Watts v. King

KENNEY, J. This case involves a dental malpractice action filed against appellants, Dr. Richard Watts and Watts Dental Associates, P.C., by appellee, Michael King. Appellants challenge the Circuit Court for Prince George’s County’s denial of their motion to dismiss. Appellants present the following questions for our review: 1 1. If a dental malpractice claim is dismissed by the HCAO [Maryland Health Claims Arbitration Office] for failure to file a satisfactory certificate of qualified expert, has that claim been “arbitrated” as required by the Health Care Malpractice Claims Act? 2.

Did the circuit court err in refusing to dismiss plaintiffs dental malpractice and “emotional distress” claims when those claims were never arbitrated in the HCAO? We conclude that we have jurisdiction to address the fundamental issues in this case and shall reverse. ²⁹⁶ Factual and Procedural Background Richard Watts, a dentist licensed to practice in Maryland, operates Watts Dental Associates, P.C., a professional corporation doing business in Maryland. On June 23, 1994, Michael King visited appellants for dental care. Appellants performed dental services on King, including the injection of local anesthesia in the four quadrants of King’s mouth.

After the procedure, King experienced prolonged numbness and tingling in his face and was told by appellants to use a gentler toothpaste or to gargle with hot salt water. These remedies were unsuccessful. King suffered severe and permanent injuries, including paresthesia 2 and paralysis 3 of his mouth, lips, and tongue. King alleges that at no point prior to the administration of the local anesthesia did appellants provide any information as to the potential risks associated with the procedure.

He claims that appellants only informed him of the possibility of temporary numbness lasting one to three hours. On June 23, 1997, King filed a two-count malpractice claim with the Maryland Health Claims Arbitration Office (“HCAO”) 4 against appellants, alleging appellants’ failure to properly administer the anesthesia and their failure to obtain King’s informed consent regarding the dental procedure and the associated risks. On January 26, 1999, HCAO entered an order grantipg King until February 26, 1999, to secure new ²⁹⁷ counsel and file a new certificate attesting to appellants’ deviation from the standards of care. 5 The order stated that, if King did not obtain new counsel and file a new certificate by that date, it would dismiss his claim. 6 King failed to file the certificate, and, on April 1, 1999, appellants filed a motion to dismiss and a motion for summary judgment. On or about April 20, 1999, King designated Dr. Walter R. Talbott as his expert and submitted the new certificate. 7 Dr. Talbott’s certificate reads: I, WALTER R. TALBOTT, D.D.S., do hereby state and certify that I am a licensed dentist and I am competent to testify concerning accepted and recognized standards of dental care.

I have reviewed the dental records and other materials and available films concerning the care and treatment of Michael King by Dr. Richard Watts, D.D.S. and Watts Dental Associates and do hereby state and attest that in my professional opinion that Michael King suffered an injury to his upper right dental nerve during the course of treatment ²⁹⁸ by Dr. Richard Watts, D.D.S. and Watts Dental Associates. Examination reveals that Mr. King continues to suffer from after effects, including pain and numbness on the right of side [sic] of his face and upper jaw, as a result of his treatment by Dr. Richard Watts and Watts Dental Service. According to Mr. King this pain and numbness did not exist prior to treatment by Dr. Richard Watts, D.D.S. and Watts Dental Associates. Mr. King’s injuries resulted solely from and as a result of the services performed by Dr. Richard Watts, D.D.S. and Watts Dental Associates.

I further state that I do not annually devote more than 20% of my professional activities to activities that directly involve testimony in personal injury claims. I have prepared a report which is attached hereto and incorporated by reference. (See Exhibit A). The certificate makes no reference to a deviation from the standards of care that is the proximate cause of King’s injuries.

