Powell v. Breslin

J. FREDERICK SHARER, J. (Retired, Specially Assigned). Appellants, the adult children of decedent, Jackie D. Powell, challenge the February 9, 2007 Amended Order of the Circuit Court for Baltimore City granting summary judgment to appellees, Dr. Jeffrey R. Breslin and Kremen, Breslin & Fraiman, P.A. The circuit court subsequently denied appellants’ Motion for Reconsideration by Order of August 10, 2007, and appellants’ Motion to Alter or Amend the Judgment Nunc Pro Tunc by Order of March 11, 2008. Appellants noted this timely appeal after the entry of final judgment as to the remaining parties.

Appellants present a single question for our review, which we have slightly rephrased: In a medical negligence case, does the provision of Md. Code, Courts and Judicial Proceedings § 3-2A- ³⁴³ 04(b)(l)(i)(l), requiring dismissal without prejudice if the plaintiff fails to file a certificate of a qualified expert, apply where the plaintiff files a certificate signed by a person who does not meet the qualifications set forth in CJ § 3-2A-02(e)(2)(ii)? 1 For the reasons set forth below, we shall hold that, in such circumstance, the appropriate sanction is dismissal without prejudice, not summary judgment. FACTUAL and PROCEDURAL HISTORY On October 31, 2002, the decedent, Jackie Powell, was admitted to Good Samaritan Hospital to undergo a hepatore-nal arterial bypass procedure to be performed by Dr. Breslin. Dr. Monford Wolf administered an epidural anesthetic to Mr. Powell during his surgery. Mr. Powell subsequently developed an epidural hematoma that injured his spinal cord, paralyzing him from the waist down.

Appellants allege that Mr. Powell’s injury, and the resulting paralysis, eventually led to his death on March 8, 2004. Appellants further allege that the defendant health care providers were negligent in failing to recognize and treat the epidural hematoma in a timely manner. Appellants initially filed a claim against Dr. Wolf, his professional association, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital, with the Health Claims Arbitration Office (HCAO) on July 30, 2004. 2 In conjunction with their claim, appellants also filed a Certificate of Qualified Expert (“certificate”) 3 with HCAO and served notice of their intent to waive arbitration pursuant to Md.Code (2006 Repl. ³⁴⁴ Vol.), Courts & Judicial Proceedings (“CJ”) § 3-2A-06B. Pursuant to the waiver, the HCAO transferred the case to the Circuit Court for Baltimore City by Order dated September 27, 2004.

On October 20, 2004, appellants filed their initial two-count complaint, asserting a survival claim and a wrongful death action against Dr. Wolf, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital. Appellants subsequently amended their complaint on November 24, 2004, to add two negligence counts against Good Samaritan. On August 25, 2005, appellants amended their complaint a second time, naming Dr. Breslin and his professional association, Drs. Kremen, Breslin & Fraiman, P.A., as defendants in the case.

In conjunction with their Second Amended Complaint, appellants filed a certificate and a report signed by a board certified anesthesiologist, Dr. Ronald E. Burt. Appellants again served notice of their intention to waive arbitration before the HCAO, and jurisdiction over the Amended Complaint was transferred to the circuit court by Order dated August 8, 2005. After some scheduling difficulties, a deposition of Dr. Burt was finally held on September 6, 2006. Dr. Burt testified that he had no clinical experience in vascular surgery, had never taught in the field of vascular surgery, and did not hold himself out as an expert in vascular surgery.

His only professed area of expertise was anesthesiology. He further testified that he was unable to address the applicable standard of care for vascular surgeons, or what training or experience vascular surgeons might have that would be relevant to diagnosing or treating an epidural hematoma. As a result of those revelations, Dr. Breslin and his professional association filed a Motion to Dismiss or in the alternative for Summary Judgment on October 26, 2006. The circuit court heard oral arguments on the motion from the remaining parties on January 22, 2007. 4 On January 24, 2007, the court ³⁴⁵ issued a Memorandum Opinion and Order granting Dr. Bres-lin’s Motion for Summary Judgment. 5 Appellants filed a Motion to Reconsider on February 5, 2007, arguing that the proper remedy for disqualification of their certificate was dismissal without prejudice, not summary judgment.

