hinebaugh. • Specifically, the defendant health care providers had breached the standard of care by “failing to timely perform a CT scan of [Mr. Hinebaugh’s] face and by failing to completely diagnose, evaluate and treat his condition when he was seen at [GCMH] on August 12, 2006.” Due to the breaches, “there was a significant delay in diagnosis of the condition and as a result there was a significant delay in any efforts to treat [Mr. Hinebaugh]’s condition.” If the facial fractures had been timely diagnosed, Mr. Hinebaugh would not have required “extensive, intrusive surgical procedures.” • Dr. Mitcherling opined that the defendant health care providers also “departed from the standard of care by failing to employ appropriate diagnostic tests and procedures to evaluate and diagnose Mr. Hinebaugh’s condition, failing to employ appropriate treatment, procedures and/or surgery to correct such condition, failing to appropriately monitor and evaluate Mr. Hinebaugh’s condition, failing to adjust Mr. Hinebaugh’s treatment in response to appropriate evaluation of the effects of treatment, and were otherwise negligent.” Dr. Mitcherling further opined that the “departures from the standard of care were the proximate cause of injury to Bryan Hinebaugh.” Dr. Mitcherling’s report sets forth the same opinions, in a more abbreviated fashion. ⁹ On May 26, 2010, Drs. Miller, Lambert, and Benjamin elected to waive arbitration. The HCADRO issued an order waiving arbitration on June 1, 2010. On July 26, 2010, in the Circuit Court for Garrett County, Mr. Hinebaugh filed a complaint alleging medical malpractice against Drs.

Miller, Lambert, and Benjamin, and also against GCMH and Allegany. In his complaint, Mr. Hinebaugh made the same allegations of deviations from the standard of care he had made in his complaint in the HCADRO, and likewise alleged that the breaches had caused him to suffer injuries. His allegations against GCMH and Allegany were based solely upon vicarious liability. 7 On October 14, 2010, Drs. Miller, Benjamin, and Lambert, together with Allegany, filed a joint motion to strike Dr. Mitcherling’s Certificate and to dismiss the complaint without prejudice for failure to file a Certificate satisfying the requirements of the Act.

As exhibits, they attached Mr. Hinebaugh’s ADR claim form, the order waiving arbitration, and the Certificate. On October 15, 2010, GCMH filed a similar motion. It attached as exhibits the complaint, the Certificate, and printouts from the Maryland Board of Physicians. The print-outs show that Dr. Miller is board certified in family medicine and that Drs.

Lambert and Benjamin are board certified in radiology. On November 1, 2010, Mr. Hinebaugh filed an opposition to the motions. In addition to the same exhibits furnished by the appellees, he attached Dr. Mitcherling’s 30-page Curriculum Vitae and a printout from the American Board of Medical Quality, which certifies dentists and medical doctors “in the science and management of improving clinical processes and outcomes in systems that service and deliver health care.” The printout shows that Dr. Mitcherling is certified by that board. Dr. Mitcherling’s Curriculum Vitae reflects that he received his doctor of dental surgery degree in a three-year ¹⁰ course of study from the University of Maryland Dental School, and, after two years of military service, went on to earn a post-doctoral degree in OMS in a three-year course of study at the Carle Foundation Hospital in Urbana, Illinois.

His entire dental career has been devoted to the practice of OMS. On November 9, 2010, GCMH filed a reply memorandum. On February 7, 2011, Mr. Hinebaugh filed a surreply and supplement to his opposition, attaching: 1) an affidavit by Dr. Mitcherling; 2) a Maryland Board of Physicians printout showing that Dr. Coughlin, who treated Mr. Hinebaugh at GCMH on August 27, 2006, is board certified in family medicine; and 3) GCMH records of his treatment by Dr. Coughlin that day. In his affidavit, Dr. Mitcherling attested that he is board certified in OMS by both the Maryland State Board of Dentistry and the American Association of Oral and Maxillofacial Surgeons; that he has privileges to practice at Good Samaritan Hospital, St. Agnes Hospital, Maryland General Hospital, Greater Baltimore Medical Center (“GBMC”), Union Memorial Hospital, Upper Chesapeake Medical Center, Saint Joseph’s Hospital, and Mercy Medical Center; that he is Chief of OMS at Good Samaritan and Maryland General Hospitals; and that he is on the “Resident Teaching Staff’ at GBMC, Maryland General Hospital, and St. Agnes Hospital.

