Kearney v. Berger

RASIN, J. This medical malpractice appeal requires us to consider, inter alia, whether a Motion for Extension for Good Cause must be filed within the statutory 180-day time period as provided in Md.Code. Ann. (1974, 2001 Repl. Vol.), § 3-2A-04 of the Courts and Judicial Proceedings Article. 1 The matter is rooted in a negligence action filed in the Circuit Court for Anne Arundel County by appellants, Gail A. Kearney, individually and as Personal Representative of the Estate of Kevin M. Kearney, Meghan and Robert Kearney, as surviving children of Mr. Kearney, and Thomas Kearney, as surviving father of Mr. Kearney, alleging survival and wrongful death claims arising from the death of Kevin M. Kearney (“Kearney”), who was treated for a malignant melanoma, and subsequently died as a result of the melanoma. Appellee Dr. Robert S. Berger, M.D. filed a Motion to Dismiss for failure to comply with the statutory procedure of the Health Care Malpractice Claims Statute.

The circuit court granted appellee’s motion and dismissed appellants’ claim without prejudice. ¹⁸⁹ This appeal was thereafter timely noted, in which appellants present the following questions for our review: I. When a plaintiff specifically avers to having met a required precondition to filing a claim, does a defendant waive objections to that averment by failing to deny it by either pre-answer motion or in the defendant’s answer itself?

II

Did the trial court err in determining that appellants’ motion for extension of time must be denied as untimely; and if so, does good cause exist to grant the requested extension when appellants relied-among other things-on a government official’s ruling or lack thereof? For the reasons that follow, we answer question one in the negative, question two in the affirmative and, accordingly, reverse the judgment of the Circuit Court for Anne Arundel County. I. FACTUAL BACKGROUND AND PROCEDURAL SUMMARY On August 16, 2001, Dr. Berger treated Kearney for a protruding mole that was three-eighths of an inch in diameter and located on his lower left calf. Dr. Berger froze the mole and excised it.

In October 2002, the mole returned and Dr. Berger again froze and excised the mole. When the mole returned in November 2002, Dr. Berger removed the mole and sent tissue from the mole to a laboratory for a pathological study. Approximately three days after the tissue was sent to the laboratory, Dr. Berger informed Kearney that the mole tested positive for melanoma. Kearney was then directed to consult an oncologist.

The malignant melanoma metastasized and appellants assert that Dr. Berger’s delay in ordering a pathological study was the proximate cause of Kearney’s death on August 18, 2003. On August 6, 2004, appellants filed a claim with the Health Claims Arbitration Dispute Resolution Office (HCADRO) 2 for ¹⁹⁰ wrongful death and survival actions relating to the death of Kearney. Along with the claim, appellants filed a Certification of Dr. Max Cohen. A report, however, was not attached to Dr. Cohen’s certification.

On June 9, 2005, a Waiver of Arbitration was filed. Appellants subsequently filed a Complaint in the Circuit Court for Anne Arundel County. On January 8, 2007, appellee filed a Motion to Dismiss based on the appellants’ failure to file a sufficient certificate in the HCADRO within the time limits. On January 19, 2007, appellants filed a Motion for Extension of Time to Amend the Certificate of Merit for good cause in the HCADRO. 3 A Motion for Extension was also filed in the Circuit Court on January 22, 2007.

On April 23, 2007, a motions hearing was held in the Circuit Court for Anne Arundel County. In a ruling from the bench, the trial court granted appellee’s motion, finding that appellants failed to file a report as required under Walser v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006). The court further determined that the certificate failed to comply with § 3-2A-04(b)(4) and that the Motion for Extension was untimely. Thereafter, appellants filed a Motion to Reconsider Dismissal of Claim.

The Motion was denied on June 12, 2007.

