Nance v. Gordon

WOODWARD, J. Appellant, Donnell Nance, filed a medical malpractice action under the Health Care Malpractice Claims Act (“the Act”), Md.Code (1974, 2006 Repl.Vol., 2012 Supp.) §§ 3-2A-01 to 3-2A-10 of the Courts and Judicial Proceedings Article (“CJP I”), against appellees, David A. Gordon, M.D., Larry Waskow, P.A., and Chesapeake Urology Associates, P.A. (“Chesapeake”). Dr. Gordon is a board certified urologist; Waskow is a urology physician’s assistant; and Chesapeake is the professional association employing both Dr. Gordon and Waskow. In his statement of claim, appellant asserted that appellees’ negligent care in 2005 was the proximate cause of his subsequent kidney failure. 1 Pursuant to § 3-2A-04(b) of the Act, appellant filed a Certificate of Qualified Expert from Stanley ²⁸ C. Jordan, M.D., who attested that appellees deviated from the standard of care by “[flailing to include nephritis on the differential diagnosis for [appellant] when he presented to the emergency department” complaining of blood in his urine in July of 2005. 2 In response, appellees filed a Motion to Dismiss or, in the Alternative, for Summary Judgment and argued that Dr. Jordan was not a “qualified expert” under the Act, because Dr. Jordan, a board certified nephrologist, was not in a “related specialty” to appellees.

At a hearing before the Circuit Court for Baltimore City, the court found that Dr. Jordan “was not qualified to say what a urologist was able to do,” and granted summary judgment in favor of appellees. The circuit court also denied appellant’s subsequent motion for reconsideration. On appeal, appellant presents two questions for our review, which we have rephrased: 3 1. Did the circuit court err when it concluded that appellant’s medical expert was not qualified to testify under the Act? 2.

If the circuit court did not err in concluding that appellant’s medical expert was not qualified, did the circuit court err in granting summary judgment to appellees? For the reasons we will explain, we answer the first question in the affirmative, and thus reverse the judgment of the ²⁹ circuit court and remand the case to that court for further proceedings. Consequently, we do not reach appellant’s second question. BACKGROUND On June 2, 2005, appellant presented to (ie., arrived at) the emergency department at Sinai Hospital in Baltimore, complaining of blood in his urine.

Urinalysis taken at the hospital verified that appellant had gross hematuria (blood in urine), as well as proteinuria (protein in urine). Following these test results, appellant was prescribed antibiotics for what was diagnosed as a urinary tract infection and sent home. 4 On July 27, 2005, appellant, accompanied by his mother, again presented to the Sinai Hospital Emergency Department, complaining about blood in his urine. This time, appellant complained further of a fever, sore throat, and right flank pain. Waskow examined appellant.

Waskow then called and spoke with Dr. Gordon to review appellant’s presentation, and to discuss Waskow’s examination, evaluation, and treatment plan. However, no physician ever conducted an in-person evaluation or examination of appellant for his symptoms that day. Again, appellant was sent home with antibiotics to treat a urinary tract infection. Nearly two years later, on May 28, 2007, appellant presented to the Sinai Hospital Emergency Department, complaining that he was spitting up blood.

Tests conducted at the hospital revealed that appellant’s kidneys were no longer functioning. Physicians present noted that appellant had been doing “reasonably well” up until a few weeks before his May 2007 presentation, when he began experiencing flu-like symptoms. A renal biopsy revealed that appellant had late-stage IgA nephropathy, a severe kidney disease that requires appellant to undergo hemodialysis three times a week. Doctors concluded that the kidney disease had “progressed too long ³⁰ without treatment,” and that the failure of appellant’s kidneys was irreversible.

On April 17, 2009, appellant filed a Statement of Claim with the Health Care Alternative Dispute Resolution Office (“HCA-DRO”). In addition to his Statement of Claim, appellant also filed a Waiver of Arbitration. The HCADRO issued an Order of Transfer from its office to the circuit court on April 21, 2009. Appellant then filed a complaint in the circuit court on May 8, 2009.

