Rice v. University of Maryland Medical System Corp.

MEREDITH, J. In Walzer v. Osborne, 395 Md. 563, 585 , 911 A.2d 427 (2006), the Court of Appeals held: “Because [the claimant had] failed to attach the expert report to the certificate of qualified expert in a timely manner, the trial court was required to dismiss [the] medical malpractice claim.” When the Walzer decision was announced, the appellants in the present appeal were in the midst of pursuing claims based upon alleged medical ⁵⁵³ negligence. They had won a substantial verdict in one jury trial, but a new trial had been ordered. Relying upon Walzer , the appellee, University of Maryland Medical System Corporation (“UMMS”), moved to dismiss appellants’ complaint because, when appellants’ initiated their claim in 2003, appellants had filed the type of expert’s certificate the Walzer Court had ruled inadequate. The circuit court agreed with UMMS and dismissed appellants’ suit without prejudice.

The appellants not only appealed the dismissal, but also attempted to salvage their claim by refiling the action after the June 1, 2007, effective date of a savings statute codified as Md.Code (3973, 2006 Repl.Vol., 2007 Supp.), Courts and Judicial Proceedings Article (“CJP”), § 5-119. UMMS then moved to dismiss the refiled action, arguing that the applicable statute of limitations expired prior to commencement of this second action. The Circuit Court for Baltimore City granted the motion to dismiss the refiled action with prejudice, and the appellants noted the present appeal. We conclude that the plaintiffs’ refiling was permitted by CJP § 5-119.

Therefore, we shall reverse the judgment of the circuit court and remand the case for further proceedings. FACTS AND PROCEDURAL HISTORY On or about March 6, 2001, Pearline Brown Rice visited the University of Maryland Medical Center, complaining of pain in her left knee. The attending doctor diagnosed her ailment as osteoarthritis. In fact, the cause of the pain was a ruptured, cancerous cyst.

Not until several months later was the cyst diagnosed and appropriately treated. In spite of surgical excision, amputation, radiation therapy, and chemotherapy, Rice died of cancer on March 26, 2003. Based on their theory that the delay in proper diagnosis and treatment caused Pearline Rice’s death, appellants initiated an action for damages against the hospital’s owner and operator, UMMS, as well as University of Maryland Physicians, P.A., University of Maryland Emergency Medicine Associates, P.A., and three doctors who had treated Pearline Rice at the ⁵⁵⁴ hospital. The legal proceedings against UMMS were initiated on November 17, 2003, when the decedent’s children—Gloria A. Rice, Zerline Rice Holmes, and Gerald G. Rice (“appellants”)—filed a complaint with the Health Care Alternative Dispute Resolution Office (“the Health Care ADR Office”). 1 The complaint included a negligence count and a wrongful death count, and alleged that medical malpractice committed by UMMS (and the corporate health care providers and individual doctors) caused the death of appellants’ mother.

Section 3-2A-04 of the Courts and Judicial Proceedings Article prescribes the procedure for pursuing medical malpractice claims against health care providers. Initially, a claimant must file a statement of claim with the Health Care ADR Office. CJP § 3-2A-04(a)(l)(i). Section 3-2A-04(b) requires that the claimant file a certificate of a qualified expert, as follows: (b) Filing and service of certificate of qualified expert.— Unless the sole issue in the claim is lack of informed consent: (l)(i)l.

