Walzer v. Osborne

GREENE, J. In this case, we must determine whether, under Md.Code (1974, 2002 Repl.Vol., 2006 Cum.Supp.), § 3-2A-04(b) of the Courts & Judicial Proceedings Article, known commonly as the Health Care Malpractice Claims Statute (“Statute”), a court must dismiss a medical malpractice claim when a medical malpractice claimant files a certificate of qualified expert without an attesting expert report attached thereto. In dispute is whether the attesting expert report must be attached to the certificate of qualified expert, or whether it is merely suggestive that the report be attached. In addition, there is a dispute as to the sanction for failure to attach the report: specifically, whether § 3-2A-04(b) requires dismissal of the claim. We shall hold 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.

Thus, the trial court’s interpretation of the Statute was correct and, accordingly, we shall reverse the judgment of the Court of Special Appeals. ⁵⁶⁸ FACTUAL BACKGROUND Keith J. Osborne (“Respondent”) sought treatment from Clifford S. Walzer, D.M.D., of Walzer & Sullivan, D.D.S., P.C. (“Petitioners”), 1 for a broken jaw and related injuries in August and September of 2000. 2 On August 27, 2008, Respondent initiated proceedings against Petitioners by filing a Statement of Claim with the Health Care Alternative Dispute Resolution Office (“Health Care Office”) 3 of Maryland, alleging that Dr. Walzer was negligent in his treatment of Respondent. Respondent claimed that Dr. Walzer’s treatment fell below the standard of care and, as a result of the treatment, Respondent’s jaw was left permanently disfigured. On November 25, 2003, Respondent filed a certificate of qualified expert, executed by James S. Elmore, D.M.D., which provided that: I HEREBY CERTIFY that I am a doctor of dentistry, currently licensed to practice in the State of Pennsylvania, and that I do not devote annually more than twenty percent (20%) of my professional activities to the activities that directly involve testimony in personal injury claims.

Further, I am a Board Certified Diplomat of the American Board of Oral-Maxillofacial Surgery. Based on my training, expertise and review of the records, it is my opinion that there were deviations from the standards of care and said deviations were the proximate result of Claimant Keith Osbourne’s injury. ⁵⁶⁹ Respondent failed to attach to the certificate of qualified expert, an attesting expert report, as is required by § 3-2A-04(b)(3). After some discovery, Petitioners filed a waiver of arbitration. On May 26, 2004, Respondent filed a complaint in the Circuit Court for Anne Arundel County.

On June 17, 2004, the Petitioners filed an answer. On September 22, 2004, Petitioners filed a “Motion to Strike Respondent’s Certificate and to Dismiss, or, in the alternative, for Summary Judgment.” Respondent filed a response to the motion on October 29, 2004, to which he then attached an attesting expert report. The Circuit Court heard the case on December 15, 2004, and granted Petitioners’ motion on the grounds that the attesting expert report was not attached to the certificate of qualified expert as required by Maryland law. The Circuit Court thereafter signed an Order of Dismissal without prejudice.

Respondent filed a Notice of Appeal in the Court of Special Appeals on January 10, 2005. On March 1, 2006, the Court of Special Appeals filed its reported opinion, Osborne v. Walzer, 167 Md.App. 460 , 893 A.2d 654 (2006), holding that the language of the Statute does not require a court to dismiss a case when a claimant fails to attach an attesting expert report to the certificate of qualified expert. That court held that dismissal is appropriate only upon a showing that Petitioners suffered some prejudice, which it decided was not the case here. Petitioners filed a petition for writ of certiorari 4 in this Court, which we granted.

Walzer v. Osborne, 393 Md. 242 , 900 A.2d 749 (2006). For the reasons stated in this opinion, we reverse the judgment of the Court of Special Appeals and direct that the intermediate ⁵⁷⁰ appellate court reinstate the judgment of the Circuit Court for Anne Arundel County. DISCUSSION The parties dispute whether, under § 3-2A-04(b) of the Courts & Judicial Proceedings Article, the Statute requires a court 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. Section 3-2A-04(b) provides, 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 subparagraph (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 5 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. (Emphasis added.) In addition, the parties dispute whether § 3-2A-04(b) requires a claimant to attach an attesting expert report to a certificate of qualified expert in a medical malpractice action, ⁵⁷¹ or whether that section merely suggests that claimants do so. The parties, the trial court, and the intermediate appellate court disagree, as to the sanction imposed for failure to attach an attesting expert report to a certifícate of qualified expert. Respondent argues that the attachment requirement is not mandatory.