Also accompanying appellant’s April 17, 2009 Statement of Claim was Dr. Jordan’s Certificate and attached report. Dr. Jordan is board certified in pediatric nephrology, pediatrics, and diagnostic laboratory immunology. In his Certificate, Dr. Jordan opined that appellees (among others) “departed from the standards of practice among members of the same health professions with similar training and experience situated in the same or similar communities” when they treated appellant in June and July 2005. In his report, which was attached to the Certificate, Dr. Jordan specifically stated that, in his professional opinion, appellees (among others) committed malpractice by “[flailing to include nephritis on the differential diagnosis for [appellant]” when he presented to the Sinai emergency room in June and July 2005.

Dr. Jordan further opined that these deviations from standards of care proximately caused appellant’s injuries and damages. Following the close of discovery, on July 30, 2010, appellees filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. In their motion, appellees argued, as relevant to this appeal, that Dr. Jordan was not a “qualified” expert, because he is not a board-certified urologist, and because he did not have relevant clinical or teaching experience in a “related field of health care” to urology. After appellant filed an opposition and appellees a reply, the circuit court held a hearing on appellees’ motion on August 23, 2010.

At the conclusion of the hearing, the court granted appellees’ motion, ruling that Dr. Jordan “was not qualified to say what a urologist was able to do.” The following day, the circuit court ³¹ issued an order granting summary judgment in favor of appellees. On September 1, 2010, appellant filed a motion for reconsideration of the circuit court’s order. The circuit court held a hearing on the motion on November 22, 2010, and denied appellant’s motion. On the same day, the court issued a written order denying the motion for reconsideration and entering a final judgment in favor of appellees.

A timely appeal followed. Additional facts will be set forth below as necessary to resolve the issues presented. DISCUSSION The instant appeal involves appellant’s claim for medical malpractice under the Act, CJP I §§ 3-2A-01 to 3-2A-10. Appellant asserts that the appellees breached the applicable standard of care by fading to include nephritis in a differential diagnosis for appellant when he presented himself to appellees.

Because appellant’s claims are based on breach of the standard of care, appellant was required to file a “certificate of qualified expert” (“Certificate”) 5 within 90 days of the date of filing his claim. See CJP I §§ 3-2A-04(b)(l). In appellant’s claim for medical malpractice, as in all claims “filed on or after January 1, 2005,” the Certificate is only proper if it complies with the further, specific requirements of section 3-2A-02(c)(2). Subparagraph 3-2A-02(c)(2)(ii) of the Act provides: 1.

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: ³² 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. CJP I § 3-2A-02(c)(2)(ii) (emphasis added). “[I]t 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.” Hinebaugh v. Garrett Cnty. Mem’l Hosp., 207 Md.App. 1, 20 , 51 A.3d 673 (2012).

As the Act explains in subsubparagraphs 1A, IB, and 2B, an expert need only satisfy certain professional qualifications in “the same or a related specialty [or field]” to submit a valid Certificate (subject to the remaining procedural requirements). CJP I §§ 3-2A-02(c)(2)(ii)1A, -IB, -2B (emphasis added). 6 ³³ Appellant contends that “[t]he Circuit Court erred ... because Dr. Jordan was qualified under the Health Care ³⁴ Malpractice Claims Act to express the opinion that [appellees] violated the standard of care in treating [appellant].” Appellant asserts that “specializing in the same medical field [as the defendant(s) in a medical malpractice suit] is not required” in order for an expert like Dr. Jordan to be qualified. Appellant then argues that “Dr. Jordan’s Certificate of Qualified Expert, supporting Report, and deposition testimony established that nephrology and urology are ‘related’ specialties” in the context of this case, because “[n]ephrology and urology share the kidney as a common focus.” In response, appellees argue that “[t]he plain language of the [Act], and this Court’s application of that language in DeMuth v. Strong, 205 Md.App. 521 , 45 A.3d 898 (2012), and Hinebaugh,[ 7 ] ... demonstrate that, for Dr. Jordan’s certificate to have been valid, Appellant[] bore the burden of showing that Dr. Jordan’s specialty, pediatric nephrology, overlapped with the Appellees’ specialty, urology, with regard to the diagnosis of nephritis in the emergency room setting.” Appellees claim that “[t]he evidence before [the circuit court] showed that no such overlap existed,” because nephrologists “diagnose and treat nephritis,” while urologists do not. The Court of Appeals previously explained in Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007), that [t]he determination of whether a Certificate and report are satisfactory, like the determination of whether a complaint sufficiently states a legally cognizable claim, is a determination to be made as a matter of law.