On August 10, 2007, the court issued an Order summarily denying appellants’ Motion. On October 29, 2007, appellants filed a Motion to Alter or Amend Judgment Nunc Pro Tunc. 6 The court heard oral argument on the motion on February 7, 2008, and denied appellants’ Motion by a Memorandum of Decision on March 11, 2008. Upon resolution of all claims in the case through settlement with Dr. Wolf and Hunt Valley Anesthesia Associates, P.A., and their subsequent dismissal from the case, appellants filed the current appeal on March 27, 2009. 7 STANDARD of REVIEW This Court reviews a decision of a circuit court granting summary judgment utilizing a de novo standard of review. Harford County v. Saks Fifth Ave.

Distrib. Co., 399 Md. 73, 82 , 923 A.2d 1 (2007); Zitterbart v. Am. Suzuki Motor Corp., 182 Md.App. 495, 501-02 , 958 A.2d 372 (citing Crickenberger v. Hyundai Motor Am., 404 Md. 37, 45 , 944 A.2d 1136 (2008)), cert, denied, 406 Md. 581 , 961 A.2d 555 (2008). When deciding ³⁴⁶ a motion for summary judgment, a trial court may “enter judgment in favor of or against the moving party if the motion and response show there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2 — 501(f); see Ross v. State Bd. of Elections, 387 Md. 649, 659 , 876 A.2d 692 (2005).

Where there is no dispute of material fact, this Court’s focus is on whether the trial court’s grant of the motion was legally correct. Laing v. Volkswagen of Am., 180 Md.App. 136, 152-53 , 949 A.2d 26 (2008). In reviewing the grant of summary judgment, we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party, in this case, appellants. Id; Green v. H & R Block, 355 Md. 488, 502 , 735 A.2d 1039 (1999).

The parties agree that the primary legal question in this case is one of statutory interpretation. This Court utilizes a de novo standard to analyze questions regarding a circuit court’s interpretation of statutory provisions. Maryland-National Capital Park and Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006); Moore v. State, 388 Md. 446, 452 , 879 A.2d 1111 (2005). “Although the factual determinations of the circuit court are afforded significant deference on review, its legal determinations are not.” Goss v. C.A.N. Wildlife Trust, Inc., 157 Md.App. 447, 456 , 852 A.2d 996 (2004). “Where the order involves an interpretation and application of Maryland statutory and case law, we must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002). ANALYSIS /.

THE STATUTORY SCHEME In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act, codified at Md.Code (1976, 2006 Repl.Vol., 2007 Supp.), § 3-2A-01 et seq. of the Courts ³⁴⁷ and Judicial Proceedings Article (“CJ”) (“the Act”). The Act governs every aspect of medical malpractice claims filed in Maryland. CJ § 3-2A-02(a). The Act requires that all medical malpractice claims for amounts over the statutory limit be submitted to the Maryland Health Care Alternative Dispute Resolution Office (MHCADRO) for an initial assessment before the matter can be submitted to the courts.

CJ § 3-2A-04(a). Significantly, any party may waive arbitration any time after the filing of a certificate, as they did in this case. CJ § 3-2A-06B. Within the Act are the two statutory provisions we must consider in the present appeal.

Section 3-2A-02 of the Act, entitled “Exclusiveness of Procedures,” mandates that the provisions of the Act are the exclusive provisions governing the initiation of malpractice claims in Maryland. Of particular interest in the present appeal is C J § 3-2A-02(c), providing in pertinent part: (c) Establishing liability of health care provider; qualifications of persons testifying.— (1) In any action for damages filed under this subtitle, the health care provider is not liable for the payment of damages unless 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 at the time of the alleged act giving rise to the cause of action. (2) (i) This paragraph applies to a claim or action filed on or after January 1, 2005. (ii) 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: 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 defen ³⁴⁸ dant 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 item 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. Item (ii)l.B 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. Section 3-2A-04 of the Act is more procedural in nature, specifically setting out the methods by which claims under the Act shall be filed and decided. At issue in the present case is CJ § 3-2A-04(b), providing in relevant part: (b) Filing and service of certificate of qualified expert.— Unless the sole issue in the claim is lack of informed consent: (l)(i) 1.

