Powell v. Wurm

KRAUSER, C.J. The Maryland Health Care Malpractice Claims Act requires a “claimant or plaintiff’ to file, with his or her medical malpractice “claim or action,” “a certificate of a qualified expert” and a “report” from that expert. Md.Code Cts. & Jud. Proc. § 3-2A-04(b)(l)(i), (3)(i) (1974, 2013 Repl.Vol.) (“CJP”). Philip Powell, in his capacity as the personal representative of the Estate of Beatrice Powell, appellant, filed, in the Circuit Court for Prince George’s County, a medical malpractice action against Alex Wurm, M.D., appellee.

With that action he also filed, as directed by the foregoing section of ²²⁵ the Maryland Code, both a certificate of qualified expert and the report of the Estate’s medical expert. The principal question before us 1 is whether the report of the Estate’s expert satisfied Maryland law. The circuit court believed that it did not and dismissed the Estate’s action. We disagree and shall reverse and remand this case for trial.

I. On August 5, 2009, Dr. Wurm, a radiologist, 2 performed an “inferior [vena] cava filter placement” procedure on the now-deceased Mrs. Beatrice Powell to treat her chronic pulmonary emboli. 3 This surgical procedure involves the insertion of a “filter” into the “inferior vena cava,” a “vein formed by the union of the two common iliac veins” and which “empties into the right atrium of the heart.” Stedman’s Medical Dictionary (2001) 414. During Dr. Wurm’s performance of that procedure, the filter “perforated the wall” of Mrs. Powell’s inferior vena cava and, as a result of that perforation, the filter was deposited, not in the inferior vena cava as intended, but in “an extravascular location.” Consequently, Mrs. Powell had to subsequently undergo additional surgery to remove the filter and repair the damage to her inferior vena cava. 4 Although Mrs. ²²⁶ Powell died a year later, it is not alleged that her death was a consequence of the procedure performed by Dr. Wurm. On August 2, 2012, three years after the filter placement procedure in question and two years after Mrs. Powell’s death, the Estate filed a medical malpractice claim, with the Health Care Alternative Dispute Resolution Office, against Dr. Wurm, alleging that the doctor had failed to “exercise appropriate care and technique” during the filter placement procedure. That failure led, claimed the Powell Estate, to a piercing of the wall of the inferior vena cava and to the subsequent misplacement of the filter.

In accordance with section 3-2A-04(b) of the Health Care Malpractice Claims Act, the Estate filed with its malpractice claim a “certificate of qualified expert,” signed by Robert Vogelzang, M.D., a radiologist, together with Dr. Vogelzang’s report. Then, after waiving arbitration of its claim, the Estate filed a medical malpractice complaint against Dr. Wurm in the Prince George’s County circuit court. With its complaint, the Estate filed the certificate of qualified expert and the report from Dr. Vogelzang. The certificate stated that it was Dr. Vogelzang’s opinion, “to a reasonable degree of medical probability,” that Dr. Wurm, in performing the inferior vena cava filter placement, departed “from the standards of care in connection with such medical procedure” and that that “departure from the standards of care [was] the proximate cause of [Mrs. Powell’s] injuries.” The “specific departures from the standard of care are set forth,” indicated the certificate, “in the attached report.” In that report, Dr. Vogelzang stated: In my opinion, Dr. Wurm violated the applicable standards of care in the placement of an inferior vena cava filter in that he failed to exercise appropriate care and technique and thereby perforated the wall of the inferior vena cava and deposited the filter in an extravascular location, thus necessitating the subsequent surgery to remove the filter and repair the caval laceration.

Dr. Wurm moved to dismiss the Estate’s malpractice action on the grounds that the Estate’s medical expert report was ²²⁷ legally insufficient. In support of that claim, Dr. Wurm cited the following language from Walzer v. Osborne: “[T]he attesting expert report must explain how or why the physician failed ... to meet the standard of care and include some details supporting the certificate of qualified expert.” 395 Md. 563, 583 , 911 A.2d 427 (2006). Since Dr. Vogelzang’s report, purportedly, “merely restate[d]” the allegations in his certificate and provided no additional details, the Estate’s expert report, insisted Dr. Wurm, was inadequate and the Estate’s malpractice claim must therefore be dismissed. In its opposition to that motion, the Estate asserted that there was “no dispute that Dr. Wurm perforated” Mrs. Powell’s inferior vena cava and that discovery would be necessary to determine precisely which of Dr. Wurm’s actions or inactions had led to that perforation.