Dr. Mitcherling further averred that the health care field of OMS is one of only three in which health care providers “diagnose and treat facial fractures caused by traumatic injuries,” the other two being plastic surgery and otolaryngology (ENT). He also attested that “[njeither family doctors nor radiologists are qualified to treat facial fractures caused by traumatic injuries.” He explained that within the five years prior to August 2006, he had “regularly diagnosed and treated individuals who suffered facial fractures caused by traumatic injuries.” Also during that time, he had taught residents at GBMC, Maryland General Hospital, and St. Agnes Hospital “the clinical aspects of diagnosing and treating individuals who ¹¹ have suffered facial fractures caused by traumatic injuries.” He attested that those clinical aspects include “reviewing, analyzing and evaluating diagnostic studies such as x-rays and CT scans of the patient’s injuries.” Dr. Mitcherling opined in his affidavit that it is the “normal protocol” when a patient presents to the emergency room “after suffering facial fractures caused by traumatic injuries” for the emergency room physician to consult with an OMS, plastic surgeon, or ENT “in order to diagnose and treat the patient” and, in that capacity, he has been “regularly called” to emergency rooms “on an emergent basis by emergency room personnel in order to diagnose and treat individuals who have suffered facial fractures caused by traumatic injuries.” He further attested that it is his practice and the practice of other OMSs to review and analyze diagnostic studies such as x-rays and CT scans personally, rather than to rely upon emergency room physicians, radiologists, or other health care providers to do so. He averred that, as an OMS, he is qualified to render an opinion as to whether the appellees departed from the standard of care in their diagnoses and treatment of Mr. Hinebaugh, and he reiterated his opinion that those doctors indeed had breached the standard of care. Finally, he attested that he has “been qualified as an expert and ha[s] testified as an expert in court proceedings on multiple occasions in cases in which the issues involve the failure to properly diagnose and/or treat patients who have suffered facial fractures caused by traumatic injuries.” On February 4, 2011, the court held a non-evidentiary hearing on the motions to dismiss.

Before discussing the court’s ruling, we shall review for context the provisions in the Act that govern Certificates in medical malpractice cases. Unless the defendant has admitted liability or the sole issue is informed consent, the plaintiff in a medical malpractice case must file a “certificate of a qualified expert” who “attest[s] to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury.” CJP § 3-2A-04(b)(1)(i)1. The Certificate shall be accompa ¹² nied by “a report of the attesting expert.” CJP § 3-2A-04(b)(3)(i). “Discovery is available as to the basis of the certificate.” CJP § 3—2A—04(b)(3)(ii). If the plaintiff fails to file a valid Certificate, the claim shall be dismissed without prejudice.

CJP § 3-2A-04(b)(l)(i)l. CJP section 3-2A-02(c) is entitled “Establishing liability of health care provider; qualifications of persons testifying.” Subsection (c)(2)(ii) sets forth the qualifications a health care provider must possess to sign a Certificate (or to give expert witness opinion testimony on the standard of care element of the tort of medical negligence at a hearing or trial). It states: (ii)l. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standards of care: A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant. 2.

Subsubparagraph IB of this subparagraph does not apply if: A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or B. The health care provider taught medicine in the defendant’s specialty or a related field of health care. (Emphasis added.) In their motions to dismiss, the appellees argued that Dr. Mitcherling does not meet the “same or related specialty” ¹³ board certification prerequisite in CJP subsubparagraph 3-2A-02(c)(2)(ii)1B; and that neither of the exceptions to that prerequisite, as set forth in CJP section 3-2A-02(c)(2)(ii)2A and B, apply. Therefore, Dr. Mitcherling was not qualified to submit a valid Certificate attesting to breaches of standards of care by Drs. Miller, Lambert, or Benjamin. 8 They maintained that for these reasons the Certificate was a nullity.

