Lewis v. Waletzky

BARBERA, J. We have before us a question of law certified by the United States Court of Appeals for the Fourth Circuit pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 2006 RepLVoL), § § 12-601 to 12-613 of the Courts and Judicial Proceedings Article (“CJ”). The question arises from a medical malpractice suit that Katherine Lewis filed in the United States District Court for the District of Maryland (“District Court”) against her former psychiatrist, Dr. Jeremy P. Waletzky, for injuries she allegedly sustained as a result of medications he prescribed to her. Medical malpractice cases in Maryland are governed by the Health Care Malpractice Claims statute (herein “the Act”), CJ §§ 3-2A-01 through 3-2A-10. 1 As will be explained in more detail infra, Lewis did not comply with various administrative filing requirements set forth in the Act before filing her complaint in the District Court. Under Maryland law, those administrative filing requirements are a condition precedent to initiating suit in Maryland state courts and federal courts located in Maryland.

Carroll v. Konits, 400 Md. 167, 181 , 929 A.2d 19, 28 (2007). Failure to meet these requirements, when applicable, results in dismissal of the suit ⁶⁵¹ ■without prejudice. Kearney v. Berger, 416 Md. 628, 668-69 , 7 A.3d 593, 616-17 (2010). Before the District Court, Waletzky filed a motion to dismiss the complaint, arguing that Lewis was required to have complied with the Act’s filing requirements.

Lewis responded that she was not subject to the Act because the injury occurred in Washington, D.C. (hereinafter “D.C.”) and therefore D.C. law governed her malpractice suit. Resolution of that matter implicates choice-of-law principles, to which the District Court, sitting in diversity jurisdiction, was required to apply Maryland’s choice-of-law principles. See, e.g., Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 , 96 S.Ct. 167 , 46 L.Ed.2d 3 (1975) (per curiam) (holding that federal courts sitting in diversity jurisdiction must apply the choice-of-law rules of the state in which the court is located).

Following argument and briefing, the District Court filed a written opinion granting Waletzky’s motion to dismiss. The District Court considered the filing requirements of the Act to be substantive tort law; the court therefore focused on Maryland’s application of lex loci delicti. That rule directs a court to “apply the [substantive tort] law of the place where the tort or wrong was committed.” See Lab. Corp. of Am. v. Hood, 395 Md. 608, 613 , 911 A.2d 841, 844 (2006).

Because the injury occurred in D.C., 2 the District Court reasoned that, pursuant to lex loci delicti, D.C. law, which at that time had no specific procedural requirements for medical malpractice claims, would govern the present litigation. The District Court determined, however, that the Act’s filing requirements implicated strong public policy sufficient to require Lewis’s compliance with those requirements, thereby invoking the ⁶⁵² public policy exception to lex loci delicti. The District Court therefore dismissed the suit without prejudice, pursuant to Kearney. See Kearney, 416 Md. at 668-69 , 7 A.3d at 616-17 (explaining that failure to comply with the requirements of the Act requires dismissal without prejudice).

On appeal, the United States Court of Appeals for the Fourth Circuit (hereinafter “Court of Appeals”) determined that the choice-of-law issue involves a question of unresolved Maryland law and, thus, should be decided by this Court. The Court of Appeals certified the following question to this Court: Does Maryland recognize the public policy exception, or any other exception, to lex loci delicti based on the Maryland Health Care Malpractice Claims Act ... which requires a plaintiff to comply with certain mandatory administrative filings prior to filing a medical malpractice lawsuit in a Maryland court? I. As we have mentioned, this litigation involves a claim of alleged medical malpractice. The Court of Appeals has provided us with the underlying facts of the federal suit: Lewis alleges the following facts in her complaint which, for purposes of this appeal, are not disputed....

Lewis, once a resident of [Washington, D.C.] and currently a resident of Minnesota was formerly a patient of Waletzky. Waletzky, at all times relevant, was a physician licensed to practice in the State of Maryland and had his office in Chevy Chase or Bethesda, Maryland. From approximately October 2000 until January 2005, Waletzky was Lewis’ psychiatrist and treated her at his Chevy Chase office. Waletzky prescribed several psychotropic medications to Lewis, including antidepressants and stimulants, and also prescribed antipsychotic and/or neuroleptic drugs.

