Puppolo v. Adventist Healthcare, Inc.

ZARNOCH, J. In this medical malpractice case, Celeste Puppolo (“Puppolo”), in her capacity as personal representative of the estate of Nancy Puppolo (“Mrs. Puppolo”), sued Adventist Healthcare, Inc. (“Adventist”) and Dr. Sabyasachi Kar alleging negligence in the death of Mrs. Puppolo. Puppolo now seeks review of an order of the Circuit Court for Montgomery County, which granted Adventist’s and Dr. Kar’s motions for summary judg ⁵²² ment and granted Adventist’s motion to dismiss pursuant to the statute of limitations and for Puppolo’s failure to comply with the Maryland Health Care Malpractice Claims Act (“HCMCA”), Md.Code (2006, 2013 Repl. Vol.), Courts & Judicial Proceedings Article (“CJP”), § 3-2A-02. We find no error and therefore affirm the decision of the circuit court.

FACTUAL BACKGROUND On August 12, 2006, Mrs. Puppolo, age 81 at the time, arrived at Washington Adventist Hospital (“WAH”) by ambulance. The paramedics indicated that she had a stroke the previous night, resulting in right side weakness and general incoherence. The emergency department ordered a CT scan of the head, a chest x-ray, and blood work. Dr. Kar, a hospitalist 1 at WAH, examined Mrs. Puppolo around 7:35 p.m. and wrote an admitting note. 2 A radiologist interpreted the CT scan and concluded that the scan did not show a new stroke or bleeding.

Dr. Kar devised a treatment plan that admitted Mrs. Puppolo to the Medical/Surgical Telemetry Unit, ordered an MRI to confirm there was no new stroke, and requested a neurologist to evaluate her condition. Dr. Kar prescribed Lovenox 3 based on her weight to “bridge her anticoagulation and to manage the risk of stroke due to atrial fibrillation.” Dr. Kar’s shift ended at 8:00 p.m. and he left the hospital. A neurologist saw the patient and agreed with Dr. ⁵²³ Ear’s plan; the Lovenox was then administered around 9:00 p.m. The next day, Dr. Shahid Shamim assumed responsibility for Mrs. Puppolo’s care.

Dr. Shamim had previously treated her on a different occasion, and it was hospital policy to have patients see the same hospitalist. Along with the attending neurologist and other treating providers, Dr. Shamim cared for her for the remainder of her time at WAH. While still in the hospital on August 19, 2006, Mrs. Puppolo suffered a massive intracranial hemorrhage, which caused her to lapse into a coma. Her providers observed the hemorrhaging during an MRI scan the next day.

They discontinued the Lovenox and transferred her to the University of Maryland Shock Trauma Center, where she remained in a coma for six weeks. From August 20, 2006 to June 27, 2007, Mrs. Puppolo suffered from complications relating to her hemorrhage, coma, and extended hospitalization. The complications included hospital-acquired bacterial infections, bedsores on her lower back and right heel that resulted in surgeries and toe amputations, numerous bodily contusions, multiple instances of hypoglycemic shock, renal failure, lung collapse, sepsis accompanied by systemic inflammatory response syndrome, and pain and suffering. Mrs. Puppolo ultimately passed away in December 2008.

LEGAL PROCEEDINGS On August 12, 2009, Puppolo filed a claim with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”) against Adventist and Dr. Ear. 4 Puppolo filed a Certificate of Merit and Report prepared by Dr. Joseph Jeret, a neurologist, in October 2009. The parties waived out of arbitration and Puppolo filed a complaint in the Circuit Court for Montgomery County on May 7, 2010, alleging that appellees breached the standard of care when treating her mother. ⁵²⁴ Specifically, she alleged that Mrs. Puppolo received an inappropriate dosage of Lovenox from appellees, and that they failed to diagnose her stroke and intercranial bleeding in a timely manner. She alleged that as a proximate cause of their negligence and breach of the standard of care, her mother suffered injuries and damages. After Adventist moved to dismiss for “Deficient Certificate of Qualified Expert and Report,” the court, on January 28, 2011, dismissed the complaint against Adventist without prejudice because the court determined that Puppolo’s certificate did not specifically identify the licensed professionals at WAH whom she alleged breached the standard of care.

The court did not dismiss the complaint as to Dr. Kar. Dr. Kar filed multiple motions to strike Puppolo’s medical expert’s certificate of merit and report, arguing that a neurologist could not be a qualified expert with respect to a hospitalist. The court denied these motions. On March 29, 2011, Puppolo filed a second complaint against Adventist in the Circuit Court for Montgomery County.

