Debbas v. Nelson

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IN THE COURT OF APPEALS OF MARYLAND No. 10 September Term 2005 __________________________________ ELIE G . DEBB AS, et al. V. THEL MA N ELSO N, et al. __________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: November 9, 2005 This case prese nts us with the task of d etermining whether a facially valid C ertificate of Qualified Expert, a prerequisite to instituting a medical malpractice action, can be invalidated by subseque nt develop ments, spec ifically the allegedly inconsistent deposition testimony of the certifying medical expert. W e hold that the Health C are Malpractice Claims Act does not permit such collateral attack s based on events arising after the Certificate has been filed. As such, Respondents Certif icate of Q ualified Ex pert was n ot substantially defective, and the Circuit Court erroneously granted Petitioner D r. Elie Debba s s motion to dismiss and Petition er Fort W ashington Hospital s motion for summary judgment on that basis. We have also been asked to explore whethe r a genuine d ispute of m aterial fact exis ts regarding the v icari ous l iabil ity of Petitioner Fort W ashington Hospital. W e find that a genuine dispute of material fact remains concerning whether the defendant physicians were agents of th e Ho spita l for the p urpo ses o f vic arious lia bility. Therefore, we conclude that the Circuit C ourt erro neous ly granted the Ho spital s m otion fo r summ ary judgm ent. We shall affirm the decision of the Court of Special Appeals. Facts On May 10, 2000, Madeline V. Lyons wen t to the emergency room at Fort Washington Hosp ital com plaining of we akness and fa tigue. D r. Hengameh N. Mesbahi examined her, ordered various blood tests, and diagnosed Ms. Lyons with mild anemia. He wrote her a prescription for iron sup plements and adv ised her to follow up w ith her primary care physician, Dr. Michae l Sidarous. Two d ays later, Ms. Lyons visited Dr. Sidarous and presented symptoms similar to those about which she had complained during her emergency room examina tion. Dr. Sida rous diagn osed M s. Lyons with mild cong estive heart failure, prescribed medication , and informed her that she should return to the Hospital if her symptoms worse ned. In the early hours of May 16, 20 00, Ms. L yons awok e with acu te burning abdomin al pain and within several hours was admitted to the emergency room at the Hospital, where she w as treate d by Dr. P atrick W. Daly, Director of the H ospital s Emergency Medical De partment, Dr. Sidarous, and Dr. Elie G. Debbas, Chief of Surgery at the Ho spital an d the the n Presid ent of th e Med ical Staf f. She d ied later th at even ing. On April 8, 2002, Ms. Lyons s surviving five daughters (the Respondents ) filed a Statement of Claim against Dr. Debbas, Dr. Sidarous, and th e Hospita l with the H ealth Claims Arbitration O ffice ( H CAO ), pursuan t to the Ma ryland Health Care M alpractice Claims Act ( the A ct ), Md. C ode (197 4, 1998 R epl. Vol., 2000 Supp.), §§ 3-2A-01 to 3-2A09 of the Co urts and Judicial Proceedings Article. Ac compan ying the Statem ent of Cla im was a Certificate of Qualified Expert, executed by Dr. Ann M. Gordon, attesting to alleged deviations from the proper stand ard of care committed by Dr. Sidarous, Dr. Debbas, and the Hospital. Respondents also simultaneously filed an Election to Waive Arbitration pursuant to Maryland Code (2002 Repl. Vol.), § 3-2A-06B of the Courts and Judicial Proceedings Article.1 On Ap ril 30, 2002, R esponde nts filed their co mplaint in the Circuit Court for Prince 1 Section 3-2A-06B of the Courts and Judicial Proceedings Article provides in pertinent part: (contin ued...) 2 Georg e s Co unty. The defendant physicians and the Hospital deposed Dr. Gordon, the certifying physician, on November 8, 2002. The following discourse occurred among Dr. Gordon and counsel fo r Dr. Sidaro us, Dr. De bbas, and th e Hospita l: [COUNSEL FOR DR. SIDAROUS]: Based on your review of the materials, have you formed opinions that you hold w ith reasonable medical probability as to whethe r any health care provider defenda nt deviated from stan dard of ca re in their care and treatment of Madeline Lyons? [DR. GORDO N]: Yes, I do. *** [COUNSEL FOR DR. SIDAR OUS]: I think I had asked you who you hold such opinions with regard to. [DR. GOR DON]: Dr. Sidarous. [COUNSEL FOR DR. SIDAROUS]: Have you formed any opinions with regard to any other health care provider beyond him? [DR. GORDO N]: No. *** 1 (...continued) (b)(1) Subject to the time limitation under subsection (d) of this section, any claimant may waive arb itration at any time after filing the certificate of qualified expert required by § 3-2A-04(b) of this subtitle by filing w ith the Director a w ritten election to waive arbitration sign ed by the claim ant or the claimant s attorney of record in the arbitration proceeding. 