Nelson v. Debbas

SHARER, J. Appellants, Thelma Nelson, Individually, and as Personal Representative of the Estate of Madeline V. Lyons, and others, filed a medical negligence action against appellees, Elie G. Debbas, M.D., and Fort Washington Hospital, pursuant to the Maryland Health Care Malpractice Claims Act. 1 On motions of appellees, the Circuit Court for Prince George’s ¹⁹⁷ County dismissed the action against Elie G. Debbas, M.D., and granted summary judgment in favor of Fort Washington Hospital. Appellants have raised for our review two questions, which we have recast as follows: 2 1. Did the trial court err in dismissing appellants’ medical negligence suit on the ground that appellants failed to file a Certificate of Qualified Expert, as required by the Maryland Health Care Malpractice Claims Act? 2. Was the evidence sufficient to create a dispute of material fact on the question of whether there was an agency relationship between the attending physicians, who administered care to the Decedent, and the Hospital?

For the reasons that follow, we shall reverse the orders of the circuit court. FACTUAL BACKGROUND 3 On May 10, 2000, Madeline V. Lyons (“Decedent”) visited the emergency room at Fort Washington Hospital (“the Hospital”), complaining of weakness and fatigue. At the Hospital, she was examined and treated by Dr. Hengameh N. Mesbahi, ¹⁹⁸ who advised Decedent to follow up with her primary care physician, Dr. Michael G. Sidarous. On May 12, 2000, Decedent presented to Dr. Sidarous with symptoms similar to those she complained of at the Hospital on May 10.

Dr. Sidarous diagnosed Decedent with mild congestive heart failure, and prescribed medication. He further advised her to return to the Hospital should her symptoms worsen. On May 16, 2000, Decedent returned to the Hospital, complaining of excruciating abdominal pain. On both May 10 and May 16, the Hospital required that Decedent complete a consent form, entitled “Conditions of Admission to Emergency Department of Hospital.” The form contained the following language: MEDICAL CONSENT: I hereby voluntarily consent to such diagnostic procedures and hospital care and to such therapeutic treatment by doctors of the medical staff of Fort Washington Hospital, which, in their judgment becomes necessary while I am an Emergency Department patient or an inpatient in said hospital.

Upon her completion of the medical consent on May 16, Decedent was admitted to the Hospital’s emergency room. Decedent was first seen by Patrick W. Daly, M.D., an emergency room physician and Director of the Hospital’s Emergency Medical Department, in the emergency room shortly after 9:00 a.m. Dr. Daly examined Decedent and ordered certain diagnostic tests, including x-rays. At about 10:45 a.m., Decedent was diagnosed as having free air under the left diaphragm.

About one hour later, Dr. Daly requested a surgical consult with Dr. Debbas, Chief of Surgery at the Hospital (who was also then President of the Medical Staff). Dr. Debbas and Dr. Sidarous, Decedent’s personal physician, suggested that she undergo a CT scan. The scan, performed promptly, revealed a condition requiring early surgical intervention. At 1:00 p.m., on the order of Dr. Debbas and Dr. Sidarous, Decedent began what would become three hours of blood ¹⁹⁹ transfusion.

Between the hours of approximately 12:45 p.m. and 6:00 p.m., no constant and ongoing physical monitoring of Decedent occurred. At about 6:30 p.m. Decedent was admitted to surgery and the administration of anesthesia was begun. At 8:05 p.m., while in surgery, Decedent went into cardiac arrest.

Attempts to resuscitate her were unsuccessful, and she died at 9:01 p.m.' 1 Appellants assert that the delay from the time of discovery of Decedent’s condition until the surgery constituted medical negligence, which was the proximate cause of Decedent’s death. PROCEDURAL HISTORY On April 8, 2002, appellants filed a Statement of Claim against Dr. Debbas and the Hospital with the Health Claims Arbitration Office (HCAO), pursuant to the Maryland Health Care Malpractice Claims Act (“the Act”), Md.Code. Ann., Cts. and Jud. Proc. §§ 3-2A-01 to 3-2A-09 (2002 Repl.

Vol & 2004 Supp.). Accompanying the Statement of Claim was a Certificate of Qualified Expert, executed by Ann M. Gordon, M.D., attesting to the appellees’ deviations from the appropriate standard of medical care. Appellants filed an Election to Waive Arbitration pursuant to § 3-2A-06B of the Act, and, on April 30, 2002, filed the instant action in the Circuit Court for Prince George’s County. The litigation proceeded on appellants’ subsequently-filed first amended complaint.

Dr. Debbas filed a motion to dismiss, predicated on the single assertion that appellants had failed to file an appropriate Certificate of Qualified Expert. The motion to dismiss was granted by the court on August 29, 2003. 4 5 The Hospital filed a motion for summary judgment, initially on the basis of the allegedly defective certificate, but later ²⁰⁰ supplemented by the argument that the record did not support a finding of negligence by the Hospital. That later argument raises the issue of apparent authority of the treating physicians and potential vicarious liability. The circuit granted the motion for summary judgment on August 29, 2003.