II

STANDARD OF REVIEW In reviewing a trial court’s grant of a motion to dismiss, “the truth of all well-pleaded relevant and material facts is assumed, as well as all inferences which can be reasonably drawn from the pleadings.” Odyniec v. Schneider, 322 Md. 520, 525 , 588 A.2d 786, 788 (1991). Dismissal at the ¹⁹¹ trial court level will only be proper if, after assuming the allegations and permissible inferences flowing therefrom are true, the plaintiff would not be afforded relief. McNack v. State, 398 Md. 378 , 920 A.2d 1097, 1102 (2007) (citing Lloyd v. General Motors Corp., 397 Md. 108, 121 , 916 A.2d 257, 264 (2007)).

III

ANALYSIS A. In 1976, the General Assembly enacted the Health Care Malpractice Claims Statute (the Statute) in response to explosive growth in medical malpractice claims and the resulting effect on health care providers’ ability to obtain malpractice insurance. 1976 Md. Laws, Chap. 235; see generally K. Quinn, The Health Care Malpractice Claims Statute: Maryland’s Response to the Medical Malpractice Crisis, 10 U. Balt. L.Rev. 74 (1980) (describing evolution of Statute and assessing its early effectiveness). “[T]he general thrust of the Act is that medical malpractice claims be submitted to arbitration as a precondition to court action” where the potential claim exceeds the district court’s concurrent jurisdiction. Attorney General v. Johnson, 282 Md. 274, 278-79 , 385 A.2d 57, 60 (1978); see also Oxtoby v. McGowan, 294 Md. 83, 91 , 447 A.2d 860, 865 (1982); Md.Code (1974; 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 3-2A-02(a). The basic procedures for initiating and maintaining a claim under the Statute require that a person with a medical malpractice claim first file that claim with the Director of the HCADRO. § 3-2A-04(a).

Thereafter, the plaintiff must file a certificate of qualified expert ... attesting to a defendant’s departure from the relevant standards of care which proximately caused the plaintiffs injury. § 3 — 2A.—04(b)(1)(i). In 1986, the General Assembly enacted an amendment requiring the filing of a certificate and an attesting expert’s report. 4 By ¹⁹² enacting the 1986 amendment, the General Assembly determined that, in the context of a medical malpractice claim, in order to maintain an action against a health care provider, a plaintiff is required to file a certificate and an attesting expert’s report in addition to filing a complaint. In general, the Statute mandates that failure to file an expert’s certificate within 90 days after filing the claim results in a dismissal of the claim. In order to relieve the harshness of that provision, the General Assembly, in 1989, enacted an amendment to the statute, by which, “[i]n lieu of dismissing the claim, the panel chairman shall grant an extension of no more than 90 days for filing the certificate ...,” if limitations have expired as to the claim and the “failure to file the certificate was neither willful nor the result of gross negligence.” § 3-2A-04(b)(l)(ii).

In addition to the automatic 90-day extension, 5 the General Assembly provided two other escape valves, both of which are applicable to this case. Section 3-2A-04(b)(5) provides that “[a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for ¹⁹³ good cause shown.” Section 3-2A-05(j) states that, “[e]xcept for time limitations pertaining to the filing of a claim or response, the Director or the panel chairman, for good cause shown, may lengthen or shorten the time limitations prescribed in subsections (b) and (g) of this section and § 3 -2A-04 of this article.” B. Before determining whether the request for an extension was made in a timely manner, this Court must address appellants’ argument that appellee has waived his right to object. Appellants maintain that appellee has waived any objection that the condition precedent of filing a proper certificate was not met. According to appellants, appellee waived any objection based upon the failure to meet a condition precedent by failing to timely deny appellants’ specific averment in the complaint that they satisfied the condition precedents set forth in the Statute.

Appellee argues that the requirement to file a proper certificate is a condition precedent and therefore cannot be waived at any time. He contends that Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007) has “addressed the ‘mandatory nature of conditions precedent.’ ” With respect to whether the requirement to file a proper certificate operates as a condition precedent to the maintenance of a medical malpractice claim, we begin with a review of the analysis in Carroll . In Carroll, supra, the plaintiffs filed a claim with the HCADRO, naming Dr. Phillip H. Konits and Dr. Efem E. Imoke as defendants. 400 Md. at 171 , 929 A.2d at 21 . The claim was then transferred to the Circuit Court for Baltimore City where it was dismissed on various grounds, including, but not limited to, Carroll’s failure to submit a proper certificate of qualified expert.