3 [COUNSEL FOR D R. DEBB AS]: Dr. Go rdon, I ll be very short. I represent Dr. Debbas, the surgeon in this case, and your counsel was kind enough to say at the outset of your deposition you don t intend to render any opinions regarding my client, Dr. Debba s, is that correct? [DR. GOR DON ]: That s correct. I believe that there will be other medical experts who will be addressing those opinions and issues. *** [COUNSEL FOR FO RT WA SHING TON H OSPITA L]: Are you going to be rendering any opinions, Doctor, that Fort Washington Medical Center or its employees deviated from the standard of care? [DR. GOR DON ]: I would probably defer that to the experts that the plaintiff attorneys have concerning the emergency room visit on 5/16 I believe. [COUNSEL FOR THE H OSPITAL]: On 5/16? [DR. GOR DON]: Yes. [COUNSEL FOR THE HO SPITAL]: O kay. So you will not be rendering any opinions then. You re going to defer to other experts? [DR. G ORD ON]: T hat s correct. The litigation proceeded on Respondents First Amended Complaint, which was filed on November 22, 2002. On Ju ne 3, 2003, Dr. Debba s filed a mo tion to dismis s based on his assertion that the above-quoted colloquy invalidated Respondents Certificate of Qualified Expert. On June 18, 2003, the Hospital filed a motion for summary judgment based upon the same argument posited by Dr. Debbas as well as the assertion that the record could not 4 support a finding of negligence by the Hospital.2 Respon dents filed a n oppositio n to both motions and appended an affida vit by Dr. Go rdon in w hich she rea ffirmed th e statemen ts contained in her certification. On Au gust 29, 2003, the C ircuit Court granted the motion to dismiss and the motion for summary judgment on the basis that Respondents had failed to establish a prima fac ie showing of apparent authority. Respondents filed m otions to reconsider or amend the judgments, all of which were denied by the Circuit Court on October 2, 2003 and then filed their notice of appeal to the Court of Special Appeals on October 27, 2003. In a reported opinion, the Court of Special Appeals determined that Respondents Certificate of Qualified Expert satisfied the Act s requirem ents and rev ersed the C ircuit Court s dismiss al of the comp laint aga inst Dr. D ebbas. Nelson v. Debbas, 160 Md. A pp. 194, 208, 862 A.2d 1083, 1091 (20 04). Moreove r, the appellate court held that the record supported a finding that there existed a dispute of material fact relating to the apparent authority of the physicians w ith respect to th e Hospita l and the po tential vicariou s liability of the Hospital. In part, the Court of Special Appeals relied upon the language in the medical consent form that Ms. Lyons was required to sign prior to her admission to the emergency 2 Although Dr. Patrick D aly, M.D., hea d of the E mergenc y Departme nt of the H ospital, and Dr. Me sbahi, M s. Lyons s initial trea ting physician, w ere not nam ed in the C ertificate of Qualified Expe rt, Respondents, wh en amending th eir complaint, added D r. Daly and Dr. Mesbahi as additional defendants. Dr. Daly and Dr. Mesbahi also filed motions to dismiss, which were g ranted b y the Circ uit Cou rt. Respondents did not challenge those dismissals on appea l. Dr. Sid arous d id not fil e a mo tion to d ismiss o r a motio n for su mmar y judgm ent. 5 room, w hich prov ided in pertin ent part: MEDICAL CONSENT: I hereby voluntarily consent to such diagnostic procedu res and ho spital care an d to such therap eutic treatment by the doctors of the medical staff of Fort Washington Hospital, which in their judgment becomes necessary while I am an Emerge ncy Departm ent patient or an inpatient in sa id hospital. The appellate court also relied on the facts that Dr. Debbas was the President of the Medical Staff and Chief of Surgery at the Hospital at the time of Ms. Lyons s a dmission, and that Dr. Daly was the Director of Emergency Med icine. Based on these fa cts, the interme diate appellate court determined that the evidence of record was sufficient to create a genuine dispute of material fact regarding the issue of apparent author ity and vic arious lia bility. Id. at 213, 862 A.2d at 1094. On January 21 and 24, 20 05, Dr. D ebbas an d the Ho spital filed in this Court se parate petitions for writs of certiorari. Dr. Debbas presented th e following issue for our consideration: 1. Whether the Court of Special Appeals erred in reversing the trial court s decision to dismiss plaintiff s medical negligence suit on the grounds that an opinion given as part of a C ertificate of a Ce rtifyin g Ex pert that i s sub sequ ently disavowed during deposition testimony renders the Certificate invalid and therefore must be dismissed. The Hospital presented two issues for our review: 1. Did the Court of Special Appea ls err when it concluded that the Affid avit of A nn M . Gord on, M.D., was not su bstantially defective and complied with the Certificate of Qualified Expert requirements of the Maryland Health Care Malpractice Claims 6 Act. 2. Did the Court o f Special A ppeals err w hen it concluded that there was sufficient evidence to create a dispute of material fact on the question of whe ther there w as an agen cy relationship between the attending emergency room physicians, who administere d care to M s. Lyons, at the H ospital. On April 7, 2005, w e grante d the pe titions an d issued the wri ts. Debbas v. Nelson, 386 M d. 180, 8 72 A.2 d 46 (2 005). We hold that the Certificate of Qualified Expert filed by the Respondents was not defective due to events arising subsequent