With no valid Certificate having been filed, Mr. Hinebaugh’s medical malpractice claims had to be dismissed, without prejudice, pursuant to CJP section 3-2A-04 (b)(l)(i)l. See also Breslin v. Powell, supra. In his opposition to the motions to dismiss, Mr. Hinebaugh asserted that, although Dr. Mitcherling is not board certified in the same specialties as the appellees, he is board certified in a “related specialty”; and that, even if Dr. Mitcherling is not board certified in a “related specialty,” he is qualified to sign a Certificate under the exceptions set forth in CJP section 3-2A-02(c)(2)(ii)2A and B, as, with respect to Dr. Miller, Dr. Miller was providing treatment to Mr. Hinebaugh unrelated to family medicine, and because he (Dr. Mitcherling) “taught medicine in the defendant[s’] specialty or a related field of health care.” The court heard argument of counsel on the motions to dismiss and on March 24, 2011, issued a memorandum opinion and order granting the motions without prejudice. The court found that Dr. Mitcherling is not board certified in “the same or a related specialty” as any of the defendants and that neither of the exceptions to that requirement applied.

Focusing first on the “board certified in the same or a related specialty” requirement in (c)(2)(ii)lB, the court framed the central issue as “whether [OMS] is a speciality that is related to radiology or family medicine.” Using dictionary definitions, the court determined that a “related” field or speciality is one ¹⁴ that is “connected.” Pointing out that the Act does not “delineate the extent of this connection,” the court reasoned that, in light of the purpose of the Act, which is to “screen malpractice claims” and “ferret out meritless ones,” Adler v. Hyman, 334 Md. 568, 575 , 640 A.2d 1100 (1994), “ ‘a related speciality’ must be something more circumscribed than merely another type of health care practice.” The court took judicial notice of certain facts about each of the health care specialities at issue: OMS, family medicine, and radiology. These facts were drawn from definitions in the Maryland Code and COMAR, and publications by the American Medical Association, the American Dental Association, the Bureau of Labor Statistics, the American Board of OMS, the American Board of Family Medicine, the American Academy of Family Physicians, the American Board of Medical Specialties, and several schools of medicine. 9 The court contrasted the highly specialized training and expertise of OMS dentists, who treat the bones and soft tissues of the mouth, neck, and jaw, with the training and expertise of family medicine doctors, who treat the entire body and all aspects of a patient’s ¹⁵ physical and mental health. With respect to the radiologists, the court emphasized the specialized nature of diagnostic radiological training and practice. The court took into account Mr. Hinebaugh’s argument that Dr. Mitcherling has “ Vast and broad’ experiences in the fields of anesthesiology, laser medicine, forensics, pain management, osseointegration, oral implantology, and medical quality management.” Nevertheless, the court opined that permitting a dentist to offer an expert opinion as to whether a physician adhered to the standards of care in his speciality of family medicine or radiology would be inconsistent with the purpose of the Act.

The court concluded that in this case the respective fields and specialties of the health care providers are not sufficiently related to allow “[Mr. Hinebaugh’s] expert to express an opinion regarding the defendants’ standards of care and any alleged breach thereof [as that] would not foster the Act’s goal of decreasing the likelihood of the filing of meritless claims.” In reasoning that the specialty of OMS is not “sufficiently related” to the specialties of family medicine or radiology, so as to satisfy CJP section 3-2A-02(c)(2)(ii)1B, the court remarked that “the relatedness required by CJ[P] § 3-2A-02(c)(2)(ii) is not the relationship of the expert’s specialty to the type of treatment the plaintiff received, but rather the relatedness of the expert’s speciality to the defendants’ area of expertise.” The court decided that, although, as a specialist in OMS, Dr. Mitcherling would have been qualified to order and interpret radiological studies of Mr. Hinebaugh’s face and to treat the injury he had suffered, including performing surgery to correct the injury, he was not qualified to opine about the standards of care that govern family medicine doctors and radiologists in diagnosing and treating patients presenting with the history and symptoms that Mr. Hinebaugh did. The court observed that, even though the “component” tasks performed by an OMS are similar to some of the “component” tasks performed by a family medicine doctor or a radiologist, that does not mean that the board certification specialties are “related,” as is required by CJP section 3-2A-02(e)(2)(ii)1B ¹⁶ (assuming that the specialties are not certified by the same board). The court further ruled that neither exception to the “same or related” board certification requirement applied in this case. It concluded that Dr. Miller had treated Mr. Hinebaugh within his specialty (family medicine) so the exception in subsubparagraph (c)(2)(ii)2A was not implicated; and Dr. Mitcherling had not “taught medicine in ... a related field of healthcare,” so the exception in subsubparagraph (c)(2)(ii)2B did not apply.