At Dr. Talbott’s deposition, he asserted that Dr. Watts did not deviate from the standards of care. 8 The following exchange took place between Dr. Talbott and appellants’ counsel: [APPELLANTS’ COUNSEL]: [D]o you have an opinion ... within a reasonable medical probability that Dr. Watt’s [sic] care of Mr. King deviated from the standard of care? [DR. TALBOTT]: I don’t think it did,.... [APPELLANTS’ COUNSEL]: So as you sit here today, you cannot say that Dr. Watts’ care of Mr. King in any way deviated from the standard of care; is that right? [DR. TALBOTT]: Just based on what Mr. King told me, I didn’t find anything that was a deviation, I just found the injury that was the result of being numb by probably competent well prepared dentists. ²⁹⁹ [APPELLANTS’ COUNSEL]: And you cannot say that a deviation from the standard of care caused the injury to the nerve? [DR. TALBOTT]: That’s correct.

On or about January 31, 2000, King received a final memorandum and order from the HCAO Panel Chairperson, granting summary judgment in favor of appellants on both counts of his complaint, granting appellants’ motion to dismiss the malpractice claim, and entering judgment in favor of appellants. 9 The HCAO Panel Chairperson found that the expert’s certificate failed to attest to the deviation from the standards of care, pursuant to the Health Care Malpractice Claims Act (“the Act:”). In addition, the Panel Chairperson found that King failed to offer evidence to prove that he would have withheld his consent upon full disclosure of the possible consequences based on the objective “reasonable person” standard. On February 25, 2000, King filed two pleadings in the circuit court: (1) a Complaint to Nullify Panel’s Award; and (2) a Notice of Rejection of Arbitration Award. 10 The complaint alleged medical malpractice, lack of informed consent, and emotional distress causes of action. Appellants responded by filing a motion to dismiss King’s claims for malpractice and ³⁰⁰ emotional distress. 11 They argued that King’s claims had never been arbitrated by the HCAO, as required by the Act.

CJ § 3-2A-02. The court, without a hearing, denied the motion to dismiss on October 4, 2000. On November 13, 2000, appellants filed this appeal, which on April 10, 2001, we dismissed as premature, without prejudice. to their right to timely note an appeal from an adverse final judgment or from an otherwise appealable judgment. Appellants then filed a motion to reconsider.

On August 3, 2001, we reinstated this appeal. Discussion I. Interlocutory Appeal King contends that there has been no final and appealable judgment issued by the court, and thus, this appeal is not ripe for adjudication. Appellants argue that the circuit court’s denial of their motion to dismiss, although an interlocutory decision, is immediately appealable because, in denying it, the court exceeded its jurisdiction. They state that initial jurisdiction over medical malpractice claims lies with HCAO pursuant to CJ § 3-2A-02 and that this case was not arbitrated by the HCAO.

Therefore, the circuit court’s denial of appellants’ motion to dismiss King’s dental malpractice and emotional distress claims was in error. King argues that the claim was arbitrated before the HCAO and that his filing of a petition for judicial review in the circuit court was proper. Maryland Rule 2-602(a) provides: (a) Generally. Except as provided in section (b) of this Rule, an order or .other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire ³⁰¹ claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

(b) When allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; or (2) pursuant to Rule 2 — 501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only. The general rule is that an interlocutory order or decision is not immediately appealable, but may be reviewed on appeal from a final judgment. Rule 8-202(a); Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989).

The reason for the rule is sound; it prevents repeated and piecemeal appeals and the protraction of litigation for indefinite periods. Tharp v. Disabled. Am. Veterans Dep't, 121 Md.App. 548, 564 , 710 A.2d 378 (1998).

In discussing final judgments, the Court of Appeals has noted: If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601. Rohrbeck, 318 Md. at 41 , 566 A.2d 767 . An order of a trial court denying a motion to dismiss is considered an interlocu ³⁰² tory order from which no appeal rights ordinarily lie until after entry of a final judgment. Montgomery County v. Ian Corp., 282 Md. 459, 467-68 , 385 A.2d 80 (1978).