to its filing and that the Circu it Court erron eously granted Dr. Debbas s motion to dismiss and the Hospital s motion for summary judgment on that basis. Moreover, we hold that sufficient facts exist in the record to create a genuine dispute of material f act concer ning wh ether the ph ysicians and su rgeons inv olved in this matter were age nts of the Ho spital, thus rendering summary judgment improper. Therefore, we affirm the judgment of the Court of Special Appeals. In reviewing the underlying grant of a motion to d ismiss, we m ust assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from th ose alleg ations. Reichs Ford Road Joint Venture v. State Roads Commission of the State Highway Administration, 388 Md. 500, 509, 880 A.2d 307, 312 (2005); Adamson v. Correctional Medical Services, 359 Md. 238, 246, 753 A.2d 501, 505 (2000); Allied Inv. Corp . v. Jasen , 354 M d. 547, 555 , 731 A.2d 957, 961 (1999); Stone v. Chicago Title Ins. Co. of Maryland, 330 Md. 329, 333, 624 A.2d 496, 498 (1993). In the 7 end, [d]ismissal is proper only if the complaint would fail to provide the plaintiff with a judicial remedy. Reichs Ford Road Joint Venture, 388 Md. at 509, 880 A.2d at 312, citing Bobo v. State, 346 M d. 706, 7 09, 697 A.2d 1 371, 13 73 (19 97). See als o Allied Inv. Co rp., 354 Md. at 555, 731 A.2d at 961. In sum, because we must deem the facts to be true, our task is conf ined to dete rmining w hether the trial c ourt was le gally correct in its de cision to dismiss. See All ied Inv. C orp., 354 Md. at 555, 731 A.2d at 96 1; Bobo, 346 Md. at 709, 697 A.2d a t 1373. With respect to the Hospital s motion for summary judgment, we must determine, initia lly, wheth er a disp ute of m aterial fa ct exists. M d. Rule 2-50 1(f) (2002 ); Serio v. Baltimore County , 384 M d. 373, 3 88, 863 A.2d 952, 96 1 (2004); O Connor v. Baltimore County , 382 Md. 102, 110, 854 A.2d 11 91, 1196 (2004); Todd v. MT A, 373 Md. 149, 15455, 816 A.2d 93 0, 933 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707, 721 (200 2); Schmerling v. Injured Workers Ins. Fund, 368 Md. 434, 443, 795 A.2d 715, 720 (200 2); see Fister v. Allstate Life Ins. Co., 366 Md. 201, 209, 783 A.2d 194, 199 (2001); Lippert v. Jung, 366 Md. 221, 227, 783 A.2 d 206, 20 9 (2001). A materia l fact is a fact the reso lution of w hich will somehow affect the outcome of the case. Todd, 373 Md. at 155, 816 A.2d at 933, quoting Matthew s v. How ell, 359 M d. 152, 161, 753 A.2d 69, 73 (2000). The facts properly before the court as w ell as any reason able inferences that may be drawn from them must be construed in the light most favorable to the non-movin g party. Serio, 384 Md. at 388, 863 A.2d at 961; O Co nnor, 382 Md. at 11 1, 854 A .2d at 1196 ; Todd, 8 373 Md. at 155, 816 A.2d at 933; Okw a v. Harper, 360 Md. 161, 178, 757 A.2d 118, 127 (2000). If the record reveals that a material fact is in dispute, summary judgment is not appropriate. Serio, 384 M d. at 388, 86 3 A.2d a t 961; O Co nnor, 382 Md. at 111, 854 A.2d at 1196; Todd, 373 M d. at 155, 816 A.2d at 933; Okwa, 360 Md. at 178, 757 A.2d at 127. If no material facts are disputed, howe ver, then we mu st determine whethe r the circuit court correctly granted summ ary judgm ent as a m atter of la w. See Md. R ule 2-501(f); Serio, 384 Md. at 388, 863 A.2d at 961; O Co nnor, 382 Md. at 111, 854 A.2d at 1197; Todd, 373 Md. at 155, 816 A.2d at 933; Beyer, 369 M d. at 360, 80 0 A.2d a t 721; Schmerling, 368 Md. at 443, 795 A.2d at 720. Discussion Dr. Debbas and the Hosp ital argue that w hen Dr. G ordon, in her deposition, did not offer opinions with respect to alleged dev iations from the standard o f care committed b y Dr. Debbas and the staff of the Hospital, she rescinded the opinions that she had expressed in the Certificate of Qualified Expert filed by Respon dents, thereb y rendering the Certificate invalid. According to D r. Debbas and the H ospital, the Court of Special Appeals s holding that the Certifica te was still eff ective significantly diminishes the Certificate s r ole in preventing specious claims from con suming limited judicial resource s. Moreover, D r. Debbas and the Hospital contend that the Court of Specia l Appea ls erred in find ing that a deficient Certificate may be remedied with an affidavit from the certifying exp ert after the statutory deadline for filing a Certificate has lapsed. They note that the Maryland Health 9 Care Malpra ctice Claims Act do es not permit such a rem edy and thus, it is improper. The Hospital also argues that the Court of Spe cial Appeals erred in ruling tha t there was a dispute of material fact with respect to Respondents allegations of apparen t age ncy. Specific ally, the Hospital contends that the record lacks any evidence concerning Respondents claim that the Hospital re presented th at the physicians were its agents and that Ms. L yons relie d on tho se repre sentatio ns. It asserts that Respondents failed to establish a prima fac ie case of agenc y and the refore t heir theo ry of liability m ust fail. Con vers ely, Respondents contend that the holding of the Court of Special Appea ls is consistent with the legislative intent of the Maryland Health Care Malpractice Claims Act because the Certificate of