Appellants filed appropriate motions to reconsider, all of which were denied by the circuit court on October 2, 2003. Appellants filed their timely notice of appeal on October 27, 2003. DISCUSSION I. Did the trial court err in dismissing appellants’ medical negligence suit on the ground that appellants failed to file a Certificate of Qualified Expert, as required by the Maryland Health Care Malpractice Claims Act? We hold that appellants’ Certificate of Qualified Expert satisfies the Act’s requirements and shall reverse the trial court’s grant of Dr. Debbas’s motion to dismiss. 6 We also ²⁰¹ hold that the record supports a finding that there exists a dispute of material fact relating to the apparent authority of the physicians vis-a-vis the Hospital, and the potential of vicarious liability of the Hospital.

Standard of Review In reviewing the circuit court’s dismissal of appellants’ claim against Dr. Debbas, we shall assume the truth of the well-pleaded facts in the complaint and the inferences which we may reasonably draw from such facts. Parker v. Kowalsky & Hirschhorn, P.A., 124 Md.App. 447, 458 , 722 A.2d 441 (1999) (citing Simms v. Constantine, 113 Md.App. 291, 296 , 688 A.2d 1 (1997)). We “must [also] consider well-pleaded facts and allegations in the light most favorable to the appellant.” Id. at 458, 722 A.2d 441 (alterations added)(citing Berman v. Karvounis, 308 Md. 259, 264 , 518 A.2d 726 (1987)). As a result, “[dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.” Simms, supra, 113 Md.App. at 296 , 688 A.2d 1 (alterations added) (quoting Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993)).

Certifícate of Qualified Expert Appellees, in their motions to dismiss, do not challenge the adequacy of the averments in appellants’ first amended complaint relating to allegations of medical negligence. Rather, they attack the procedural underpinnings of the complaint— that the Certificate of Qualified Expert was defective. Therefore, we shall first address the validity of appellants’ Certificate of Qualified Expert which, based upon its order of dismissal, the circuit court found to be inadequate. ²⁰² The Act requires arbitration as a condition precedent to the initiation of a medical negligence suit in the circuit court. §§ 3-2A-02(a), 3-2A-04(a)(l) to 3-2A-09; see also Manzano v. S. Md. Hosp. Inc., 347 Md. 17, 22-23 , 698 A.2d 531 (1997).

As part of the arbitration process, the claimant must file a Certificate of Qualified Expert within 90 days of the filing of the statement of claim. (The time for filing may be extended upon a showing of good cause). § 3-2A-04(b)(5); McCready Mem’l Hosp. v. Hauser, 330 Md. 497, 501 , 624 A.2d 1249 (1993). As to the Certificate, § 3-2A-04(b) specifies: Filing and Service of Certificate of Qualified Expert— Unless the sole issue in the claim is lack of informed consent: (l)(i) Except as provided in subparagraph (ii) of this paragraph, a claim filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant 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[.] (Emphasis added.) The Act additionally provides that “discovery is available as to the basis of the certificate.” § 3-2A-04(b)(3). We have recently said, in D’Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631, 645 , 853 A.2d 813 (2004): [T]he obvious purpose of the certificate requirement reflects the General Assembly’s desire to weed out, shortly after suit is filed, nonmeritorious medical malpractice claims.

The certificate of a qualified expert is an “indispensable step” in the arbitration process. McCready Mem’l Hosp. [v. Hauser], 330 Md. [497] (1993). It is so important that, if the certificate requirement is not followed, a circuit court action will be dismissed sua sponte. Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982).

And, failure to file a proper certificate is tantamount to not having filed a certificate at all. See Watts v. King, 143 Md.App. 293, 307-310 , 794 A.2d 723 (2002). ²⁰³ Appellants filed their Statement of Claim and Certificate of Qualified Expert simultaneously on April 8, 2002. Ann M. Gordon, M.D., appellants’ certifying expert, states I, Ann M. Gordon, M.D., hereby certify ... it is my opinion that Michael G. Sidarous, M.D., Elie G. Debbas, M.D., and the staff at Fort, Washington Hospital deviated from applicable standards of medical care in connection with their care and treatment of Madeline V. Lyons. It is my further opinion that the deviations from the standard of care were the proximate cause of the death of Madeline V. Lyons.

(Emphasis added.) Dr. Gordon’s certificate was timely filed, attested specifically to appellees’ (and others’) deviations from the standard of medical care, and opined that such deviations were the proximate cause of Decedent’s death. 7 Section 3-2A-04(b) mandates nothing more for full compliance. In the form submitted, appellant’s Certifícate of Qualified Expert satisfies the requirements of the Act. Subsequent to the filing of the certificate, Dr. Gordon was deposed. 8 Based on answers given by her in discovery, appellees assert that Dr. Gordon subsequently contradicted the Certificate in deposition testimony and, as a result, rendered it invalid. Appellees rely on the following dialogue during examination by Dr. Sidarous’s counsel: Q. Based on your review of the materials, have you formed opinions that you hold with[in] reasonable medical probabili ²⁰⁴ ty as to whether any health care provider defendant deviated from [the] standard of care in their care and treatment of Madeline Lyons?