With respect to the latter exception, the court determined that, although Dr. Mitcherling had taught OMS in OMS and dental departments and also in surgery departments of hospitals, the specialty of surgery was not related to the defendants’ specialties; and, in any event, Dr. Mitcherling had not taught general surgery, because he is not a physician. Mr. Hinebaugh noted a timely appeal to this Court from the order dismissing his complaint. DISCUSSION Mr. Hinebaugh contends the circuit court erred as a matter of law in ruling that Dr. Mitcherling was not qualified to sign a Certificate in this case and that his Certificate therefore was a nullity. He asserts that the court did not properly interpret the board certification in a “related specialty” language in CJP section 3-2A-02(c)(2)(ii)lB; and that, under a proper interpretation of that language, OMS is a “related specialty” to both family medicine and radiology.

Accordingly, Dr. Mitcherling satisfied the board certification requirement of the statute that applies when the defendant health care provider is board certified, as the defendants in this case are. Mr. Hinebaugh further argues that, even if Dr. Mitcherling is not board certified in a “related specialty” to the board certification specialties of the defendant health care providers, the exceptions to that requirement set forth in subsubparagraph 3-2A-02(c)(2)(ii)2 A and B apply. He maintains that the court failed to properly interpret the language of the exceptions. Specifically, he argues that Dr. Miller was prac ¹⁷ ticing emergency medicine, not family medicine, when he committed the alleged acts of negligence, so exception 2A applied to him; and that, as to all three defendants, Dr. Mitcherling has “taught medicine” in a “field of health care” that is “related” to family medicine and radiology, so exception 2B applied to them as well.

As an alternative contention, Mr. Hinebaugh asserts that the court prematurely ruled on whether Dr. Mitcherling was qualified to sign a Certificate because the Act expressly allows for discovery into the basis for a Certificate, but discovery was not conducted. Whether a Certificate and report of attesting expert are satisfactory under CJP section 3-2A-01 et seq. “is a determination to be made as a matter of law.” Carroll v. Konits, 400 Md. 167 , 180 n. 11, 929 A.2d 19 (2007). “[D]is-missal is only appropriate if, after assuming the truth of the assertions in the Certificate and report, and all permissible inferences emanating therefrom, the requirements set forth in the [Act] are not satisfied.” Id. Likewise, a question of statutory interpretation is one of law. See, e.g., Univ. of Md. Med.

Sys. Corp. v. Waldt, 411 Md. 207, 222 , 983 A.2d 112 (2009). As always, on pure issues of law, our standard of review is de novo. See, e.g., Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006).

Is Dr. Mitcherling, A Board Certified OMS, Board Certified In The “Same or Related Specialty” As The Defendant Health Care Providers? Recently, in DeMuth v. Strong, 205 Md.App. 521 , 45 A.3d 898 (2012), we applied the well-established principles of statutory construction to determine the meaning of the phrase “related specialty” in CJP section 3-2A-02(c)(2)(ii)1B. 10 We ¹⁸ reasoned that the word “related,” considered in the context of both subsubparagraph 1A, in which it modifies “field of health care,” and subsubparagraph IB, in which it modifies “specialty,” has its ordinary plain dictionary meaning of “associated” or “connected.” Id. at 535-36 , 45 A.3d 898 . Taking into account the purpose of the Act, which is to weed out non-meritorious medical malpractice claims but not to create roadblocks to the pursuit of meritorious medical malpractice claims, we concluded that fields of health care are “related,” and hence board certified specialties are “related,” when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case. We held in DeMuth that a board certified vascular surgeon was qualified to give standard of care opinion testimony against the defendant board certified orthopedic surgeon because the treatment, or failure to treat, at issue took place in the postoperative period of a patient who underwent knee replacement surgery, and concerned proper monitoring and testing of the patient to assure that there was adequate blood flow to his leg.