Qualified Expert was valid at the time it w as filed and at all subsequent times. Mo reover, Re sponden ts assert that the affidavit submitted by Dr. Gordon after the depos ition was p roperly consid ered by the C ourt of Sp ecial Appeals because D r. Gord on nev er explic itly recante d her ce rtifying op inion. Respon dents also argue that the Court of Special Appeals was correct in determining that there was sufficient evidence to present a genuine dispute of material fact on the issue of the potential v icarious liability of the Hospital including the language of the consent form signed by Ms. Lyons and Dr. Deb bas s title as President of the Medical Staff and Chief of Surgery at the Hos pital. Furtherm ore, accord ing to Responden ts, the dismissal of Dr. Daly, on grounds u nrelated to the question of his negligence, does not preclude Respondents from relying on the theory of apparent agency in holding the Hospital liable under a theory of 10 respondeat superior. Even if the dismissal of Dr . Daly could preclude a claim against the Hospital based upon his negligence, Respondents assert that the Hospital could still be found to be vicariou sly liable due to Dr. Debbas s deviation from the applicable stand ard of care and the theory of Dr. De bbas s appare nt agen cy. The History of the Health Claims Arbitration Act In the 1970's, medical malpractice insurers faced a dramatic increase in the number of malpractice suits being filed and an alarming rise in the dollar amounts of malpractice verdicts . James Kevin MacAlister and A lfred L . Scanla n, Jr., Health Claims Arbitration in Maryland: The Experiment has Failed, 14 U. B ALT . L. R EV. 481, 488 (1985). The proliferation of litigation was the result of several complex social factors, including the erosion of the traditional doctor-patient bond, the increasing use of spec ialists for care as oppos ed to ge neral pr actitione rs, and th e increa sing litigio us natu re of so ciety. Id. Medica l malpractice insurers initially respo nded to the dramatic rise in litigation by raising premium rates for physicians. When rate increases were no longer sufficient to offset the increased c osts associate d with def ending malpractice suits, carriers began to cease underwriting medical malpractice insurance in Maryland. See St. Paul Fire & Marine Ins. Co. v. Insurance Commissioner, 275 M d. 130, 3 39 A.2 d 291 ( 1975) . In 1975, St. Paul Fire & Marine Insurance Comp any ( St. Paul ), then Maryland s largest malpractice insuran ce carrier, info rmed the S tate Insuranc e Comm issioner that it intended to withdraw from the medical malpractice insurance market because it no longer 11 considered it profita ble. St. Paul Fire & Marine Ins. Co. v. Insurance Commissioner, 275 Md. 130, 134, 339 A.2d 291, 294 (1975). The State Insurance Commissioner issued an order proscribing St. Paul s withdrawal and requiring it to continue to provide insurance coverage. Id. at 135, 339 A.2d at 294. The Baltimore City Court affirmed the Insurance Commissione r s order. Id. This Court reversed, stating that the Insurance Commissioner could not require St. Pau l to prov ide me dical m alpractic e insura nce, id. at 144, 339 A.2d at 299, an d issued an imm ediate o rder. Id. at 132, 3 39 A.2 d at 292 . The General Assembly responded by forming a committee to study the methods of reforming the legal process of pursuing claims of medical malpractice. The Medical Malpractice Insurance Study Committee was appointed on July 23, 1975, and on January 6, 1976, issued its report. Report of the Medical Malpractice Insurance Study Committee (January, 1976). The Committee proposed the adoption of a mandatory medical malpractice arbitration system, which, it asserted, would improve traditional tort litigation by discouraging the pursuit of non-meritorious claims because, through the arbitration process, weaknesses in such a case w ould be reveale d. Id. at 3-8. Moreover, the Committee opined that mandatory arbitration would provide a means for obtaining expert opinion on the question of negligen ce, which w ould lead to more reliab le decisions a s well as rea sonable and predictable award s. Id. at 4 & 8. The C ommittee appen ded proposed leg islation to the report, which was enacted by the General Assembly without substantive change as 1976 Md. 12 Laws, Chap. 235 and codified as Maryland Code (1974, 1977 Supp.), §§ 3-2A-01 et seq. of the Co urts and Judicia l Proce edings Article. Mandatory arbitration became the rule; its process was described by Judge Robert L. Karwacki, writing for this Court, as follows: All malpractice claims against he alth care providers seeking damages of more than $5,000 are subject to the provisions of the Act, and must be initially filed, as must the responses to them, with the Health Claims Arbitration Office, created by the statute as a unit in the Executive Department. The office, acting through its director, refers all issues raised to a three-member arbitration panel, chosen at random from lists of qualified persons prepared and maintained by the director; the panel for each claim is to be composed of an attorney, a health care provider, and a m embe r of the g eneral p ublic. T he arbitration panel determines whether the health care