As such, the standard for determining whether a Certificate or report is legally sufficient is the same as determining whether a complaint is legally sufficient, i.e., dismissal is only appropriate if, after assuming the truth of the assertions in the Certificate and report, and all permissible inferences emanating therefrom, ³⁵ the requirements set forth in the Health Care Malpractice Claims Statute are not satisfied. Id. at 180 n. 11, 929 A.2d 19 . “In sum, because we must deem the facts to be true, our task is confined to determining whether the trial court was legally correct in its decision to dismiss.” Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802 (2005). The dispute between the parties in the instant appeal centers on whether nephrology and urology are “related” fields under the circumstances of this case, as that term is used in subsubparagraphs §§ 3 -2A-02(c)(2)(ii) 1A and IB of the Act. “ ‘The meaning of statutory text is an issue we review as a matter of law' — ie., de novo.” DeMuth, 205 Md.App. at 535 , 45 A.3d 898 (quoting Univ. of Md. Med. Sys.

Corp. v. Waldt, 411 Md. 207, 222 , 983 A.2d 112 (2009)). In carrying out this review, we are guided by the following well-established principles of statutory construction: When undertaking an exercise in statutory interpretation, as in the present case, the goal is to “ascertain and effectuate the intent of the Legislature.” In attempting to discern the intent of the Legislature, courts “look first to the plain language of the statute, giving it its natural and ordinary meaning.” If the language of the statute is clear and unambiguous, courts will give effect to the plain meaning of the statute and no further sleuthing of statutory interpretation is needed. If the sense of the statute is either unclear or ambiguous under the plain meaning magnifying glass, courts will look for other clues — e.g., the construction of the statute, the relation of the statute to other laws in a legislative scheme, the legislative history, and the general purpose and intent of the statute. It is well-settled that a court must read a statute in the context of its statutory scheme, ensuring that “no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory,” and that any illogical or unreasonable interpretation is avoided. ³⁶ Id.

(quoting Breslin, 421 Md. at 286-87, 26 A.3d 878 (citations omitted)). Because “[t]he word ‘related’ is not defined in the Act,” we have looked to dictionary definitions of the word and concluded that, as used throughout CJP I § 3-2A-02(c)(2), “related” means “ ‘being connected; associated.’ ” Id. at 536, 45 A.3d 898 (quoting American Heritage Dictionary 1473 (4th ed.2006)). In DeMuth , the patient presented to the defendant, a board certified orthopedic surgeon, in 2005, complaining of pain in his knees. Id. at 525 , 45 A.3d 898 .

On February 14, 2008, with the patient’s consent, the defendant performed total knee replacement surgery on the patient’s left knee. Id. at 526 , 45 A.3d 898 . Immediately after this surgery, the patient complained of numbness and tingling in his left foot; the defendant’s postoperative examination did not show any signs of a decrease in blood flow to the left leg. Id.

The defendant diagnosed the patient’s postoperative condition as neuropraxia, a non-serious condition that was not vascular (ie., related to blood flow) in nature. Id. The next day, after the patient was unable to move or bend upward his left toes, the defendant again reviewed the patient’s notes and, again, concluded that this condition was neuropraxia. Id. at 526-27 , 45 A.3d 898 .

Ultimately, after the patient’s condition worsened, his left leg was amputated above the knee. Id. at 529 , 45 A.3d 898 . At the patient’s trial for malpractice against the defendant, the patient called a vascular surgeon to testify that the defendant, as an orthopedic surgeon, breached the standard of care in several discreet and specific ways following the February 14 surgery. Id. at 529-31 , 45 A.3d 898 .