Except as provided in item (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant or plaintiff 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.... (3)(i) The attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached. (ii) Discovery is available as to the basis of the certificate. CJ § 3-2A-04(b).

In D’Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631 , 853 A.2d 813 , cert, denied, 384 Md. 158 , 862 A.2d 993 (2004), ³⁴⁹ this Court considered the appropriate sanction for the filing of a certificate that did not state that any of the 31 named defendants breached the standard of care, or that any such breach was the proximate cause of the alleged injuries; nor did the claimant attach a report from the attesting experts to their certificate, as required by CJ § 3-2A-04(b)(3). Id. at 635, 853 A.2d 813 . We noted that submission of a fully compliant certificate was an indispensable step in the arbitration process; indeed, it was so important that, if the certificate requirement was not satisfied, a circuit court action should be dismissed, sua sponte. Id. at 645, 853 A.2d 813 (citation omitted).

We further opined that the failure to file a certificate that satisfied all of the requirements of the Act was “tantamount to not having filed a certificate at all.” Id. (citation omitted). We concluded that, in such case, the trial court’s grant of the defendants’ motions to dismiss the case without prejudice was appropriate. Id. at 652 , 853 A.2d 813 .

The Court of Appeals considered CJ § 3-2A-04(b)(3), which provides that a report of the attesting expert must be attached when a certificate is filed, in Walzer v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006). After reviewing the principles of statutory interpretation, and relevant cases, the Court, finding no ambiguity in the language of the statute, held that, if a party fails to comply with the requirements for filing a fully compliant certificate, dismissal without prejudice was mandated, without consideration for the harshness of the consequences that resulted. Id. at 577-81, 584-85 , 911 A.2d 427 . In Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007), the Court further clarified its holding in Walzer , stating that if a claimant fails to file a fully compliant certificate, a mandatory condition precedent to maintain the malpractice action has not been met, and dismissal is required by the statute.

Id. at 181-82, 929 A.2d 19 (citing McCready Memorial Hosp. v. Hauser, 330 Md. 497, 512 , 624 A.2d 1249 (1993); Walzer, supra, 395 Md. at 578, 911 A.2d 427 ; Witte, supra, 369 Md. at 533, 801 A.2d 160 ; Goicochea v. Langworthy, 345 Md. 719, 729 , 694 A.2d 474 (1997)). ³⁵⁰ The Carroll Court further recognized that the provisions of CJ § 3-2A-02(c)(2)(ii), establishing the mandatory clinical experience requirements, must be considered as part of the determination of whether a certificate is fully compliant. Id. at 189-91, 929 A.2d 19 ; see also Univ. of Md. Med. Sys. Corp. v. Waldt, 411 Md. 207, 227-28 , 983 A.2d 112 (2009) (utilizing the five year requirement of CJ § 3-2A-02(c) to interpret the “20 percent” rule of CJ § 3-2A-04(b)(7)).

We interpret the Court’s decision in Carroll as further emphasizing that the provisions of these two sections are inextricably intertwined. Most recently, this Court considered the sufficiency of a Certificate of Merit in our decision in Barber v. Catholic Health Initiatives, Inc., 180 Md.App. 409 , 951 A.2d 857 , cert, denied, 406 Md. 192 , 957 A.2d 999 (2008). Considering the Court of Appeals’ previous decisions, we reaffirmed that the Maryland Rules are generally applicable to all of the provisions of the statute. Id. at 416, 423, 951 A.2d 857 (citing this Court’s previous opinion in the same case, which was remanded by the Court of Appeals in light of its decision in Carroll, supra).