provider is liable to the claimant and if so the extent of the damage s, and incorp orates in its award an assessme nt of costs, inc luding arbitrators fees; if no party rejects the award, it becomes final and binding, is filed by the director with the appropriate circuit court, and when confirmed by that court constitutes a final judgment. Neither party, however, is in any way bound to accept the award; it may be rejected for any reason within ninety days. If a party desires to contest the decision of the panel, he must file an action in the appropriate court during the ninety-day period to nullify the award, and jury trial may be elected by either party. Any contention that an award should be vacated on the grounds of corruption, fraud, partiality or the like is to be decided by the court prior to trial. Un less the aw ard is thus va cated, it is admissible as evidence at the trial and presu med to be correct, with the burden of prov ing the con trary falling on the party rejecting it; should the award be vacated, trial of the cas e shall proceed a s if there had been no award. In addition, attorneys fees are subjected to the approval respectively of the arbitration panel and the court. Carrion v. Linzey, 342 Md. 266, 276-77, 675 A.2d 527, 531-32 (1996), quoting Attorney 13 General v. Johnson, 282 Md. 274 , 279-80, 385 A .2d 57, 60-61 (197 8). The imposition o f arbitration as a condition p recedent to instituting suit in C ircuit Court, neverthele ss, did little to reso lve the c risis. In 1983, the General Assembly adopted a Senate Jo int Resolutio n, 1983 M d. Laws , J. Res. 9, decla ring that the cost o f medical liability insurance had increased ten-fold since 1975 and requested that the Governor appoint a comm ission to exam ine the is sue. Witte v. Azarian, 369 Md. 518, 528, 801 A.2d 160, 166 (2002 ). The Comm ission on H ealth Care P roviders P rofessiona l Liability Insurance, which was appointed pursuant to the Joint Resolution, as stated in its 1984 R eport to the Govern or, developed several recommendations, including (1) abolition of the arbitration scheme created in 1976, (2) partial abolition of the collateral source rule,3 (3) a number of procedural changes designed to streamline the arbitration procedure and allow parties to waive arbitration completely if it were not abolished, and (4) a requirement that a malpractice claimant file a certificate of a qualified expert within ninety days after the filing of a claim attesting to a departure from the standard of care or of informed consent, as some other jurisdictions had enacted. Some of the Commission s recommendations, including the requirement that a claim 3 The collateral source rule permits an injured person to recover the full amount of his or her provable damages, regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeasor. Haischer v. CSX T ransp., Inc., 381 Md. 119, 1 32, 848 A.2d 620, 628-29 (2004), quoting Motor Vehicle Admin. v. Seidel, 326 M d. 237, 2 53, 604 A.2d 4 73, 481 (1992 ). 14 be dismisse d if the claim ant failed to file a certificate from a qualified expert attesting to a departure from the s tandards o f care with in ninety days from the date that the claim was filed with the Health Care A rbitration Office, were presented to the 1984 session of the General Assemb ly as Senate Bill 16. The Bill, however, did not pass, which resulted in the formation of another study group, the Joint Executive/Legislative Task Force on Medical Malpractice Insuran ce. Witte, 369 Md. at 529, 801 A.2d at 166. The Task Force, in its December 1985 Report, noted that, since 1984, there had been increases ranging fr om 30% to 250% in medical malpractice liability insurance premiums for physicians in certain specialties. Unlike the 1984 C ommission, how ever, the Task F orce did not address whether the arbitration process should be abolished, but rather, presented a number of recomm endations s imilar to those made by the Comm ission to make the process more efficient. The Task Force reintroduced the requirement of a Certificate of Qualified Expert, to be filed by both the claimant and the defenda nt, which w as intended to eliminate excessive damages and reduce the frequency of claims, and which consistently has been considered as serving a gatekeeping function. Report of the Joint Executive/Legislative Task Force in Medical Malpractice Insurance, at 27 & 30 (Dec . 1985). See Carrion, 342 Md. at 275, 675 A.2d at 531 (noting that the elements of the arbitration system, including the Certificate, acted to discourage litigation of n on-meritorious claims ); McCready v. Memorial Hospital, 330 Md. 497, 512, 624 A.2d 1249, 1256-57 (1993) (stating that the Certificate is a central step in discouraging litigation of meritless claims through arbitration). 15 The Certificate re quiremen t was prese nted to the G eneral As sembly in Sen ate Bill 559. In pertinent part, Senate Bill 559 provided that a claim filed after Ju ly 1, 1986, wo uld be dismissed if , within nine ty days after the date that the claim was filed, the claimant did not file a Certificate of Qua lified Expert attesting to a d eparture fro m the stand ard of care with the Health Claims Arbitration Office. 