To that opposition, it attached a “revised opinion letter” from Dr. Vogelzang, in which Dr. Vogelzang opined that Dr. Wurm had “failed to meet the standard of care” for placing an inferior vena cava filter by neglecting to use a “guidewire,” or using an “improper guidewire,” or by not injecting “contrast” to confirm the position of the filter. This revised opinion letter, however, was submitted to the court after the statutory period for filing a certificate of qualified expert with the attesting expert report attached had expired. See CJP § 3-2A-04(b)(l)(i)-(ii) (requiring a plaintiff to file a certificate of qualified expert within 180 days from the date the complaint is filed in the Health Care Alternative Dispute Resolution Office). Acknowledging the lateness of this submission, the Estate requested that the circuit court grant it “an extension of time,” for “good cause shown,” to file its “certificate of a qualified expert,” under section 3-2A-04(b)(5) of the Act, so that it could supplement Dr. Vogelzang’s original report. 5 ²²⁸ With no mention of that revised opinion letter or its contents in its written opinion, the circuit court dismissed the action, concluding that, because Dr. Vogelzang’s report did not state “how” or “why” Dr. Wurm failed to meet the standard of care and did not contain any “supplemental information” or “details to support the certificate,” it had “fail[ed] to comply with the substantive requirements of Walzer” and was therefore “legally insufficient.” The insufficiency of the report, in turn, rendered the certificate of qualified expert “incomplete.” II.

The Estate contends that its certificate of qualified expert and the attached report complied with the requirements set forth in the Health Care Malpractice Claims Act. It points out that the Act does not mandate the contents of the report, but requires only that the report of the attesting expert be attached to the certificate of qualified expert. It further asserts that decisions of the Court of Appeals — notably, Walzer v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006); Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007); and Kearney v. Berger, 416 Md. 628 , 7 A.3d 593 (2010) — have consistently suggested that the attesting expert’s report need only contain “at least some additional information” that “supplement[s]” the certificate to satisfy statutory requirements. Walzer, 395 Md. at 583 , 911 A.2d 427 .

Finally, it states that Dr. Vogelzang’s report, which opined that Dr. Wurm had perforated Mrs. Powell’s inferior vena cava by failing to exercise appropriate care and technique, had done exactly that. Because our determination of whether the Estate’s certificate of its qualified expert and report of its attesting expert complied with Maryland law is a question of legal sufficiency, we conduct a de novo review, keeping in mind that the dismissal of a medical malpractice claim “is only appropriate if, after assuming the truth of the assertions in the [certificate and report, and all permissible inferences emanating therefrom, the requirements set forth in the [Act] are not satisfied.” Carroll, 400 Md. at 180 n. 11, 929 A.2d 19 . ²²⁹ Our review begins with the text of section 3-2A-04(b) of the Act, and if the words of that section, when “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.” Walzer, 395 Md. at 572 , 911 A.2d 427 (internal quotation marks and citation omitted). In requiring that a medical malpractice claimant file a “certificate of qualified expert” with his or her claim, the Act states: (b) Filing and service of certificate of qualified expert— Unless the sole issue in the claim is lack of informed consent: (l)(i) 1 ... 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 ... 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.

The Act clearly specifies what the “certificate of a qualified expert” must attest to. It must state that there was a “departure from standards of care, and that the departure from standards of care [was] the proximate cause of the [plaintiffs] alleged injury.” CJP § 3-2A-04(b)(l)(i). And it must “mention explicitly the name of the licensed professional who allegedly breached the standard of care.” Carroll, 400 Md. at 196 , 929 A.2d 19 (internal citations omitted). But, as for the “report of the attesting expert,” the Act only mandates that such a report be “attached” to the certificate.

CJP § 3-2A-04(b)(3)(l). No mention is made by the Act as to what it should contain. There is no dispute that Dr. Vogelzang’s certificate opined that “there was a departure from the standards of care,” that it stated that such a departure was the proximate cause of ²³⁰ Mrs. Powell’s injuries, and that it identified Dr. Wurm as the negligent physician. Moreover, the doctor’s report was attached to his certificate.

Thus the only question before us is whether Dr. Vogelzang’s report satisfied the requirements of the Act, in other words, whether the circuit court was correct in dismissing this case on the grounds that the report was legally deficient. As noted, the language of the Act itself states only that the report must be “attached” to the certificate of the plaintiffs qualified expert. It does not provide any indication of what the “report of the attesting expert” must contain. But the imprecision of the report requirement of the Act has fortunately been, in large measure, remedied by the Court of Appeals in a series of opinions.

First, in Walzer v. Osborne, 395