Respondent and the intermediate appellate court’s position is that the language of § 3-2A-04(b) does not mandate dismissal of a medical malpractice action for failure to attach the attesting expert report, but that, instead, the sanction is left to the discretion of the court and should be less harsh than dismissal. Petitioners and the Circuit Court disagree, contending that the language of the statute clearly mandates attachment of the attesting expert report and dismissal of the claim when the claimant fails to attach the attesting expert report as Respondent failed to do so in this case. A. Statutory Construction We must first determine whether the Legislature intended dismissal of a complaint where the certificate of qualified expert did not include an attached expert report of the attesting physician. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Mayor and Town Council of Oakland v. Mayor and Town Council of Mountain Lake Park, 392 Md. 301, 316 , 896 A.2d 1036, 1045 (2006); Chow v. State, 393 Md. 431, 443 , 903 A.2d 388, 395 (2006) (citations omitted); see also Johnson v. Mayor of Balt. City, 387 Md. 1, 11 , 874 A.2d 439, 445 (2005); Moore v. State, 388 Md. 446, 452 , 879 A.2d 1111, 1114 (2005); O’Connor v. Balt.

County, 382 Md. 102, 113 , 854 A.2d 1191, 1198 (2004); Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987, 991 (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 & ⁵⁷² Planning Comm’n, 348 Md. 2, 13 , 702 A.2d 690, 696 (1997); Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448, 452 (1994); see also Chow, 393 Md. at 443 , 903 A.2d at 395 (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, 165 (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, 458 (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, 1206-07 (1994). In addition, “[w]e neither add nor delete words to a clear and unambiguous 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. Nations-Bank, N.A., 365 Md. 166, 181 , 776 A.2d 645, 654 (2001); see Chow, 393 Md. at 443 , 903 A.2d at 395 . “ ‘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 at 395 .

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, 1062 (1996) (quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 , 517 A.2d 730, 732 (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 , 903 ⁵⁷³ A.2d at 395 (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 at 165 . In construing a statute, “[w]e avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Blake v. State, 395 Md. 213 , 909 A.2d 1020 (2006) (citing Gwin v. MVA, 385 Md. 440, 462 , 869 A.2d 822, 835 (2005)); see Frost v. State, 336 Md. 125, 137 , 647 A.2d 106, 112 (1994). In addition, “ ‘the meaning of the plainest language is controlled by the context in which it appears.’ ” State v. Pagano, 341 Md. 129, 133 , 669 A.2d 1339, 1341 (1996) (citations omitted).

As this Court has stated, [b]ecause it is part of the context, related statutes or a statutory scheme that fairly bears on the fundamental issue of legislative purpose or goal must also be considered. Thus, not only are we required to interpret the statute as a whole, but, if appropriate, in the context of the entire statutory scheme of which it is a part. Gordon Family P’ship v. Gar on Jer, 348 Md. 129, 138 , 702 A.2d 753, 757 (1997) (citations omitted). Lastly, “[statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature by creating statutory ⁵⁷⁴ assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced.” Gleaton v. State, 235 Md. 271, 277 , 201 A.2d 353, 356 (1964); See generally Robinson v. State, 353 Md. 683 , 728 A.2d 698 (1999)(discussing the proposition that statutes in derogation of the common law are to be construed narrowly, so as to not make any change in the common law beyond that which is expressly stated and necessary). “ ‘[B]eeause statutes in derogation of the common law are disfavored, the maxim expressio unius est exclusio alterms[ 6 ] has been extensively employed to avoid repeal of the common law, and refuted in order to make the statute cumulative with it.’ ” Waters v. State, 220 Md. 337, 356-57 , 152 A.2d 811, 821 (1959) (citations omitted). “Most statutes, of course, change the common law, so that principle [of narrow construction] necessarily bends when there is a clear legislative intent to make a change.” Witte, 369 Md. at 533 , 801 A.2d at 169 .

B. The Health Care Malpractice Claims Statute Before beginning our analysis, we provide some basic background information about the Health Care Malpractice Claims Statute and the medical malpractice claims process. The General Assembly enacted the Statute in 1976 “[for] the purpose of providing ... a mandatory arbitration system for all medical malpractice claims ... [and] the creation of a Health Claims Arbitration Office under the Executive Department. ...” 1976 Md. Laws, Chap. 235. Essentially, the Statute requires the submission of certain medical malpractice claims 7 to an arbitration panel for an initial assessment before ⁵⁷⁵ the matter can be submitted to a court of law for a final determination. See generally Edward W. McCready Mem’l Hosp. v. Hauser, 330 Md. 497 , 624 A.2d 1249 (1993); Newman v. Reilly, 314 Md. 364, 377 , 550 A.2d 959, 965-66 (1988).

The arbitration panel is either a three-person panel consisting of an attorney, a health care provider and a lay person, or, upon agreement of the parties, an arbitrator, in place of the three-person panel. §§ 3-2A-03(c), 3-2A-04(f); see also Witte, 369 Md. at 527 , 801 A.2d at 166 . The parties can choose to waive the arbitration requirement and take the case to court, as they did here. § 3-2A-06A. As we articulated in Edward W. McCready Mem’l Hosp., 330 Md. at 500-01 , 624 A.2d at 1251 : [T]he General Assembly enacted the [Statute] in response to explosive growth in medical malpractice claims and the resulting effect on health care providers’ ability to obtain malpractice insurance. 1976 Md. Laws, Chap. 235; see generally K. Quinn, The Health Care Malpractice Claims Statute: Maryland’s Response to the Medical Malpractice Crisis, 10 U. Balt. L.Rev. 74 (1980) (describing evolution of Statute and assessing its early effectiveness). “The general thrust of the Act is that medical malpractice claims be submitted to arbitration as a precondition to court action” where the potential claim exceeds the district court’s concurrent jurisdiction.