II

CONSTRUCTION OF THE STATUTE The facts of this case are not in dispute. The parties agree that, under the provisions of the Act set forth above, Dr. Burt, an anesthesiologist, was not a qualified expert to opine upon the standard of care applicable to Dr. Breslin, a vascular surgeon. 8 The only question before us in this appeal is whether Dr. Burt’s failure to meet the enumerated certification qualifications of CJ § 3-2A-02(c)(2)(ii) justifies the circuit court’s grant of summary judgment, or whether the circuit court, under the provisions of CJ § 3-2A-04(b)(l)(i)(l), was ³⁵¹ required to dismiss the action without prejudice. The question before us is purely one of statutory interpretation. The Court of Appeals set forth the principles of statutory interpretation in Walzer, supra, 395 Md. at 572-74, 911 A.2d 427 (footnote omitted), also in the context of the Act: “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Mayor of Oakland v. Mayor of Mt.

Lake Park, 392 Md. 301, 316 [ 896 A.2d 1036 ] (2006); Chow v. State, 393 Md. 431, 443 [ 903 A.2d 388 ] (2006) (citations omitted); see also Johnson v. Mayor of Balt. City, 387 Md. 1, 11 [ 874 A.2d 439 ] (2005); Moore v. State, 388 Md. 446, 452 [ 879 A.2d 1111 ] (2005); O’Connor v. Balt. County, 382 Md. 102, 113 [ 854 A.2d 1191 ] (2004); Mayor of Balt. v. Chase, 360 Md. 121, 128 [ 756 A.2d 987 ] (2000). As this Court has explained, “[t]o determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning.” State Dept. of Assessments and Taxation v. Maryland-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13 [ 702 A.2d 690 ] (1997); Montgomery County v. Buckman, 333 Md. 516, 523 [ 636 A.2d 448 ] (1994); see also Chow, 393 Md. at 443 [ 903 A.2d 388 ] (stating that “[statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology”) (citations omitted).

We do so “on the tacit theory that the Legislature is presumed to have meant what it said and said what it meant.” Witte v. Azarian, 369 Md. 518, 525 [ 801 A.2d 160 ] (2002). “When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature’s intent.” Marriott Employees Fed. Credit Union v. MVA 346 Md. 437, 445 [ 697 A.2d 455 ] (1997). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Jones v. State, 336 Md. 255, 261 [ 647 A.2d 1204 ] (1994). In addition, “[w]e neither add nor delete words to a clear and unambigu ³⁵² ous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Taylor v. NationsBank, N.A., 365 Md. 166, 181 [ 776 A.2d 645 ] (2001); see Chow, 393 Md. at 443 [ 903 A.2d 388 ]. “ ‘If there is no ambiguity in th[e] language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends____’ ” Chow, 393 Md. at 443-44 [ 903 A.2d 388 ]. If the language of the statute is ambiguous, however, then “courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of [the] enactment [under consideration].” Fraternal Order of Police v. Mehrling, 343 Md. 155, 174 [ 680 A.2d 1052 ] (1996) (quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 [ 517 A.2d 730 ] (1986)).

We have said that there is “ ‘an ambiguity within [a] statute’ ” when there exist “ ‘two or more reasonable alternative interpretations of the statute.’ ” Chow, 393 Md. at 444 [ 903 A.2d 388 ] (citations omitted). When a statute can be interpreted in more than one way, “ ‘the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal.’ ” Id. If the true legislative intent cannot readily be determined from the statutory language alone, however, we may, and often must, resort to other recognized indicia— among other things, the structure of the statute, including its title; how the statute relates to other laws; the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it; the general purpose behind the statute; and the relative rationality and legal effect of various competing constructions. Witte, 369 Md. at 525-26 [ 801 A.2d 160 ].

In construing a statute, “[w]e avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” ³⁵³ Blake v. State, [395] Md. [213, 909 A.2d