Orthopedic surgeons and vascular surgeons all are specialists who diagnose, treat, and are familiar with ¹⁹ the standards of practice that apply to the postoperative care of patients as relevant to adequate blood flow. In that regard the specialties overlap, and thus are connected or associated within the meaning of CJP section 3-2A-02(c)(2)(ii)lB. In DeMuth , although the defendant and the expert witness testifying against him were board certified in different, although in some aspects related, specialties, both were physicians. In the case at bar, the certifying expert witness is a dentist, not a physician.

The appellees maintain that the fact that Dr. Mitcherling is a dentist, not a physician, renders him unqualified to opine, in a Certificate, that the physician defendants departed from the standard of care in their treatment of Mr. Hinebaugh. In effect, they argue that dentistry is not a field or specialty of health care that is related to medical fields or specialties of health care, and therefore board certification in dentistry can never be “related to” board certification in a medical specialty. Under CJP section 3-2A-02, of which IB is a part, [a]ll claims, suits, and actions, including cross claims, third-party claims, and [wrongful death] claims, 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 are subject to and shall be governed by the provisions of [the Act]. CJP § 3-2A-02(a).

The definition of “health care provider” in the Act is expansive, including virtually every type of health care practitioner and facility licensed or authorized to provide health care services in this state. CJP § 3-2A-01 (f). 11 Phy ²⁰ sicians, osteopaths, and dentists all are “health care providers” under the Act. 12 It is undisputed that Dr. Mitcherling is a dentist who specializes in OMS, and that he is board certified to practice in the specialty of OMS by the American Board of Oral and Maxillofacial Surgeons. Thus, he is a health care provider, and he is board certified in a specialty. Likewise, the defendant physicians are health care providers who are board certified in specialties—Dr. Miller in family medicine and Drs.

Lambert and Benjamin in radiology. A plain reading of the language of CJP section 3-2A-02 leads us to conclude that it is not necessary for a certifying or testifying expert witness in a medical malpractice case to be the same kind of health care provider as the defendant, i.e., that they both be dentists, both be physicians, both be podiatrists, etc. Subsection (c) of CJP section 3-2A-02, entitled “Establishing liability of health care provider; qualifications of persons testifying,” provides at subparagraph (1) that the health' care provider defendant only will be liable if “it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities .... ” That statute does not require that the applicable standards of practice be established by an expert witness in the same health care profession as the defendant. Nor do the prerequisites for a person to sign a certificate of qualified expert or testify concerning “a defendant’s compliance with or departure from standards of care” include any words to the effect that the attesting or testifying expert must be a member of the same health care profession as the defendant. CJP § 3-2A-02(c)(2).

The only prerequisites are that the certifying or testifying expert be a “health care provider,” “have had clinical experience, provided consultation ²¹ relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff’ within a specified period of time, and “be board certified in the same or a related specialty as the defendant” if the defendant is board certified in a specialty. CJP §§ 3-2A-02(c)(2)(ii)lA and B. Thus, the plain language of the statute requires that the expert witness signing the certificate or testifying be a “health care provider” but does not require that the expert and the defendant be the same kind of health care provider. Accordingly, the mere fact that Dr. Mitcherling is a dentist and the defendants are physicians did not disqualify Dr. Mitcherling from signing a valid Certificate in this case. 13 ²² Having determined that the governing statute did not preclude Dr. Mitcherling, as a dentist, from issuing a Certificate attesting to departures from the standard of care by the appellee physicians, and because the appellee physicians all are board certified in specialties, we move to the question whether Dr. Mitcherling is board certified in a “related specialty” vis a vis the appellee physicians. (Clearly, he is not board certified in the “same specialty” as any of them.) As explained above, in DeMuth we held that a “related specialty” for purposes of the board certification requirement in CJP section 3-2A-02(c)(2)(ii)lB, is one in which, as pertinent to the treatment or procedure at issue, there is an overlap between the specialties in the rendering of treatment or the performance of procedures, such that there also is an overlap of knowledge of the treatments and procedures among those health care providers certified in either specialty.

In DeMuth , the evidence showed a treatment overlap between board certified orthopedic surgeons and board certified vascular surgeons with respect to the postoperative management of orthopedic patients. Specifically, board certified orthopedic surgeons and board certified vascular surgeons both engage