The court consolidated this new complaint against Adventist with the previous complaint against Dr. Kar. On August 25, 2011, Adventist filed a motion to dismiss, arguing that the statute of limitations had expired in August 2009, three years after the alleged malpractice. Adventist also argued that Puppolo did not comply with the HCMCA when she filed the second complaint in circuit court, instead of beginning again before the HCADRO. In addition to the motion to dismiss, Adventist filed a motion for summary judgment, arguing that Puppolo did not identify any expert witnesses in accordance with the court’s scheduling order and therefore could not present a prima facie case of negligence against Adventist.

On December 2, 2011, the court held a hearing and, over Puppolo’s opposition, granted both of Adventist’s motions. 5 ⁵²⁵ On March 26, 2012, Dr. Kar filed a motion to dismiss and a motion for summary judgment. On June 7, the court initially denied these motions, but then, on a motion to reconsider, the court ruled in favor of Dr. Kar because Puppolo conceded that her neurologist expert could not opine on the standard of care for a hospitalist. On June 18, Puppolo filed a motion to alter or amend the court’s judgment. Dr. Kar opposed this motion, and on August 24, the court denied Puppolo’s motion.

Puppolo timely filed her appeal, requesting review of the judgments concerning both Adventist’s and Dr. Kar’s motions. Additional facts will be provided as necessary in our discussion of the issues. QUESTION PRESENTED Puppolo presents the following questions, which we have rephrased: 6 1. Did the court err in granting Adventist’s and Dr. Kar’s motions to dismiss? 2.

Did the court err in granting Adventist’s and Dr. Kar’s motions for summary judgment? ⁵²⁶ 3. Did the court abuse its discretion in denying Puppolo’s request to correct deficiencies and her motion to alter or amend? We answer no to each of these questions. DISCUSSION I. Background We begin with a brief explanation of the HCMCA, which governs procedures for all “claims, suits, and actions ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought.” CJP § 3-2A-02(a)(l). “Essentially, the [HCMCA] requires the submission of certain medical malpractice claims to an arbitration panel for an initial assessment before the matter can be submitted to a court of law for a final determination.” Walzer v. Osborne, 395 Md. 563, 574-75, 911 A.2d 427 (2006) (footnote omitted).

Arbitration is a condition precedent under the HCMCA, and it requires that the claimant file a “certificate of a qualified expert within ninety days of the filing of the statement of claims.... Besides filing an expert’s certificate, a claimant is also required to file with the certificate ‘a report of the attesting expert.’ ” D’Angelo v. St Agnes Healthcare, Inc., 157 Md.App. 631, 645 , 853 A.2d 813 (2004) (Citations omitted). If the parties choose, they can waive the arbitration requirement after the filing of a certificate of expert and report and take the case to the circuit court. CJP § 3-2A-06A.

In 2006, the Court of Appeals held that the failure to attach a proper report to the expert’s certificate would result in the case being dismissed without prejudice. Walzer, 395 Md. at 585 , 911 A.2d 427 . 7 In response to the Walzer decision, the ⁵²⁷ General Assembly enacted CJP § 5-119, 8 which “(applies only to a civil action or claim that is dismissed once for failure to file a report in accordance with § 3-2A-04(b)(3) [of CJP.]).” 9 ⁵²⁸ Rice v. Univ. of Maryland Med. Sys. Corp., 186 Md.App. 551, 557 , 975 A.2d 193 (2009).

Under CJP § 5-119, if a party’s civil action or claim is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the parties, on or before the later of: the expiration of the applicable period of limitations, sixty days from the date of dismissal, or August 1, 2007 if the dismissal occurred between the Walzer decision and the enactment of the statute. CJP § 5 — 119(b). In Carroll v. Konits, 400 Md. 167 , 929 A.2d 19 (2007), the Court of Appeals affirmed the circuit court’s dismissal of a malpractice action because of a legally insufficient expert witness report and certificate. Id. at 172 , 929 A.2d 19 .

The Court held that the “certificate” was a condition precedent to litigating a medical malpractice claim and that such an action should be dismissed if the certificate did not identify with specificity the licensed professionals against whom the claims were brought and state that the defendants breached the standard of care proximately causing the plaintiffs injuries. Id. In a footnote, the Court noted the enactment of CJP § 5-119, but said that “[t]he issues now being presented ... are not affected by this new statute.” Id. at 185-86, n. 15, 929 A.2d 19 . In Breslin v. Powell, the Court of Appeals examined cases that had been waived into circuit court and were then dismissed for a defect in the certificate. 421 Md. 266 , 290 n. 20, 26 A.3d 878 (2011).

The Court noted that each was dismissed because the Certificate is an “indispensable” step in the arbitration process such that arbitration cannot occur without the filing of a proper certificate. Because a claim cannot be in circuit ⁵²⁹ court without meeting all of the requirements for arbitration laid out in CJP § 3-2A-04, including filing a Certificate, filing of a proper certificate is a condition precedent to filing an action in circuit court.... Therefore, if a proper Certificate has not been filed, the case should not have been in court in the first place and should be dismissed without prejudice in accordance with the HCMCA. Id.