A. Yes, I do. Q. Tell me first which health care provider you intend to render opinions about. A. Dr. Sidarous. Q. Have you formed any opinions with regard to any other health care providers beyond him?

A. No. Later in the deposition, counsel for Dr. Debbas asked Dr. Gordon Q. Dr. Gordon, I’ll be very short. I represent Dr. Debbas, the surgeon in this case, and your counsel was kind enough to say at the outset of your deposition you don’t intend to render any opinions regarding my client, Dr. Debbas, is that correct? A. That’s correct. I believe that there will be other medi- ■■ coil experts who will be addressing those opinions and . issues.

(Emphasis added.) Appellees, based on those answers by Dr. Gordon, posit that appellants’ compliance with the certificate requirement “was illusory because Dr. Gordon testified that she had not formed any opinions against Dr. Debbas or any other health care providers beyond Dr. Sidarous. This fundamental inconsistency renders the Appellants’ Certificate substantively deficient.” After Dr. Gordon’s deposition, appellants, in an effort to recenter her opinions, filed an affidavit in which Dr. Gordon averred, under oath: I, Ann M. Gordon, M.D., hereby swear and affirm under the penalties of perjury and upon personal knowledge that: 1. I am over 18 years of age and competent to testify to the contents contained herein. ²⁰⁵ 2. I have reviewed the entire medical record of Madeline V. Lyons relating to her death on May 16, 2000, including, but not limited to, the records from Ft.

Washington Hospital for May 10, 2002, office notes of Dr. Michael G. Sidarous, M.D., records from Ft. Washington Hospital for May 16, 2000, and the Death Certificate and the Autopsy Report of Madeline V. Lyons. 8. Based upon my review of the entire medical record of Madeline V. Lyons from May 10, 2000 until her death, I executed a Certificate of Qualified Expert on behalf of the Plaintiffs with regard to the breaches in the standard of care by the medical staff, including physicians, at Fort Washington Hospital, Dr. Michael G. Sidarous, and Dr. Elias G. Debbas. 4. At the time I executed the Certificate of Qualified Expert, it was my understanding that the medical “staff’ at Fort Washington Hospital included Dr. Daly. 5.

While I have opinions with regard to the breaches in the standard of care by each of the physicians and medical staff referenced above, counsel for Plaintiff has not asked me to testify at trial with regard to all of those opinions. Counsel for Plaintiff has requested that I testify only as to the breaches in the standard of care by Dr. Michael G. Sidarous. 6. At the time of my deposition, it was my understanding that I was only to testify with regard to the opinions that I will be offering at trial, not the opinions that I have with regard to the breaches in the standard of care by other named Defendants, including, Dr. Elias G. Debbas, Dr. Patrick W. Daly and the rest of the medical staff at- Fort Washington Hospital. 7. It is still my opinion today that each of the named Defendants, including Dr. Michael G. Sidarous, Dr. Elias G. Debbas, and Dr. Patrick W. Daly, breached the applicable standard of care and that those breaches in the standard of care were the proximate cause of the death of Madeline V. Lyons. ²⁰⁶ Appellees counter that the latent deficiency of the certificate cannot be cured by the affidavit.

(We shall discuss the sham affidavit aspect, infra). Certificates of Qualified Expert have been rejected as being non-compliant with the Act on several grounds. See Witte v. Azarian, 369 Md. 518 , 801 A.2d 160 (2002)(the “expert” is not qualified to render an opinion); McCready Memorial Hosp., supra (certificate not timely filed); D'Angelo v. St. Agnes Healthcare, Inc., supra; Watts v. King, 143 Md.App. 293 , 794 A.2d 723 (2002) (certificate defective on its face). The question before us is, therefore, whether Dr. Gordon’s deposition testimony undermined her certificate, rendering it defective.

Dr. Gordon’s certificate was all-inclusive. It asserted deviation from the standard of care by Dr. Debbas, Dr. Sidarous and “the staff’ of the Hospital. Only later, at her deposition, did she appear to narrow her focus. Taken in a vacuum, that conclusion might appear to be reasonable.

However, a fair reading of her deposition leads to a conclusion that she did not disavow her certificate opinion. Rather she emphasized that she had been retained to testify as an expert at trial only with respect to the deviation by Dr. Sidarous, and that other experts would offer opinions relating to Dr. Daly, Dr. Ebbas, and the Hospital staff. The fact that appellants had retained the services of other experts (Drs. Gouge and Longmore) to give opinions as to the breaches of the standard of care by other defendants is significant.

Appellees were not in the dark as to those experts — their names were disclosed in discovery and they were, in fact, deposed by appellees. The record does not support a conclusion that appellants’ case would rise or fall on the trial testimony of Dr. Gordon. We find nothing in the Act, or in the case law, that compels us to hold that the certifying physician must also be prepared to testify at trial as to the breach of the standard of every named defendant. It is not uncommon, in fact, for the certifying physician not to