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 [of the Health Care ADR Office] 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. ⁵⁵⁵ On November 17, 2003, appellants filed with the Health Care ADR Office a statement of claim, as well as a one-page document captioned “Claimant’s Certificate of Merit and Report” that stated the following: CLAIMANTS CERTIFICATE OF MERIT AND REPORT 1 HEREBY CERTIFY, that I have reviewed the medical charts and/or medical records concerning the above named Claimant(s). The care and treatment given Claimant(s) by the Health Care Providers named in these proceedings, in my opinion, and based upon a reasonable degree of medical probability, failed to meet the acceptable standard of care owed a patient under similar or like circumstances and as a direct and/or proximate cause of the failure to meet the acceptable standard of care, the Claimants suffered injuries and/or damages. I FURTHER CERTIFY, the [sic] I am a licensed medical doctor, 1 practice medicine and I devote less than 20% of my annual professional activities to those that directly involve testimony in personal injury claims. The document was signed by Barry L. Singer, M.D. On December 2, 2003, appellants elected to unilaterally waive arbitration, as permitted by CJP § 3-2A-06B(b), and filed a complaint in the Circuit Court for Baltimore City, requesting a jury trial.

No objection to the expert’s certificate of merit or report was raised until the end of 2006. In the meantime, the parties completed three years of discovery and conducted a full trial on the merits. The docket entries of the circuit court reflect that a jury trial commenced on April 24, 2006, and continued on April 25, 26, 27, and 28. The docket entries further reflect: “At the end of the pltff s case, deft’s motion to dismiss case ‘heard and denied’ and “At the end of the entire case, deft’s renewed motion for judgment ‘heard and denied.’ ” On April 28, 2006, the jury returned a verdict in appellants’ favor.

The circuit court’s docket entries reflect: “Judgment on verdict in favor of the plaintiffs in the amount of $11,003,000.00 and costs.” On August 25, 2006, ⁵⁵⁶ however, the trial court granted UMMS’s motion for a new trial, but denied its motion for judgment notwithstanding the verdict. A new trial was scheduled to begin on January 22, 2007. Before the arrival of the date for the new trial, the Court of Appeals decided the case of Walzer v. Osborne, supra, 395 Md. 563 , 911 A.2d 427 , on November 17, 2006. Reversing the ruling this Court had made in Osborne v. Walzer, 167 Md.App. 460 , 893 A.2d 654 (2006), the Court of Appeals held that “the language of § 3-2A-04(b) mandates that the certificate of qualified expert be complete, with an attesting expert report attached, and that dismissal of the claim without prejudice is the appropriate remedy when the claimant fails to attach the report in a timely manner.” 395 Md. at 567 , 911 A.2d 427 .

Relying upon the language in Walzer relative to dismissal being the appropriate remedy for a failure to attach a separate report to the certificate of merit, UMMS moved, on December 1, 2006, that the circuit court dismiss appellants’ complaint on the ground that they had failed to file a separate expert’s report when they had filed their certificate of merit back in 2003. Appellants opposed the motion, and also moved to “supplement” their previously filed certificate of merit. On January 18, 2007, the circuit court dismissed the appellants’ complaint without prejudice, based upon the opinion in Walzer. The court explained its ruling in a written opinion as follows: In Walzer v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006), the Court of Appeals recently stated that a court is required to dismiss a medical malpractice action when a claimant fails to attach, in a timely manner, the required attesting expert report to the certificate of qualified expert. * * * The Report must be attached to the certificate and the certificate of qualified expert is not complete unless the expert report is filed as an attachment thereto.

Walzer, 911 A.2d at 429 . In the case at bar, Plaintiffs included the word ⁵⁵⁷ “Report” in the caption “Claimant’s Certificate of Merit and Report.” (Emphasis added.) Plaintiffs contend that the addition of the word “Report” brings their certificate into compliance with 3-2A-04(b) of the Maryland Courts and Judicial Proceedings Article. Nevertheless, the contents of the certificate filed in the Walzer case are, for all intents and purposes, identical in substance to the contents of “Claimant’s Certificate of Merit and Report” filed in this case. Id. at 430....

Therefore Plaintiffs contention that their report complies with the statutory requirement fails. Plaintiff failed to attach the requisite expert report to the certificate of qualified expert in a timely manner. As such, this Court is required to dismiss Plaintiff’s medical malpractice claim and hereby does so. Id. at 440.