1986 Md. Laws, Chap. 640. Senate Bill 559, enacted as 1986 Maryland Law, chapter 640, was codified as Ma ryland C ode (19 74, 198 4 Rep l. Vol., 1987 Cum. Supp.), Section 3-2A-04 of the Courts and Judicial Proceedings Article, which provides in pertinent pa rt: (b) Filing and service of certificate of q ualified expe rt. Unless the sole issue in the claim is la ck of info rmed con sent: (1)(i) Except as provide d in subpa ragraph (ii) of this paragraph, a claim filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant 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. The claimant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in acco rdance with th e Mar yland Ru les. *** (4) The attesting expert may not devote annually more than 20 percent of the expert s professional activities to activities that directly involve testimony in personal injury claims. Md. Code (1974 , 1984 R epl. Vo l., 1987 Cum. Supp.), § 3-2A-04(b)(1) and (4) of the Courts and Judicial Proceedings Article. During the Legislature s 1995 session, the General Assembly enacted another major 16 change in the Health Claims Arbitration Act by permitting waiver of the entire arbitration process by either party. 1995 Md. Laws, C hap. 582, c odified as M d. Code (1 974, 200 2 Repl. Vol.), § 3-2A -06B o f the C ourts an d Judic ial Proc eeding s Article . With this history in mind, we turn to the case sub judice. Certificate of Qualified Expert Petitioner Debb as, in his motion to dismiss, and the Hospital, in its motion for summary judgment, challenge the adequacy of Respondents Certificate of Qualified Expe rt.4 Specific ally, Petitioners assert that Respondents expert recanted her opinions regarding the negligence of Dr. D ebbas an d the staff o f the Hos pital during her deposition testimony in preparation for trial. To de termine w hether Re sponden ts Certificate o f Qualifie d Expert is subject to invalidation by subsequent events, we must first examine the applicable provisions of the He alth Care M alpractice C laims Act. Section 3-2A-04 of the Courts and Judicial Pro ceedings A rticle provides in pertinent part: (b)(1)(i) Except as provide d in subpa ragraph (ii) o f this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant fails to file a certificate of qualified expert w ith the Director [of the Health Care Arbitration O ffice] attesting to departure from standards of 4 In their briefs, Petitioners also raise Respondents alleged failure to file a report with the Health Claims Arbitration Office in accordance with Section 3-2A-04 (b)(3) as appropriate grounds for the Circuit Court s dismissal and grant of summary judgment, but did not raise the iss ue in their petitions for w rits of certiorari. Accordingly, the issue is not before us. See Md. Rule 8-1 31 (b). 17 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 complain t. *** (3) Discovery is available as to the basis of the certificate. Md. Code (1974, 1998 Repl. Vol., 2000 Supp.), §§ 3-2A-04 (b) (1)(i) and (3 ) of the Co urts and Judicial Proceedings Article. When attempting to ascertain the meaning of a statute, we first look to the n ormal, plain meaning of the lan guage. . . . If that langua ge is clear and unambiguous, we need not look beyond the pro vision's te rms. . . . Bienkowski v. Brooks, 386 Md. 516, 536, 873 A.2d 1122, 1134 (2005); Davis v. Slater, 383 Md. 599 , 604, 861 A.2d 7 8, 81 (2004). M oreover, when the meaning of a word or phrase in a constitutional or statutory provision is perfectly clear, this Court has consistently refused to give that word or phrase a different meaning on such theories that a different meaning would make the provision more workable, or more consistent with a litigant's v iew of go od public policy, or more in tune with modern times, or that the framers of the provision did not actually mean what th ey wrote . Bienkowski, 386 Md. at 537, 873 A.2d at 1134. The statutory langua ge of Sec tion 3-2A -04(b) exp licates the requ irements fo r a valid Certificate of Qua lified Expe rt; it must be filed within nine ty days after the claim is submitted to the Health Care Arbitration Office and attest[] to [the] departure from standards of care, and that the depa rture from standards of care is the proximate cause of the alleged injury. Md. Code, (1974, 1998 Repl. Vol., 2000 Supp.), § 3-2A-04 (b)(1)(i) of the 18 Courts and Judicial Proceedings A rticle. The statute also provides that the certifying expe rt may not devote more than 20% of his or her professional activities to activities that directly involve testimony in personal injury claims. Id. at §3-2 A-04 (b)(4). In the present case, Respondents Certificate of Qualified Expert states: I, Ann M. Gordon, M .D., hereby certify as follows: I am a practicing physician, board certified in Internal Medicine. I have reviewed the medical records of Madeline V. Lyons. From my review o f the record s it is my opinion that Michael G. Sidarous, M.D., Elie G. Debbas, M.D., and the staff at Fort Washington Hospital deviated from applicable standards of medical care in connection with their care and treatment of Madeline V. Lyons. It is my further opinion that the deviations from the standard of care were the proximate cause of the death of Madeline V. Lyons. I do not annually devote more than 20% of my