The General Assembly has deemed certain interlocutory orders immediately appealable pursuant to CJ § 12-303. 12 ³⁰³ Other interlocutory orders have been judicially recognized as being immediately appealable: (1) a denial of a motion to dismiss on the basis of double jeopardy, Neal v. State, 272 Md. 323, 325-28 , 322 A.2d 887 (1974); (2) where, in a criminal case, the trial court refuses to enforce an agreement between the defendant and the State, see Jackson v. State, 358 Md. 259, 267-71 , 747 A.2d 1199 (2000); and most pertinent to this case, (3) an order that exceeds the jurisdiction of the trial court, see Waters v. Smith, 277 Md. 189, 196 , 352 A.2d 793 (1976); Schwartz v. Lilly, 53 Md.App. 318, 325 , 452 A.2d 1302 (1982). In Waters, 277 Md. 189 , 352 A.2d 793 , the parents of a minor child filed a medical malpractice action in the child’s name against several named medical providers. The plaintiffs sought to introduce the testimony of a medical expert by serving the defendants with supplemental answers to interrogatories announcing their intention to call the previously unidentified expert. The trial court agreed to prevent the testimony of the medical expert if the plaintiffs agreed to a mistrial and the case continued for further assignment.

After the mistrial in the Circuit Court for Baltimore County, the defendants moved to dismiss the case, to enter a default judgment, and to compel plaintiffs to pay costs. The trial court signed an order referring the matter to a master for assessment of costs and expenses and stayed all further proceedings “until further order of the Court.” From that order, the plaintiffs appealed to this Court. We dismissed the appeal in Waters v. Smith, 27 Md.App. 642 , 342 A.2d 8 (1975). The Court of Appeals granted certiorari.

The Waters alleged that the order, even if interlocutory, was immediately appealable for three reasons: 1) that appellants were denied an absolute constitutional right; 2) that the order exceeded the jurisdiction of the trial court; and 3) that the trial court abused its discretion by impairing established rights. Waters, 277 Md. at 195 , 352 A.2d 793 . In its decision, the Court acknowledged that an appeal would immediately lie from an order that exceeded the trial court’s jurisdiction but, citing Cohen v. Willett, 269 Md. 194, 195 , 304 A.2d 824, 825 (1973), said that the rule “applies only ‘[w]here the issue on ³⁰⁴ appeal is not the wisdom or correctness of an order, but rather whether the lower court had power to pass an order....’” Waters, 277 Md. at 196 , 352 A.2d 793 . The court affirmed our decision dismissing the appeal, concluding that the circuit court’s order was not a final order and that the appeal was not permitted by CJ § 12-303.

Waters, 277 Md. at 197-98 , 352 A.2d 793 . In Schwartz, 53 Md.App. 318 , 452 A.2d 1302 , Erol and Nancy Lilly filed a malpractice action against Dr. Schwartz. Dr. Schwartz filed a motion raising a preliminary objection based on plaintiffs’ failure to file their claim with the HCAO. The trial court denied the motion and ordered that the proceedings be transferred to HCAO.

This Court vacated the circuit court’s order and remanded the case with instructions to grant the motion. In doing so, however, we said that “an appeal from an interlocutory order that exceeds the jurisdiction of the trial court may be maintained.” Id., at 325, 452 A.2d 1302 . We are persuaded that the denial of appellants’ motion to dismiss constituted an interlocutory order that is immediately appealable even though other claims, the court’s jurisdiction over which are not challenged, are still pending in the trial court. We reach this conclusion because King failed to invoke the jurisdiction of the trial court by not arbitrating his claim as required by the Act.

We explain. In Schwartz, supra, we said “initial jurisdiction” in a medical malpractice suit subject to the Act “exclusively belongs to the HCAO.” Schwartz, 53 Md.App. at 322 , 452 A.2d 1302 . This concept of “initial jurisdiction” was explained in Oxtoby v. McGowan, 294 Md. 83, 87 , 447 A.2d 860 (1982), and Bishop v. Holy Cross Hosp., 44 Md.App. 688, 692 , 410 A.2d 630 (1980), in terms of a condition precedent to the institution of a court action and as being analogous to the doctrine of exhaustion of administrative remedies. According to Judge Rodowsky, writing for the Court in Oxtoby , and referring to the doctrine of exhaustion of administrative remedies: “So strong is this public policy that this Court will, sua sponte, vacate judg- ³⁰⁵ merit and order an action dismissed where the litigants have not followed the special statutory procedure.” Oxtoby, 294 Md. at 91 , 447 A.2d 860 (emphasis added).