The trial court permitted the vascular surgeon’s testimony. Id. at 532 , 45 A.3d 898 . On appeal, this Court affirmed the decision of the trial court. In a case of first impression, we were faced with the issue of interpreting the meaning of “related” as used in section 3-2A-02(c)(2) of the Act.

Id. at 536-37 , 45 A.3d 898 . Judge Deborah Eyler, writing for this Court, stated that the word “related” in the sense of associated or connected, as used to modify “field of health care” and board certification “specialty” in subsubparagraphs 1A and IB, respective ³⁷ ly, embraces fields of health care and board certification specialties that, in the context of the treatment or procedure in a given case, overlap. Id. at 544 , 45 A.3d 898 . The DeMuth Court adopted significant portions of the reasoning from the federal district court’s opinion in Jones v. Bagalkotakar, 750 F.Supp.2d 574 (D.Md. 2010).

See 205 Md.App. at 542-44 , 45 A.3d 898 . Specifically, we highlighted the passage of the Jones decision explaining that, [i]f the procedure is one which both healthcare providers have experience with and the standard of care is purported to be similar, then the expert’s qualifications satisfy the requirements of the Act. If a procedure is common to two specialties, an inference of relation is created between the two specialties. However, if the procedure is one [with] which the purported expert does not have experience or performs with a meaningfully different standard of care, then the expert does not qualify under the Act. 205 Md.App. at 543-44 , 45 A.3d 898 (quoting Jones, 750 F.Supp.2d at 581 ) (second alteration in original).

Applying the above principles to the facts of DeMuth , we noted that the vascular surgeon was not being asked to give and did not give standard of care testimony about the performance of knee replacement surgery. Id. at 545 . Instead, the vascular surgeon’s “opinions focused solely on the postoperative care and treatment of patients who have undergone that surgery.” Id. Because the central standard of care issue in the case was “the proper postoperative diagnosis and treatment of possible vascular complications of orthopedic surgery,” we concluded that there was an “overlap” between the specialties of vascular and orthopedic surgery, and therefore, vascular surgery and orthopedic surgery were “related specialties]” under the board certification requirement in CJP I § 3-2A2(c)(2)(ii)1B.

Id. at 546 (alteration in original). Later, in Hinebaugh, 207 Md.App. at 22 , 51 A.3d 673 we stated that DeMuth stands for the proposition that, where medical specialties overlap in the context of a particular ³⁸ treatment or procedure, “there also is an overlap of knowledge of the treatments and procedures among those health care providers certified in either specialty.” For example, where the treatment rendered is performed by both specialists and therefore is within the overlapping expertise of two board specialty areas, so that both board certified specialists should be equally knowledgeable and competent to testify about the prevailing standard of care for a health care provider board certified in either specialty, the specialties are “related”.... Id. at 28, 51 A.3d 673 . In Hinebaugh , the patient-appellant was hit in the face, absorbing injuries to his jaw and left cheek.

Id. at 6 , 51 A.3d 673 . The appellant was examined by a family medicine doctor, who ordered x-rays to the appellant’s facial bones. Id. Two radiologists evaluated these x-rays and concluded that there were no abnormalities to the appellant’s cheek bones.

Id. The appellant subsequently reported increasing pain and numbness in the cheek, and was seen by a second family medicine doctor, who ordered a CT scan. Id. at 6-7 , 51 A.3d 673 . Upon reading the CT scan, the second family medicine doctor diagnosed the appellant with a supraorbital fracture.

Id. at 7 , 51 A.3d 673 . The appellant then filed suit under the Act against the first family medicine doctor and the radiologists, and sought to qualify a doctor of dental surgery, who specialized in Oral and Maxillofacial Surgery (OMS), as an expert. Id. at 7-8 , 51 A.3d 673 . The OMS dentist attested that the first family medicine doctor and the radiologists breached the standard of care by failing to diagnose the appellant’s condition (a supraorbital fracture) in a timely fashion.

Id. at 8 , 51 A.3d 673 . On appeal, we held that the expert whom the appellant offered was not qualified, because “[ujnder circumstances such as those in this case, the areas of knowledge and experience of