(Citations omitted). Breslin also indicated that the certificate requirement applies both to “claims before the arbitration panel as well as actions in the courts.” Id.

II

Motion to Dismiss Before addressing whether the circuit court was correct in dismissing the action against Adventist, we note that both the circuit court and Puppolo viewed CJP § 5-119 as applicable to this case. Adventist now argues that this statute has no relevance here, although it did not take this position below. Read literally and as a response to Walzer , CJP § 5-119 appears to apply only to a failure to file a proper expert’s report under CJP § 3-2A-04(b)(3), rather than the failure to file a sufficient certificate of qualified expert under § 3-2A-04(b)(1). The January 28, 2011 dismissal of Puppolo’s claim against Adventist for failure to sufficiently identify the responsible providers in the certificate seems to smack more of a deficiency under § 3-2A-04(b)(1), rather than a failure to comply with § 3-2A-04(b)(3).

It is understandable that the court and the parties might focus on CJP § 5-119. Maryland caselaw has jumbled together both the certificate and report requirements. See n. 7, supra. Moreover, an insufficiency in the certificate could certainly spill over into the report.

Finally, the parties directed the circuit court to CJP § 5-119 and even Adventist captioned its motion to dismiss the initial complaint as one to dismiss “for Deficient Certificate of Qualified Expert and Report.” (Emphasis added). Ultimately, we believe there is no need to address the scope of CJP § 5-119, because it does not answer the ultimate ⁵³⁰ question of whether the January 28, 2011 dismissal required Puppolo to start again before the HCADRO or permitted her to file a new civil action in the circuit court. The issue is one of statutory interpretation that we review de novo. Barnes v. Greater Baltimore Med.

Ctr., Inc., 210 Md.App. 457, 471 , 63 A.3d 620 (2013). For the grant of a motion to dismiss, the standard is “whether the trial court was legally correct.” Schisler v. State, 177 Md.App. 731, 742 , 938 A.2d 57 (2007). This Court will “affirm a circuit court’s judgment on any ground adequately shown by the record, even one upon which the circuit court has not relied or one that the parties have not raised.” Barnes, 210 Md.App. at 471 , 63 A.3d 620 (Quotation omitted). Puppolo contends that the circuit court erred in dismissing her March 29, 2011 complaint against Adventist because she filed her new civil action in a forum allowed under CJP § 5-119.

She argues that the statute allows her to resurrect her claim as a new civil action rather than beginning again under the HCMCA procedures. She points to the phrase “commence a new civil action or claim for the same cause,” and argues that the use of the disjunctive “or” means that a party has “a choice between alternative things.” In addition to its contention that CJP § 5-119 does not apply, Adventist argues that the use of the disjunctive “or” in CJP § 5-119, which deals with a statute of limitations, does not give a party the option to circumvent compliance with the other procedural requirements of HCMCA. In our view, Adventist has the better of the arguments. Although § 5-119 and § 3-2A-04(b) relate in part to the same subject matter, § 5-119 is the narrower of the statutes.

It is primarily a limitations-savings provision. Like § 3-2A-04(b), it applies to both claimants and plaintiffs, to arbitration proceedings and civil actions. However, § 5-119 does not specify where a “cured” civil action/claim is to be filed. On the other hand, § 3-2A-04(b)(l) requires a “claimant or plaintiff” to file a certificate of qualified expert with an attached report under § 3-2A-04(b)(3) “with the Director” of HCA- ⁵³¹ DRO.

In short, under the latter statute, a plaintiff whose certificate or report is found deficient by a court must return to HCADRO to file anew. Multiple rules of statutory construction support this interpretation. The plain language of § 3-2A-04(b)(l) specifying where a “plaintiff’ in a civil action must file his or her certificate could not be any clearer. Additionally, “[bjecause the General Assembly is presumed to have intended that all its enactments operate together as a consistent and harmonious body of law, statutes will be interpreted, whenever reasonably possible, to avoid repeal by implication.” Farmers & Merchants Nat.

Bank of Hagerstown v. Schlossberg, 306 Md. 48, 61 , 507 A.2d 172 (1986). Puppolo’s proffered interpretation of CJP § 5-119 would fly in the face of this tenet. Next, we look at legislative purpose. The purpose of the HCMCA is to “weed out” unmeritorious malpractice claims.

D’Angelo, 157 Md.App. at 645 , 853 A.2d 813 . In addition to reducing litigation, the expert certificate and report “assist ... in evaluating the merit of the health claim or defense.” Walzer, 395 Md. at 583 , 911 A.2d 427 . The requirement to file a certificate and report furthers