All of the prescribed medications were filled in pharmacies in [Washington, DC] and ingested by Lewis while she was in [Washington, DC]. During the treatment period, Waletzky did not diagnose Lewis with any serious mental disorder and never made any ⁶⁵³ diagnosis of Lewis’ psychiatric condition. After taking the prescribed antipsychotics, Lewis began experiencing adverse side effects and discontinued her use of these medications. Immediately after experiencing these adverse side effects, Lewis suffered, for the first time in her life, an anxiety attack.

She contacted Waletzky who instructed her to continue taking the antipsychotic medications and wrote her additional prescriptions in order for her to “taper off’ the antipsychotic medications. While she was “tapering off’ the antipsychotic medications, Lewis continued to experience adverse side effects, including extreme jaw tension and clenching, anxiety, and other effects. After completely withdrawing from the antipsychotic drugs, Lewis’ side effects persisted and worsened, and she was eventually diagnosed with a permanent neurological disorder known as Tardive Dyskinesia/Dystonia caused by the antipsychotics she had taken. (internal citations omitted).

II

Given the question before us, we need not discuss at length all the various provisions of the Act 3 ; instead we focus on the provisions of the Act pertinent to the question we must answer. In effect since 1976, the Act created the Health Care Alternative Dispute Resolution Office (“HCADRO”) for the purpose of establishing and administering an arbitration process for medical malpractice claims prior to court action. The Act includes various procedural provisions that a plaintiff pursuing a medical malpractice action must satisfy before being able to prosecute his or her claim in a court of Maryland. See CJ § 3-2A-02 (“Exclusiveness of procedures”). 4 In ⁶⁵⁴ the years following its enactment, the Act has been modified so that today, and at the time of the present case, arbitration may be waived unilaterally by either the plaintiff or the health care provider by filing a written election with the Director of HCADRO indicating the party’s desire to do so.

See CJ § 3-2A-06B. 5 ⁶⁵⁵ Whether or not a plaintiff elects to forego the arbitration process, CJ § 3-2A-04(a)(l)(i) requires the plaintiff, as a condition precedent to proceeding, to file with the Director of the HCADRO his or her medical malpractice claim. CJ § 3-2A-04(a) 6 ; see also Kearney, 416 Md. at 656-57 , 7 A.3d at ⁶⁵⁶ 609-10. Within 90 days of filing that claim, the plaintiff must also file with the Director of HCADRO a certificate of a qualified expert. CJ § 3-2A-04(b). 7 That certificate must contain the qualified expert’s attestations to a “departure from [the] standards of care, and that the departure ... is the proximate cause of the alleged injury.” CJ § 3-2A-04(b)(l)(i)(l). “[W]e have repeatedly held that adherence to the [Act’s] procedures is necessary to maintain a claim that is subject to the [Act].” Kearney, 416 Md. at 655 , 7 A.3d at 608 .

In that regard, we have not hesitated to dismiss a claim because the plaintiff failed to comply with the Act’s administrative filing requirements. See id. at 657-58, 660-61 , 7 A.3d at 610-11 (stating that “[t]he requirement that the claimant or plaintiff file a certificate of qualified expert serves an important purpose, even in cases of unilateral waiver[,]” and dismissing the claim for failure to comply); Carroll, 400 Md. at 181 , 929 A.2d at 28 (“[I]f a proper [certificate has not been filed, the condition precedent to maintain the action has not been met and dismissal is required by the Statute once the allotted time ⁶⁵⁷ period [for filing the certificate] has elapsed.”); see also Tranen v. Aziz, 304 Md. 605, 612 , 500 A.2d 636, 639 (1985) (explaining that the “statutory context of [the Act’s] directives plainly shows that compliance with them is mandatory and that noncompliance mandates dismissal”). The District Court, applying the law of Maryland, dismissed Lewis’s claim for failure to comply with the filing requirements of the Act, precipitating her appeal to the Court of Appeals and, in turn, that court’s question to us.