The circuit court also denied appellants’ motion to supplement the previously filed certificate of merit. On February 15, 2007, appellants filed with the circuit court a motion to reconsider its denial of their motion to supplement. That same day, appellants noted an appeal to this Court. During this same time frame, the General Assembly reacted to the Walzer decision by enacting 2007 Laws of Maryland Chapter 324.

Codified as CJP § 5-119, the provision states: (a) Scope.— (1) This section does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim. (2) This section applies only to a civil action claim that is dismissed once for failure to file a report in accordance with § 3-2A-04(b)(3) of this article. (b) Refiling of claim after dismissal.—If a civil action or claim is commenced by a party within the applicable period of limitations and is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the same party or parties on or before the later of: (1) The expiration of the applicable period of limitations; ⁵⁵⁸ (2) 60 days from the date of the dismissal; or (3) August 1, 2007, if the action or claim was dismissed on or after November 17, 2006, but before June 1, 2007. Chapter 324 specifies in Section 2: That this act shall be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any action or claim dismissed before the effective date of this Act for which a final judgment has been rendered and for which appeals, if any, have been exhausted before the effective date of this Act.

The effective date of the act was June 1, 2007. On July 23, 2007, while their 2007 appeal to this Court was still pending, appellants filed a second complaint with the Health Care ADR Office. This complaint was identical to the first, but this time was accompanied by a certificate of merit and a separate attached expert’s report from Dr. Singer, as required by Walzer. This certificate of merit states: CERTIFICATE OF QUALIFIED EXPERT I HEREBY CERTIFY and attest as follows: I have reviewed medical records relating to Pearline Brown (“the patient”).

Based on my review, it is my opinion within a reasonable degree of medical probability, that the University of Maryland Medical System Corporation, acting through its actual and/or apparent agents, servants, and/or employees, including but not limited to, Elyse Michelson, M.D., Annie Lin, M.D.[,] Brian Crites, M.D. (collectively “the Health Care Providers”), departed from the applicable standard of care in the care and treatment of the Patient. It is also my opinion within a reasonable degree of medical probability, that the departure from the applicable standard(s) of care was the proximate cause of the injury/death and/or damages of the Patient. Attached is a brief statement of my opinion.

I have had experience, provided consultation relating to clinical practice, and/or taught medicine in the field of ⁵⁵⁹ Oncology, Internal Medicine, Hematology, Radiology, or a related field of health care, within the last five years of the date of the alleged acts and/or omissions giving rise to this cause of action. I am board certified in Internal Medicine, Oncology and Hematology, and/or have taught medicine in that specialty or a related field of health care. I am a licensed medical doctor, I practice medicine and I devote less than 20% of my annual professional activities to those that directly involve testimony in personal injury claims. The attached expert’s report states: REPORT OF CERTIFYING PHYSICIAN PURSUANT TO Md. Cts. & Jud.

Proc.Code Ann. § 3-2A-04(b)(3)(i) I am a licensed medical doctor. I have reviewed relevant medical records and/or other information regarding the care and treatment rendered to Pearline Rice-Brown (patient) at the University of Maryland Medical System during the period October 13, 1998 through March 26, 2003. On October 13, 1998, Pearline Rice-Brown presented to the out patient clinic at the University of Maryland System (UMMS) complaining of left knee pain intermittently during the prior two months. The attending physician made a note to consider an MRI if the pain persisted.

A Plain Film was ordered and done on October 20, 1998, which was interpreted by the radiologist as normal. On November 10, 1998, the patient presented at UMMS complaining again of persistent left knee pain. On April 27, 1999, patient again presented at UMMS where the record indicates “knee better.” On March 6, 2001, the patient presented at UMMS complaining of Left knee pain. Radiographic studies were not ordered.