professional work to activities that inv olve testimony in personal injury claims. I have read the above and certify that it is true and correct to the best of my knowledge, information and belief. The parties concede that the Certificate was timely filed and do not dispute that Dr. Gordon is qualified to render an opinion regarding Petitioners conduct under the terms of Section 3-2A-04. Moreover, in the Certificate, Dr. Gordon attested specifically to the named defendants deviations f rom the applicable standard of medical care and opined that such deviations were the proximate cause for Ms. Lyons s demise. No one suggests that Respo ndents did not file a va lid Certi ficate o f Qua lified E xpert b ased up on the a bove. Petitioners argue that S ection 3-2A-04 (b)(3) prov ides for disc overy with res pect to 19 the basis of the certificate, and therefore, a collateral attack based on events sub sequent to the Certificate s filing is appropriate. Essentially, Petitioners are arguing that the General Assemb ly intended discovery to invalidate an otherwise facially valid certificate. Of course, if the General Assembly had intended discovery or any subsequent event to be used as a mechanism to invalidate an otherwise valid Certificate, it could have so stated and converted the recognized gatekeeping function of the Certificate to a penultim ate bar to litigation. See Carrion, 342 Md. at 275, 675 A.2d at 531 (noting that the elements of the arbitration system acted to discourage litigation of non-meritorious claims ); McCready, 330 Md. at 512, 624 A.2d at 1257 (1993) (stating that the Certificate is an indispensable step in disco uragin g litigatio n of m eritless cl aims thr ough a rbitration ). The plain langua ge of th e statute does n ot com port w ith Petitio ners ar gume nts. To go beyond the plain language would mean that when a simultane ous waiv er of arbitratio n is filed, the original Certificate would bind the plaintiff to the use and judgment of the original expert. Any subsequent information, including that gleaned through interrogatories and requests for production of documen ts or through testimony in other dep ositions or in court proceedings, would likewise be binding upon the c laimant. According to Petitioners, if the subsequent information was in any way inconsistent with the Certificate filed many months, if not years, before, it would render the Certificate invalid, barring the plaintiff from seeking any redress. Such a result does not conform with the plain language of the statute. The time period delineated in Section 3-2A-04 (b) also indica tes that the C ertificate 20 of Qualified Expert Requirement was not intended to be subject to th is kind of collateral attack. The Section requires that the Certificate be filed within 90 days of the date of the complain t, with extensions available upon a showing of good cause. Md. Code (1974, 1998 Repl. Vol., 2000 Sup p.), § 3-2A-0 4 (b)(1)(i) of th e Courts and Judicial Proceedings Article. Although this provide s sufficient tim e to obtain m edical records and possib ly obtain deposition testimony from the parties, it is certainly not adequate for the claimant to fu lly prepare his or her case on the merits. The strictly limited time period provided for securing a valid Certificate of Qualified Expert demonstrates the General Assembly s intention that the findings an d opinion s contained therein wo uld be prelim inary. To interpret the statute otherwise might effectively preclude many malpractice suits from ever proceeding on the merits. Our conclusion is consistent w ith the jurisprudence of this C ourt in Witte v. Azarian, 369 Md. 518, 801 A.2d 160 (2002), and the Court of Special Appeals in D Ang elo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 853 A.2d 813 (2004). In Witte, the petitioner, Dr. Jeffrey Witte, challenged the validity of the plaintiff s Certificate of Qualified E xpert based on the certifying expert s deposition testimony that approx imately 60% of his patien ts were referred from either attorneys or wo rkers c ompe nsation insuran ce carrie rs. Id. at 523, 801 A.2d at 163. Dr. W itte s challenge , although u ltimately unsucc essful, wa s permissible because it was based upon a statutory prerequisite for a valid certificate and only examined the circumstances in existence at the time of the Certificate s filing. 21 The factual scenario in D Ang elo, is similarly distinguishable from the c ase at bar. In D Angelo, the petitioner filed tw o Certificate s of Qua lified Expe rts that failed to individually name the defendant physicians in their opinions concerning the deviations from the applicable standards of care and that such deviations were the proximate causes of the injuries at issue. Id. at 635, 8 53 A.2 d at 816 . As in Witte, the defendant physicians and hospital chal leng ed th e val idity o f the Certificate based on its failure to comply with the terms o f the statute wh en it wa s filed. Id. at 635-36, 853 A.2d at 816. Were we to reach the oppos ite conclusio n, an otherw ise valid Ce rtificate of Qualified Expert would b e rendered invalid if the certifying expert at some later date became a professional witness or even died. Such a harsh result would be inconsistent with the