III

A. A federal court, in a diversity action, must apply the substantive law of the state in which it sits, including that state’s choice-of-law principles. See, e.g., Hood, 395 Md. at 611 , 911 A.2d at 842-43 . For that reason, the Court of Appeals wants to know whether, if Lewis’s suit was filed in a Maryland state court, the filing requirements of the Act would apply. To answer that question, we must look, first, to Maryland law concerning choice of law.

In that regard, this Court adheres to the doctrine of lex loci delicti. See Hood, 395 Md. at 615 , 911 A.2d at 845 . Under that approach, when a Maryland state court is confronted with multistate tort litigation, that court must apply the law of the place of injury as to all matters of substantive law. Id., 911 A.2d at 845 ; see also White v. King, 244 Md. 348, 352 , 223 A.2d 763, 765 (1966) (“This Court has consistently followed the rule that when an accident occurs in another state[,] substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.”). 8 Procedural matters, however, are always gov ⁶⁵⁸ erned by the law of the forum.

Erie Ins. Exch. v. Heffernan, 399 Md. 598, 632-33 , 925 A.2d 636, 656 (2007) (stating that “substantive law [is] to be determined by the place of wrong, and the procedural law [is] to be determined by the law of the forum”); Hood, 395 Md. at 615 , 911 A.2d at 845 (stating same). The Court of Appeals, in crafting the certified question as it does, recognizes Maryland’s adherence to lex loci delicti. What the certified question does not ask, at least not in so many words, is whether Maryland would apply lex loci delicti in the present case.

In their briefs and at oral argument before this Court, the parties focused their attention on whether the public policy exception to lex loci delicti should be invoked. By so arguing, the parties necessarily assumed that the filing requirement is part of Maryland’s substantive law. We, however, do not make the same assumption. Our choice-of-law rules mandate a threshold determination of whether the Act’s filing requirement is substantive law or a procedural matter.

Heffernan, 399 Md. at 615 , 925 A.2d at 646 . If substantive, lex loci delicti controls and, absent invocation of the public policy exception, a Maryland court would not enforce the Act’s filing requirements. If, however, the filing requirements are procedural, a Maryland court would require compliance. 9 ⁶⁵⁹ B. To resolve the substantive-procedural dichotomy for choice-of-law purposes, we look first to our cases in which we have applied the doctrine of lex loci delicti. Our research has not uncovered a single case in which the doctrine has been applied to a provision of law similar to that at issue in the case before us.

The cases we discuss below, however, reveal that the Act’s filing requirements are distinguishable from the various provisions of law that we have treated as involving matters of substantive tort law. We have applied lex loci delicti on prior occasions to enforce the substantive law of the place of injury. We have done so, for example, to enforce the Guest Statutes of other jurisdictions. In White , the plaintiff brought a tort claim in Maryland to recover for injuries resulting from a car accident that occurred in Michigan. 244 Md. at 351 , 223 A.2d at 765 .

Michigan’s Guest Statute at the time limited an automobile passenger’s ability to recover damages from the driver for injuries to situations involving intentional misconduct or gross negligence. Id, 223 A.2d at 765 . We applied lex loci delicti and held that Michigan’s Guest Statute applied, and, therefore, the question of whether the accident was caused by gross negligence should have been submitted to the jury. Id. at 362 , 223 A.2d at 771 .

We also have applied the doctrine to cases involving claims for loss of consortium. In Harford Mut. Ins. Co. v. Bruchey, 248 Md. 669 , 238 A.2d 115 (1968), Mr. and Mrs. Bruchey, both residents of Maryland, were injured in a car accident while traveling together in Virginia.

Id. at 670 , 238 A.2d at 115 . In subsequent litigation brought in the Circuit Court for Harford County, Mr. Bruchey sought to recover for loss of consortium as a result of his wife’s injuries. Id. at 670-71 , 238 A.2d at 115-16 . Virginia law at that time prohibited a husband from recovering for loss of consortium.