He went on to say that “[t]he public policy embodied in the Act is equally as strong.” Id. at 91 , 447 A.2d 860 (emphasis added). Appellants’ argument is that King did not follow the required statutory procedures prior to filing his action in the circuit court, and therefore, the claim was not arbitrated. If the claim was not arbitrated, the subject matter jurisdiction of the trial court could not be invoked. Thus, jurisdiction was not available for the adjudication of King’s claim and dismissal was the appropriate response.

Although subject matter jurisdiction over a medical malpractice claim may reside in the circuit court, the legislative prohibition against the exercise of that jurisdiction in medical malpractice claims subject to the Act is the functional equivalent of a lack of jurisdiction. An interlocutory appeal is appropriate because entertaining King’s unarbitrated claims would, in effect, exceed the circuit court’s jurisdiction, in that the condition precedent to the exercise of its jurisdiction has not been satisfied.

II

Arbitration The Medical Malpractice Claim Appellants contend that King’s claims were not arbitrated before the HCAO pursuant to the Act because the certificate of Kang’s qualified expert was “unsatisfactory” in that it did not establish within the appropriate degree of medical certainty that there had been a violation of the appropriate standard of care. King argues that the claim was arbitrated before the HCAO, in good faith, because there was no “wilful or deliberate delay, or attempt to avoid arbitration.” He contends that he properly participated in the arbitration process, filed a certificate of a qualified expert, and made every attempt to arbitrate this matter. CJ § 3-2A-02(a)(l), requires that [a]ll claims, suits, and actions, including cross claims, third-party claims, and actions under Subtitle 9 of this ³⁰⁶ title, 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 are subject to and shall be governed by the provisions of this subtitle. [Emphasis added.] See also Edward W. McCready Memorial Hosp. v. Hauser, 330 Md. 497, 500 , 624 A.2d 1249 (1993). Therefore, unless waived in accordance with the statute, “[a]ll claims” must be submitted to mandatory arbitration as a pre-condition to any court action. 13 The arbitration process can be waived pursuant to CJ § 3-2A-06A(a), which provides that “[a]t any time before the hearing of a claim with the Health Claims Arbitration Office, the parties mutually may agree to waive arbitration of the claim,” or unilaterally pursuant to either CJ § 3-2A-06B (b), which provides that “any claimant may waive arbitration at any time after filing the certificate of qualified expert[,]” or CJ § 3-2A-06B(c), which provides that “any defendant may waive arbitration at any time after the claimant has filed the certificate of qualified expert.” The duty of the claimant is to “file his claim” with the Director of the HCAO.

CJ § 3-2A-04(a). CJ § 3-2A-02(c) provides: 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. A claimant is required to file a certificate of a qualified expert attesting that the licensed professional against whom the claim was filed breached the standard of care. CJ § 3-2A-04(b)(l)(i).

As we have observed, absent a mutual agreement, ³⁰⁷ there can be no unilateral avoidance of mandatory arbitration until such time as the claimant has filed the “certificate of qualified expert.” This demonstrates the importance to the arbitration process of an expert’s certificate supporting the claimant’s position. The Court of Appeals has held that the filing of the statement of claim, pursuant to CJ § 3-2A-04(a), without presentation of any evidence before a medical malpractice arbitration panel, does not satisfy the condition precedent of arbitration. In Bailey v. Woel, 302 Md. 38, 40 , 485 A.2d 265 (1984), claimant’s counsel declined to put on any testimony before the arbitration panel and refused to provide a reason for that decision. Dismissal by the circuit court of such a claim was determined to be the proper action.

Bailey, 302 Md. at 45 , 485 A.2d 265 . In McCready Memorial Hosp., supra, the Court of Appeals affirmed the decision of the circuit court, dismissing the plaintiffs claim for failure to arbitrate, based on a failure to file a certificate of