intent of th e Ge nera l Ass emb ly. 5 Apparen t Authority In its motio n for su mmar y judgm ent, the Hospital also asserts that Respondents lacked sufficient evidence to create a qu estion of m aterial fact reg arding the a gency relations hip between the defendant physicians and the Hospital. The Hospital contends that the physicians were independent contractors and that no agency relationship e xists. The C ircuit Court, in orally granting the Hospital s motion for summary judgment, stated that there was 5 Because it is clear from the language of Section 3-2A-04 that a collateral attack based on subsequent events is not permitted, we need not reach the Court of Spe cial Appeals s application of the sham affidavit doctrine as stated in Pittman v. Atlantic Realty Co., 359 Md. 513, 529, 754 A .2d 1030, 1038 (2 000), because w e do not consider D r. Gordon s subseque nt affidav it. 22 insufficient evidence to support a continuation of the case on the basis of apparent author ity. We d isagree . In the context of medical malpractice litigation, we have endorsed the apparent authority theory of agency as stated in the Restatement (Second) of Agency Sectio n 267, which p rovides in p ertinent part: One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such a pparent ag ent is subject to liability to the third person for harm caused b y the lack of care or skill of the one appearing to be a servant or other agent as if he were such. See Mehlm an v. Pow ell, 281 Md. 269, 273, 378 A.2d 1121, 1123 (1977), quoting B.P. Oil Corp. v. Mabe, 279 M d. 632, 6 43, 370 A.2d 5 54, 560 (1977 ). In Mehlm an v. Pow ell, a case analo gous to the case sub judice, the plaintiff visited a hospital emergency room f or medical treatment. The plaintiff had no knowledge that the emergency department of the hospital was not operated by the hospital, but rather by an independent contrac tor. An emerg ency roo m physic ian, Dr. Cosca, ordered an electrocardiogram, a physical examination, x-rays, and other various tests, and subseque ntly made an initial diagnosis of pneumonitis. At trial, it was undisputed that the electrocardiogram revealed severe abnormalities, that Dr. Cosca s reading of it was erroneous, and that this misreading contributed to the plaintiff s dem ise. Mehlman, 281 Md. at 271, 378 A.2d at 1122. Judge Eldridge, writing for this Court, explicated wh y the Court rejected the hospital s 23 argument that it could no t be vicariou sly liable for the actions of an independent contracting physician s negligence: [A] [h]ospital . . . is eng aged in the business o f providing health care services. One enters the hospital for no other reason. When [the plaintiff ] made the decision to go to [the hospital], he obviously desired medical services and equally obviously was relying on [the hospital] to provide them. Furthermore, the [h]ospital and the emergency room are located in the same general structure. . . . It is not to be expected, and nothing put [the plaintiff] on notice, that the various procedures and department of a complex, modern hospital . . . are in fact franchised out to various independent contractors. Id. at 274, 378 A.2d at 1124. Ultimately, we held that the hospital was liable for the physician s negligence because it had represented that the staff in the emergenc y room were its employees, and that the representation caused the decedent to rely on th e staff s skill. Id. at 275, 3 78 A.2 d at 112 4. In the case sub judice, as a prerequisite to admission into the Hospital s emergency room, Ms. Lyons was required to sign a consent form containing the following language: MEDICAL CONSENT: I hereby voluntarily consent to such diagnostic procedu res and ho spital care an d to such therap eutic treatment by doctors of the staff of Fort W ashington Hospital, which, in their judgment becomes necessary while I am an Emergency Department patient or an inpatient in sa id hospital. The language clearly states that the doctors practicing in the Hospital are Hospital staff. Moreover, the record indicates that at the time of the events at issue in the case at bar, Dr. Debbas was the President of the Medical Staff and Chief of Surgery at the Hospital. This fact, when considered in conjunction with the language of the medical consent form and our 24 determination in Mehlman, creates a gen uine dispu te of materia l fact with respect to the relationship between the defendant p hysicians and the Hospital as w ell as Ms. Lyons s reliance thereon. Therefore, we agree with the Court of Special Appeals s determination that the Circ uit C ourt imprope rly gra nted sum mary judgment in favor of Fort Washington Hosp ital. Conclusion Because we determine that Respondents Certificate of Qualified Expert is valid and that there was sufficient evidence of record to create a genuine issue of material fact on the issue of apparent authority and vicarious liability, we shall affirm the Court of Special Appeals s decision to reverse both the Circuit Court s dismissal of Respondents claim against Dr. Debba s and vac ate its grant of summa ry judgment in favor of Fort Washington Hosp ital. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRM ED WITH CO STS. 25

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