Id, 238 A.2d at 115-16 . Following lex loci delicti, we held that Virginia’s law “defeat[ed] [Mr. Bruchey’s] right to recover for loss of consor ⁶⁶⁰ tium[,]” even though under Maryland law such an action would have been permitted. Id. at 676 , 238 A.2d at 119 . Other scenarios in which Maryland Courts have applied lex loci delicti analysis include: (1) whether a Maryland court would enforce a foreign jurisdiction’s ban on wrongful birth actions, see Hood, 395 Md. 608, 622-24 , 911 A.2d at 849-51 (reaffirming this State’s commitment to lex loci delicti and opining that Maryland would invoke the public policy exception to allow a wrongful birth action to proceed in Maryland courts should the law of the state of injury bar such an action); (2) cases involving the elements required to be established in a negligence action, see, e.g., Chambco v. Urban Masonry Corp., 338 Md. 417 421-22 , 659 A.2d 297, 299 (1995) (reversing and remanding judgment in part because trial court erred in applying Maryland law, when lex loci delicti directed application of D.C. law to determine elements of negligence claim); and (3) cases involving whether to apply Maryland’s then-existing doctrine of interspousal immunity to a suit for which lex loci delicti directed application of foreign law, see, e.g., Linton v. Linton, 46 Md.App. 660, 667 , 420 A.2d 1249, 1253 (1980) (allowing an interspousal suit sounding in negligence to proceed because it was permitted by the law of Virginia, the place of injury).

We most recently affirmed our commitment to lex loci delicti in Heffernan, 399 Md. at 620 , 925 A.2d at 649 . In that case, Mr. and Mrs. Heffeman purchased two uninsured/under-insured motorist policies from Erie Insurance Exchange. Id. at 606 , 925 A.2d at 640-41 . Pursuant to those policies, Erie guaranteed to pay to the Heffernans all damages “that the law entitles you” to recover from an uninsured or underinsured motorist. 10 Id. at 609 , 925 A.2d at 641 .

The Heffernans’ daughter was killed in an automobile accident in Delaware, id. at 605 , 925 A.2d at 640 , while traveling as a passenger in an ⁶⁶¹ underinsured motor vehicle, id. at 605-06 , 925 A.2d at 640-41 . During litigation that followed in the United States District Court for the District of Maryland, the court certified to us the following questions of law: 1. In a case involving a claim for benefits pursuant to the uninsured/underinsured provisions of an automobile insurance contract executed in Maryland, where the car accident occurred in Delaware, should Maryland or Delaware law be applied to determine what the claimants would be “entitled to recover” because of the accident? 2. If Delaware law governs the tort issues of this case under lex loci delicti, would Maryland’s public policy exception to that doctrine nonetheless require application of: a.

Maryland’s statutory cap on non-economic damages, ... where the insured and the insurer both reside in Maryland, the covered automobiles are garaged in Maryland, and the contract was executed and administered in Maryland? b. Maryland’s contributory negligence principles? Id. at 604 , 925 A.2d at 639 . With regard to the first question, we determined that the contractual language, “that the law entitles you,” did not raise a question of contractual interpretation, but, instead, of tort liability and damages.

Id. at 619-20 , 925 A.2d at 648 . As such, the question was one involving substantive tort law, for which lex loci delicti applied. Id., 925 A.2d at 648 . We answered both parts of the second question in the negative, holding that the statutory cap on non-economic damages and the principle of contributory negligence were matters of substantive tort law and the respective public policy undergirding each was insufficient to override lex loci delicti.

Id. at 635-36, 925 A.2d at 658 . With respect to the statutory cap on non-economic damages, we rejected the notion raised by Erie that the provision was part of Maryland’s procedural law. Id. at 633 , 925 A.2d at 656 . In doing so, we agreed with the Court of Special Appeals’ determination in Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27, 39 , ⁶⁶² 606 A.2d 295, 300-01 (1992), that the statutory cap is part of the “substantive law of Maryland and ... therefore, inapplicable to this case, which is governed by the substantive law of Delaware.” Heffernan, 399 Md. at 633 , 925 A.2d at 656 .