Dr. Linn [sic] made a clinical diagnosis that “the left knee pain most likely secondary to osteoarthritis.[”] ⁵⁶⁰ It is my opinion within a reasonable degree of medical probability, that Dr. Lin, UMMS and its agents departed from the applicable standards of care in the care and treatment of the patient. Specifically, it was a departure from the applicable standards of care not to have ordered further radio graphic studies on March 6, 2001, given the patients [sic] history of prior left knee pain. It is further my opinion within a reasonable degree and medical probability that radio graphic studies done on or about March 6, 2001 would have revealed abnormalities that would have warranted a further work up of the patient. A proper work up would have revealed the soft tissue tumor in the patients [sic] left leg.

Timely treatment of the sarcoma ultimately diagnosed on October 2, 2001, would have prevented the eventual pulmonary metastasis diagnosed on April 9, 2002, and the patient’s death on March 26, 2003. Incorporated by reference in this report are my trial testimony in the Circuit Court of Baltimore City under case number 24-C-03008837 and my deposition testimony given on August 5, 2005 in the same case. This report is not, nor is it intended to be, an exhaustive description of all opinions and conclusion, and their bases. My opinions regarding the Health Care Providers, and departure from the applicable standards of care, may be modified and/or supplemented upon review of additional information and/or documents.

Both documents are signed by Dr. Singer. On July 27, 2007, appellants again waived arbitration unilaterally and filed in the circuit court a second complaint, essentially identical to the one they had filed in 2003. By coincidence, also on July 27, 2007, the Court of Appeals filed its opinion in Carroll v. Konits, 400 Md. 167, 181-82 , 929 A.2d 19 (2007), expanding upon its Walzer holding. In Carroll , the Court described the filing required by CJP § 3-2A-04(b) as a condition precedent to the arbitration that is a condition precedent to litigating a medical malpractice claim.

The Court made reference to the enactment of 2007 Laws of ⁵⁶¹ Maryland Chapter 324, but stated that “[t]he issues now being presented in the case sub judice are not affected by this new statute.” Id. at 185-86 n. 15, 929 A.2d 19 . As of July 27, 2007 (the date appellants filed the second complaint), appellants’ brief in the appeal that was then pending in this Court was due to be filed on August 15, 2007. Relying upon CJP § 5-119, appellants did not file any brief in the appeal then pending, and because of that, this Court dismissed that appeal pursuant to Rule 8-602(a)(7) on August 22, 2007. With respect to the circuit court action filed in July 2007, the parties stipulated to the dismissal of all defendants other than UMMS.

On December 31, 2007, UMMS moved to dismiss the 2007 complaint pursuant to Maryland Rule 2-322(b), on the ground that both the negligence and wrongful death claims were time-barred, more than three years having passed since UMMS’s alleged misdiagnosis and Rice’s death. UMMS argued that CJP § 5-119, if applied as appellants seek to do, would violate its constitutional right to due process by resurrecting stale claims against it. In their response to the motion to dismiss, appellants defended the constitutionality of CJP § 5-119. But appellants also asserted that their claims never expired at all because the filing of the first complaint with the Health Care ADR Office tolled the statute of limitations.

By order docketed on February 4, 2008, the circuit court granted UMMS’s motion to dismiss the second complaint with prejudice, without any explanatory opinion. On February 8, 2008, appellants noted the present appeal from that judgment of dismissal. DISCUSSION It appears plain to us that, unless the saving statute is unconstitutional as applied to this case, the provisions of CJP § 5-119 permitted the appellants to refile their claim as they attempted to do. They did not voluntarily dismiss the claim.

To the contrary, they assert that the reason they did not ⁵⁶² dismiss their previous appeal was to avoid running afoul of the provision that makes CJP § 5-119(b) inapplicable to a claim that has been voluntarily dismissed. And there is no question that their previous claim was “dismissed [only] once for failure to file a report in accordance with [CJP] § 3-2A-04(B)(3),” thereby falling squarely within the embrace of CJP § 5-119(a)(2). With respect to the requirements of CJP § 5-119(b), there appears to be no dispute that the claim was initially “commenced ... within