Id. While on appeal to this Court, the Court of Appeals issued a ■writ of certiorari on its own motion to determine whether the Circuit Court erred in finding that Mary Carroll’s expert witness report and certification were legally sufficient, thereby ¹⁹⁴ dismissing the case. The Court of Appeals upheld the dismissal, stating: “[BJecause the [c]ertificate is a condition precedent, the Circuit Court for Baltimore City correctly granted the appellees’ motion to dismiss the case.” 400 Md. at 171 , 929 A.2d at 21 . Carroll established that the filing of a proper certificate operates as a condition precedent to filing a claim in Circuit Court.

This finding was based on the ground that because arbitration is a condition precedent to filing a claim in a Circuit Court, and because the filing of a certificate is an indispensable step in the arbitration process, a proper certificate must be filed or the condition precedent is not satisfied. 400 Md. at 181 , 929 A.2d at 28 ; Witte v. Azarian, 369 Md. 518, 527 , 801 A.2d 160, 166 (2002) (recognizing that a claimant must file with the HCADRO and comply with all statutory provisions before proceeding to a circuit court); McCready, 330 Md. 497, 512 , 624 A.2d 1249, 1257 (1993) (finding that “the Maryland Health Care Malpractice Claims Statute mandates that claimants arbitrate their claims before the [HCA DRO] as a condition precedent to maintaining their suit in circuit court.”). The Carroll Court stated: “In Georgia-Pacific Corp. v. Benjamin, 394 Md. 59 , 904 A.2d 511 (2006), we discussed the mandatory nature of conditions precedent, albeit in a different context. There we said: ‘[A] condition precedent cannot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied.’ ” 400 Md. at 182 , 929 A.2d at 28 n. 12. Furthermore, in summarizing the difference between a statute of limitations and a condition precedent, the Court continued: “The defense of limitations may be waived; however, a condition precedent to liability may not be waived.” 400 Md. at 182 , 929 A.2d at 28 (quoting Georgia-Pacific Corp., 394 Md. at 85 , 904 A.2d at 526 ).

Appellants recognize that filing a statement of claim with the HCADRO and the filing of a certificate of qualified expert are each a condition precedent to the institution of a medical malpractice claim. Appellants, however, contend that the decision of the Court of Appeals in Carroll is not applicable. ¹⁹⁵ Appellants argue that by specifically averring that the certificate was sufficient under the statute, appellee was required to deny the averment or waive any objection based on the sufficiency of the certificate. This specific averment, appellants argue, is what distinguishes the present issue from prior condition precedents that have been deemed unwaivable. Appellants rely on Maryland Rules of Civil Procedure, which state, “a party shall admit or deny the averments upon which the adverse party relies---- Denials shall fairly meet the substance of the averments denied.” Md. R. Civ.

Pro. § 2-323 (2007). Appellants continue to argue that the Rules state, “[ajverments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted unless denied in the responsive pleading or covered by a general denial.” Id. Appellants argue that the trial court’s ruling means that “a party can lie in wait and spring a hyper-technical trap to avoid a trial long after the case had been filed, an Answer submitted, and with trial fast approaching.” Despite appellants’ attempt to distinguish the two scenarios, appellants’ reliance on the Maryland Rules is misplaced. It is clear that the Court of Appeals has determined that a condition precedent cannot be waived at any time.

In accordance with prior case law, we hold that the filing of a certificate operates as a condition precedent, which cannot be waived, and therefore, appellee did not waive any objection by failing to generally or specifically deny the specific averment by the appellants. C. Determining whether the Legislature intended the request of an extension for good cause to be made before the expiration of the statutory 180-day period is a matter of statutory construction. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Chow v. State, 393 Md. 431, 443 , 903 A.2d 388, 395 (2006)