Attorney General v. Johnson, 282 Md. 274, 278-79 , 385 A.2d 57, 60 (1978); see also Oxtoby v. McGowan, 294 Md. 83, 91 , 447 A.2d 860, 865 (1982); Md. Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 3-2A-02(a). The basic procedures for initiating and maintaining a claim under the Statute are clear and simple. The Statute requires that a person with a medical malpractice claim first file that claim with the Director of the [Health Care Office]. § 3-2A-04(a). Thereafter, the plaintiff must file a certificate of qualified expert ... attesting to a defendant’s departure from the relevant standards of care which proximately caused the plaintiff’s injury. § 3-2A-04(b)(1)(i).

In general, the Statute mandates that the [Health Care Office] dismiss, without prejudice, any claim where the plaintiff fails to file an expert’s certificate ⁵⁷⁶ within 90 days, § 3-2A-04(b)(1)(i), unless the plaintiff obtains one of three statutory extensions of the time to file an expert’s certificate: § 3-2A-04(b)(5), § 3-2A-05(j), and § 3-2A-04(b)(1)(ii).[ 8 ] In addition to filing a certificate of qualified expert, the Statute also requires that the medical malpractice claimant file an attesting expert report. 9 ⁵⁷⁷ We focus our attention on the language of the Statute and apply the principles of statutory construction to discern the Legislature’s intended sanction for those situations in which a medical malpractice claimant fails to attach the attesting expert report to the certificate of qualified expert. Respondent argues that the Statute is ambiguous and must be construed strictly because it is in derogation of the common law. Petitioners concede that the Statute is in derogation of the common law but counter that “the principle of a strict construction must bend in this instance” because “the legislative purpose in this case is clear.” We acknowledge that, at common law, prior to the General Assembly’s enactment of the Health Care Malpractice Claims Statute, a claimant was not required to file a certificate of qualified expert in a medical malpractice case. In that sense, the certification requirement, added to § 3-2A-04(b)(1)(i)1. of the Health Care Malpractice Claims Statute in 1986, is in derogation of the common law, as both parties suggest.

Nonetheless, we agree with Petitioners that the principle of strict construction must bend in this instance because the statutory language is clear and evidences the Legislature’s intent to change the common law. Marriott Employees Fed. Credit Union, 346 Md. at 445 , 697 A.2d at 458 ; see Jones, 336 Md. at 261 , 647 A.2d at 1206-07 . As we stated supra, “[m]ost statutes, of course, change the common law, so that principle necessarily bends when there is a clear legislative intent to make a change.” Witte, 369 Md. at 533 , 801 A.2d at 169 . Therefore, we need not look beyond the Statute’s plain language.

Section 3-2A-04(b)(1)(i)1. states that a claim “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.” ⁵⁷⁸ We see no ambiguity in the language of this provision. The General Assembly, when it enacted this provision, clearly intended for claims to be dismissed if the claimant failed to file the certificate of qualified expert within 90 days of filing the complaint. We stated, in Edward W. McCready Mem’l Hosp., that the Statute “mandates that claimants arbitrate their claims before the [Health Care Office] as a condition precedent to maintaining a suit in a circuit court. The Statute defines the procedure under which such claims must be arbitrated.

A claimant’s filing of an expert’s certificate is an indispensable step in the [Health Care Office] arbitration process.” 330 Md. at 512 , 624 A.2d at 1257 . In accordance with our analysis in that case, and the clear language of the statute, we hold that the Statute clearly mandates dismissal, without prejudice, of a medical malpractice claim in which a claimant fails to file the required certificate of qualified expert within 90 days of filing the complaint. Respondent argues, and the Court of Special Appeals agreed, that while the Statute clearly mandates dismissal for failing to file the certificate within 90 days of the filing of the complaint, it fails to impose such a penalty for failure to attach an attesting expert report. They contend that the maxim expressio unius est exclusion alterius is dispositive; that because the Legislature mentioned mandatory dismissal in subsection (b)(l)(i) and not in subsection (b)(3), it intended for mandatory dismissal only when a claimant fails to file the certificate, and not when he or she fails to attach the expert report.

The Petitioners disagree and contend that because the Statute requires the attachment of the expert report to the certificate of qualified expert, the attachment represents a mandatory step in the certificate filing process, without which the certificate is incomplete, and the complaint must therefore be dismissed. We have said that [i]n dealing with statutory commands, including time provisions, courts often speak in terms of whether they are “mandatory” or merely “directory.” The suggestion implicit from such an analysis is that, if the