We found support for our conclusion in § 412 of the Restatement (First) of Conflicts of Laws, which provides that “[t]he measure of damages for a tort is determined by the place of the wrong.” Id. at 633, 925 A.2d at 656 -57 (quoting Restatement (First) of Conflict of Laws § 412 (1934)). We also noted that, in Steger v. Egyud, 219 Md. 331 , 149 A.2d 762 (1959), we relied on § 412 for the proposition that substantive tort law encompasses “the extent of liability and the right to, and measure off,] contribution.” Heffernan, 399 Md. at 633 , 925 A.2d at 656 -57 (quoting Egyud, 219 Md. at 337 , 149 A.2d at 765 ) (internal quotation mark omitted). Accordingly, we held that Delaware law, which did not limit noneconomic damages and followed comparative negligence principles, would govern the Heffeman litigation. Id. at 635-36, 925 A.2d at 658 .

C. With the exception of Heffeman, the cases we have discussed thus far involved provisions of law that were, without question, matters of substantive law, for which lex loci delicti applied. Consequently, we had no reason to scrutinize the substantive-procedural dichotomy. There is, however, one case from the intermediate appellate court that provides guidance on that distinction. That case is Jacobs v. Adams, 66 Md.App. 779 , 505 A.2d 930 (1986).

In Jacobs , the intermediate appellate court had before it three tort cases filed in Maryland circuit courts involving automobile accidents that occurred in D.C. Id. at 783 , 505 A.2d at 932 . Each case presented the same choice-of-law issue: whether Maryland courts should enforce D.C.’s no-fault insurance statute, which barred all civil suits to recover for personal injury resulting from automobile accidents unless, inter alia, medical expenses exceeded $5,000, and, if applied to the plaintiffs’ claims, would bar them. Id., 505 A.2d at 932 . ⁶⁶³ Maryland’s no-fault insurance scheme had no such limitation. Id. at 787 , 505 A.2d at 934 .

To answer that question, the Court of Special Appeals had to decide, among other issues, whether the no-fault insurance provision at issue was substantive, to which lex loci delicti would control, or procedural, and thereby governed by Maryland law. Id. at 790 , 505 A.2d at 936 . The Jacobs Court had this to say in that regard: A logical resolution to this problem was suggested by Professors William Richman and William Reynolds, who said, “[fjorum interest and convenience ... should dictate the classification of an issue as ‘procedural.’ Put differently, if neither the forum’s interest nor judicial convenience is involved, no reason exists to treat the problem as ‘procedural.’ ” W. Richman & W. Reynolds, Understanding Conflict of Laws 116 (1984). We agree.

There is no reason to classify an issue as procedural, and hence controlled by the law of the forum, unless it affects the manner in which the forum administers justice. If the law of the state wherein an accident occurred does not grant the affected parties the right to bring a suit, then there is no need for the application of any procedural laws. It is only after the rights of parties have been established by the laws of the situs that the forum may determine how those rights shall be exercised. Jacobs, 66 Md.App. at 790-91 , 505 A.2d at 936 (emphasis added) (internal footnote omitted).

Persuaded by Professors Richman and Reynold’s reasoning, the Court of Special Appeals held that D.C.’s no-fault insurance law was substantive. Id. at 791 , 505 A.2d at 936 . The court found it dispositive that the law “did not restrict, limit, define, qualify, or otherwise simply modify the cause of action [which would indicate that the provision was one of procedure,] but declared it to be wholly unavailable.” Id., 505 A.2d at 936 . D. From the cases we have discussed, we can reduce the provisions of law to which we have applied lex loci delicti (i.e., ⁶⁶⁴ the provisions of law that we have deemed matters of substantive tort law) to three broad categories.

First, we have applied lex loci delicti to provisions of law that recognize or bar a cause of action. Second, we have applied the doctrine to provisions of law which define the elements of a claim. And third, we have applied the doctrine to provisions of law that limit or prescribe the way in which damages are calculated. In each situation, the provision of law is linked